Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no Underwriter shall convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, (iv) constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no Underwriter shall prepare, convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “ABS informational and computational material,” as defined in Item 1101(a) of Regulation AB under the Securities Act (“ABS Informational and Computational Material”), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company. (b) Each Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (each, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) business day prior to the date of first use thereof or such later date as may be agreed to by the Company; except that: (i) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and (ii) any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an Underwriter to the Company not later than the later of (A) one (1) business day prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (B) the date of first use of such Free Writing Prospectus. (c) Each Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such Underwriter pursuant to Section 9(b) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such Underwriter in connection with its offer and sale of the Offered Certificates. (d) Each Underwriter represents and warrants to the Company that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company pursuant to Section 9(b) hereof did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investor, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, no Underwriter makes any representation or warranty to the extent such misstatements or omissions are based upon or arise out of an untrue statement or omission in the Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, which information was not corrected by information subsequently supplied by the Company, the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time of Sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale). (e) The Company agrees to file with the Commission the following: (i) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Issuer Free Writing Prospectus”); (ii) Any Free Writing Prospectus or portion thereof delivered by an Underwriter to the Company pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed); (iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and (iv) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and (v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus. (f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e) hereof by the Company shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that: (i) any Free Writing Prospectus or portion thereof required to be filed that contains only a description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use; (ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and (iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus. (g) Each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus. (h) Notwithstanding the provisions of Section 9(g) hereof, each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus. (i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g) and 9(h) hereof, neither the Company nor any Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission. (j) The Company and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party shall contain the following legend: “The depositor filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) for the offering to which this communication relates. Before you invest, you should read the prospectus in the registration statement and other documents the depositor has filed with the Securities and Exchange Commission for more complete information about the depositor, the issuing entity and this offering. You may get these documents for free by visiting XXXXX on the Securities and Exchange Commission website at xxx.xxx.xxx. Alternatively, the depositor, Deutsche Bank Securities, Inc., any underwriter or any dealer participating in this offering will arrange to send you the prospectus after filing if you request it by calling toll free 1-800-503-4611 or by emailing xxxxxxxxxx.xxxx@xx.xxx.” (k) The Company and the Underwriters each agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 for a period of three (3) years following the initial bona fide offering of the Offered Certificates. (l) In the event that the Company becomes aware, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Issuer Free Writing Prospectus”), the Company shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company: (i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses; (ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and (iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591. (m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs. (n) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors. (o) Each Underwriter covenants with the Company that after the Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor unless such information is preceded or accompanied by the final Prospectus.
Appears in 21 contracts
Samples: Underwriting Agreement (COMM 2015-Lc23 Mortgage Trust), Underwriting Agreement (COMM 2015-Lc23 Mortgage Trust), Underwriting Agreement (COMM 2015-Ccre23 Mortgage Trust)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no Underwriter shall convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i1) is made in reliance on Rule 134 under the Securities Act, (ii2) is made in reliance on Rule 172 under the Securities Act, (iii3) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iv4) constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no Underwriter The Underwriters shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “ABS informational and computational material,” as defined in Item 1101(a) of Regulation AB under the Securities Act (“ABS Informational and Computational Material”), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(b) Each Underwriter shall deliver to the Company Depositor, no later than two business days prior to the date of first use thereof, (a) any Underwriter Free Writing Prospectus prepared by or on behalf of such Underwriter that contains any “issuer information”, as defined in Rule 433(h) under the Securities Act1 (“Issuer Information”) (which the parties hereto agree includes, without limitation, the Sellers’ Information) and (b) any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (each, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) business day prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
(i) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to Certificates. Notwithstanding the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and
(ii) foregoing, any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an Underwriter the Underwriters to the Company Depositor not later than the later of (Aa) one (1) two business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (Bb) the date of first use of such Free Writing Prospectus.
(c) Each Underwriter represents and warrants to the Company Depositor that the Free Writing Prospectuses to be furnished to the Company Depositor by such the Underwriter pursuant to Section 9(b8(b) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors purchasers of Offered Certificates by such the Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each Underwriter represents and warrants to the Company Depositor that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company Depositor pursuant to Section 9(b) hereof 8(b), when read together with all other Time of Sale Information, did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investorTime of Sale, and will not as of the Closing Date, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and misleading; provided however, that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, no Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, which information was not corrected by information Corrective Information subsequently supplied by the Company, Depositor or any Seller to the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time of Sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale)Sale.
(e) The Company Depositor agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Any Issuer Free Writing Prospectus”);
(ii) Any Free Writing Prospectus or portion thereof delivered by an the Underwriter to the Company Depositor pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed8(b);; and
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company Depositor or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e8(e) hereof by the Company Depositor shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may shall be filed by the Company Depositor with the Commission within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may shall be filed by the Company Depositor with the Commission not later than the later of the due date for filing of the final Prospectus relating to the Offered Certificates pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and;
(iii) any Any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv8(e)(iii) hereof mayshall, if no payment has been made or consideration has been given by or on behalf of the Company Depositor for the Free Writing Prospectus or its dissemination, be filed by the Company Depositor with the Commission not later than four (4) business days after the Company Depositor becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus; and
(iv) The Depositor shall not be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any other offering participant other than the Depositor, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (B) any Free Writing Prospectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does not reflect the final terms thereof.
(g) Each Underwriter (with shall provide to the reasonable cooperation of the Company) shall file with the Commission Depositor any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or it and distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing ProspectusProspectus and the Depositor shall file such Free Writing Prospectus with the Commission.
(h) Notwithstanding the provisions of Section 9(g) hereof8(g), each Underwriter (with shall provide to the reasonable cooperation of the Company) Depositor, who shall then file with the Commission Commission, any Free Writing Prospectus for which such the Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company Depositor or any other offering participant, not later than four (4) business days after such the Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g8(e) and 9(h) hereof8(g), neither the Company Depositor nor any Underwriter the Underwriters shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company Depositor and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party it shall contain a legend substantially in the following legendform: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in the that registration statement and other documents the depositor has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity depositor and this offering. You may get these documents for free by visiting XXXXX on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxx. Alternatively, the depositor, Deutsche Bank Securities, Inc., any underwriter or any dealer participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll free 10-800000-503000-4611 0000 or by emailing xxxxxxxxxx.xxxx@xx.xxx.”
(k) The Company and the Underwriters each agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 for a period of three (3) years following the initial bona fide offering of the Offered Certificatesxxxx-xxxxxxxxxx@xxxxxxxx.xxx.
(l1) In the event that the Company Depositor becomes awareaware that, at any time between as of the Time of Sale or Sale, any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains contained any untrue statement of a material fact or omits omitted to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information)therein, in the light of the circumstances under which they were made, not misleading misleading, when read in conjunction with the Time of Sale Information (such Issuer Free Writing Prospectus a “Defective Issuer Free Writing Prospectus”), the Company Depositor shall notify the Underwriters of such untrue statement or omission thereof within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company Depositor shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In ) and (2) in the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any Underwriter becomes aware that that, as of the Time of Sale, any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains contained any untrue statement of a material fact or omits omitted to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information)therein, in the light of the circumstances under which they were made, not misleading misleading, when read in conjunction with the Time of Sale Information (such Underwriter Free Writing Prospectus, a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission Depositor thereof within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the CompanyDepositor:
(iA) if If the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus with Corrective Information that corrects the material misstatement in or omission from the Defective Underwriter Free Writing Prospectus (such corrected Underwriter Free Writing Prospectus, a “Corrected Underwriter Free Writing Prospectus” and, together with a the Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(iiB) either (A) deliver Deliver the Corrected Free Writing Prospectus to each investor purchaser of an Offered Certificate which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or purchaser;
(BC) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each Notify such investor purchaser in a prominent prompt fashion that the any prior contract of sale with such investor purchaser has been terminated, and of such investorpurchaser’s rights as a result of termination of such agreement and agreement;
(yD) provide Provide such investor purchaser with an opportunity to affirmatively agree in writing to purchase the Offered Certificates enter into a new contract of sale on the terms described in the Corrected Free Writing Prospectus; and
(iiiE) comply Comply with any other requirements for reformation of the original contract of sale with such investorsale, as described in Section IV.A.2.c IV.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(nl) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company Depositor that after the final Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates that contains Issuer Information to a prospective investor purchaser of Offered Certificates unless such information is preceded or accompanied by the final Prospectus.
(m) The Depositor and each Underwriter agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 8 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
Appears in 10 contracts
Samples: Underwriting Agreement (JPMBB Commercial Mortgage Securities Trust 2014-C23), Underwriting Agreement (JPMBB Commercial Mortgage Securities Trust 2014-C22), Underwriting Agreement (JPMBB Commercial Mortgage Securities Trust 2014-C21)
Offering Communications; Free Writing Prospectuses. It is understood that the Underwriters propose to offer the Offered Certificates for sale as set forth in this Agreement, the Time of Sale Information and the Prospectus. In connection with the offering of the Offered Certificates, the Underwriters may each prepare and provide to prospective investors Free Writing Prospectuses, or portions thereof, subject to the following conditions (ato which such conditions each Underwriter agrees (provided that no Underwriter shall be responsible for any breach of the following conditions by any other Underwriter)):
(i) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of Prospectus, the Securities Act, no Underwriter Underwriters shall not convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i1) is made in reliance on Rule 134 under the Securities 1933 Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii2) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities 1933 Act, (iv3) is made in reliance on Rule 172 under the 1933 Act, (4) constitutes Time of Sale Information or a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) Prospectus that does not constitute Time of Sale Information, or (v5) constitutes such other written communication approved by the Company Depositor in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason)Depositor, no Underwriter the Underwriters shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus “computational materials” or “ABS term sheets” in reliance on the “Xxxxxx/PSA” no-action letters or any “ABS informational and computational material,” as defined in Item 1101(a) of Regulation AB under the Securities 1933 Act (“ABS Informational and Computational Material”), in reliance upon Rules 167 and 426 under the Securities 1933 Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(bii) Each Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (eachDepositor, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) business day prior to the date of first use thereof or such later date as may be agreed to by the CompanyDepositor, any Free Writing Prospectus that was prepared by or on behalf of such Underwriter (an “Underwriter Free Writing Prospectus”) and that contains any “issuer information,” as defined in Rule 433(h) under the 1933 Act and footnote 271 of the Commission’s Securities Offering Reform Release No. 33-8591 (“Issuer Information”) (which the parties hereto agree includes, without limitation, Mortgage Loan Seller Information); except that:
provided that (ia) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by Depositor no later than the later of (Ax) the date such final terms have been established for all classes of the Offered Certificates or and (By) the date of first use; and
, and (iib) any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an such Underwriter to the Company not Depositor no later than the later of (Ax) one (1) business day prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities 1933 Act or such later date as may be agreed to by the Depositor and (By) the date of first use of such Free Writing Prospectus.
(ciii) Each Underwriter represents and warrants to the Company Depositor that the Free Writing Prospectuses to be furnished to the Company Depositor by such Underwriter pursuant to Section 9(b4(ii) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such Underwriter in connection with its offer and sale of the Offered Certificates.
(div) Each Underwriter represents and warrants to the Company Depositor that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company Depositor pursuant to Section 9(b4(ii) hereof did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investorTime of Sale, and will not as of the Closing Date, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained thereintherein (when read in conjunction with the Time of Sale Information), in the light of the circumstances under which they were made, not misleading and that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Actmisleading; provided, no however, that such Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company to such UnderwriterInformation, the Mortgage Loan Seller Information or the Transaction Party Information), which information was not corrected by information Corrective Information subsequently supplied by the Company, the related Loan Seller Depositor or the related Transaction Party Mortgage Loan Seller to such Underwriter within a reasonable period of time prior to the Time of Sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale)Sale.
(ev) The Company Depositor agrees to file with the Commission the following:
(iA) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Each Issuer Free Writing Prospectus”);
(iiB) Any Free Writing Prospectus or portion thereof delivered by an any Underwriter to the Company Depositor pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed4(ii);
(iiiC) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and;
(ivD) Any Free Writing Prospectus for which the Company Depositor or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(vE) any Any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus. The Depositor is required to file such Free Writing Prospectuses with the Commission in electronic format and the Underwriters shall 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) or such other format as is acceptable to the Depositor, except to the extent that the Depositor, in its sole discretion, waives such requirements.
(fvi) Any Free Writing Prospectus required to be filed pursuant to Section 9(e4(v) hereof by the Company Depositor shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(iA) any Any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may shall be filed by the Company Depositor with the Commission within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(iiB) any Any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may shall be filed by the Company Depositor with the Commission not no later than the later of (i) the due date for filing of the final Prospectus relating to the Offered Certificates pursuant to Rule 424(b) under the Securities 1933 Act or and (ii) two (2) business days after the date of first use of such Free Writing Prospectus; and
(iiiC) any Any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv4(v)(D) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company Depositor for the Free Writing Prospectus or its dissemination, be filed by the Company Depositor with the Commission not later than four (4) business days after the Company Depositor becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(gvii) Each Underwriter (with the reasonable cooperation of the CompanyDepositor) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company Depositor pursuant to Section 9(b4(ii)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or it and distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(hviii) Notwithstanding the provisions of Section 9(g) hereof4(vii), each Underwriter (with the reasonable cooperation of the CompanyDepositor) shall file with the Commission any Free Writing Prospectus for which such Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company Depositor or any other offering participant, not later than four (4) business days after such Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(iix) Notwithstanding the provisions of Sections 9(e4(v) (other than 9(e)(iii4(v)(C)), 9(g4(vii) and 9(h4(viii), (A) hereof, neither the Company Depositor nor any Underwriter shall be required to file (A1) any Issuer Information contained in any Underwriter Free Writing Prospectus or Free Writing Prospectus of an Underwriter or any other offering participant other than the CompanyDepositor, if such information is included (including through incorporation by reference) in a prospectus or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B2) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof thereof, or (C3) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission, and (B) no Underwriter shall be required to file any Free Writing Prospectus to the extent that the information contained therein is included in a prospectus or Free Writing Prospectus previously filed that relates to the offering of the Offered Certificates.
(jx) The Company Depositor and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party it shall contain the following legend, or substantially equivalent legend that complies with Rule 433 of the 1933 Act: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission SEC (File No. Number 333-193376180779) for the offering to which this communication free writing prospectus relates. Before you invest, you should read the prospectus in the registration statement and other documents the depositor has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity and this offering. You may get these documents for free by visiting XXXXX on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxx. Alternatively, the depositor, Deutsche Bank Securities, Inc., any underwriter or any dealer participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll free 10-800000-503000-4611 0000 or by emailing xxxxxxxxxx.xxxx@xx.xxxemail to xxxxxxxxxx@xx.xxx.”
(kxi) The Company Depositor and the Underwriters each Underwriter agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 4, and that have not been filed, for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(lxii) In (A) If the event that the Company Depositor becomes awareaware that, at any time between as of the Time of Sale or any Subsequent Time as of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in the light of the circumstances under which they were made, not misleading misleading, or conflicted or conflicts with the information contained in the Registration Statement (a “Defective Issuer Free Writing Prospectus”), the Company Depositor shall notify the Underwriters of such untrue statement or omission or conflict within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company Depositor shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement misstatement, omission or omission conflict in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company that after the Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor unless such information is preceded or accompanied by the final Prospectus.
Appears in 9 contracts
Samples: Underwriting Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2013-C10), Underwriting Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2013-C10), Underwriting Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2014-C14)
Offering Communications; Free Writing Prospectuses. It is understood that the Underwriters propose to offer the Offered Certificates for sale as set forth in this Agreement, the Time of Sale Information and the Prospectus. In connection with the offering of the Offered Certificates, the Underwriters may each prepare and provide to prospective investors Free Writing Prospectuses, or portions thereof, subject to the following conditions (ato which such conditions each Underwriter agrees (provided that no Underwriter shall be responsible for any breach of the following conditions by any other Underwriter)):
(i) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of Prospectus, the Securities Act, no Underwriter Underwriters shall not convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i1) is made in reliance on Rule 134 under the Securities 1933 Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii2) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities 1933 Act, (iv3) is made in reliance on Rule 172 under the 1933 Act, (4) constitutes Time of Sale Information or a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) Prospectus that does not constitute Time of Sale Information, or (v5) constitutes such other written communication approved by the Company Depositor in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason)Depositor, no Underwriter the Underwriters shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus “computational materials” or “ABS term sheets” in reliance on the “Xxxxxx/PSA” no-action letters or any “ABS informational and computational material,” as defined in Item 1101(a) of Regulation AB under the Securities 1933 Act (“ABS Informational and Computational Material”), in reliance upon Rules 167 and 426 under the Securities 1933 Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(bii) Each Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (eachDepositor, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) business day prior to the date of first use thereof or such later date as may be agreed to by the CompanyDepositor, any Free Writing Prospectus that was prepared by or on behalf of such Underwriter (an “Underwriter Free Writing Prospectus”) and that contains any “issuer information,” as defined in Rule 433(h) under the 1933 Act and footnote 271 of the Commission’s Securities Offering Reform Release No. 33-8591 (“Issuer Information”) (which the parties hereto agree includes, without limitation, Mortgage Loan Seller Information); except that:
provided that (ia) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by Depositor no later than the later of (Ax) the date such final terms have been established for all classes of the Offered Certificates or and (By) the date of first use; and
, and (iib) any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an such Underwriter to the Company not Depositor no later than the later of (Ax) one (1) business day prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities 1933 Act or such later date as may be agreed to by the Depositor and (By) the date of first use of such Free Writing Prospectus.
(ciii) Each Underwriter represents and warrants to the Company Depositor that the Free Writing Prospectuses to be furnished to the Company Depositor by such Underwriter pursuant to Section 9(b4(ii) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such Underwriter in connection with its offer and sale of the Offered Certificates.
(div) Each Underwriter represents and warrants to the Company Depositor that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company Depositor pursuant to Section 9(b4(ii) hereof did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investorTime of Sale, and will not as of the Closing Date, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained thereintherein (when read in conjunction with the Time of Sale Information), in the light of the circumstances under which they were made, not misleading and that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Actmisleading; provided, no however, that such Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company to such UnderwriterInformation, the Mortgage Loan Seller Information or the Transaction Party Information), which information was not corrected by information Corrective Information subsequently supplied by the Company, the related Loan Seller Depositor or the related Transaction Party Mortgage Loan Seller to such Underwriter within a reasonable period of time prior to the Time of Sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale)Sale.
(ev) The Company Depositor agrees to file with the Commission the following:
(iA) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Each Issuer Free Writing Prospectus”);
(iiB) Any Free Writing Prospectus or portion thereof delivered by an any Underwriter to the Company Depositor pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed4(ii);
(iiiC) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and;
(ivD) Any Free Writing Prospectus for which the Company Depositor or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(vE) any Any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus. The Depositor is required to file such Free Writing Prospectuses with the Commission in electronic format and the Underwriters shall 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) or such other format as is acceptable to the Depositor, except to the extent that the Depositor, in its sole discretion, waives such requirements.
(fvi) Any Free Writing Prospectus required to be filed pursuant to Section 9(e4(v) hereof by the Company Depositor shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(iA) any Any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may shall be filed by the Company Depositor with the Commission within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(iiB) any Any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may shall be filed by the Company Depositor with the Commission not no later than the later of (i) the due date for filing of the final Prospectus relating to the Offered Certificates pursuant to Rule 424(b) under the Securities 1933 Act or and (ii) two (2) business days after the date of first use of such Free Writing Prospectus; and
(iiiC) any Any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv4(v)(D) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company Depositor for the Free Writing Prospectus or its dissemination, be filed by the Company Depositor with the Commission not later than four (4) business days after the Company Depositor becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(gvii) Each Underwriter (with the reasonable cooperation of the CompanyDepositor) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company Depositor pursuant to Section 9(b)4(ii) hereof) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or it and distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(hviii) Notwithstanding the provisions of Section 9(g4(vii) hereof, each Underwriter (with the reasonable cooperation of the CompanyDepositor) shall file with the Commission any Free Writing Prospectus for which such Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company Depositor or any other offering participant, not later than four (4) business days after such Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(iix) Notwithstanding the provisions of Sections 9(e4(v) (other than 9(e)(iii4(v)(C)), 9(g4(vii) and 9(h4(viii) hereof, (A) neither the Company Depositor nor any Underwriter shall be required to file (A1) any Issuer Information contained in any Underwriter Free Writing Prospectus or Free Writing Prospectus of an Underwriter or any other offering participant other than the CompanyDepositor, if such information is included (including through incorporation by reference) in a prospectus or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B2) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof thereof, or (C3) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission, and (B) no Underwriter shall be required to file any Free Writing Prospectus to the extent that the information contained therein is included in a prospectus or Free Writing Prospectus previously filed that relates to the offering of the Offered Certificates.
(jx) The Company Depositor and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party it shall contain the following legend, or substantially equivalent legend that complies with Rule 433 of the 1933 Act: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission SEC (File No. Number 333-193376180779) for the offering to which this communication free writing prospectus relates. Before you invest, you should read the prospectus in the registration statement and other documents the depositor has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity and this offering. You may get these documents for free by visiting XXXXX on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxx. Alternatively, the depositor, Deutsche Bank Securities, Inc., any underwriter or any dealer participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll free 10-800000-503000-4611 0000 or by emailing xxxxxxxxxx.xxxx@xx.xxxemail to xxxxxxxxxx@xx.xxx.”
(kxi) The Company Depositor and the Underwriters each Underwriter agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 4, and that have not been filed, for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(lxii) In (A) If the event that the Company Depositor becomes awareaware that, at any time between as of the Time of Sale or any Subsequent Time as of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in the light of the circumstances under which they were made, not misleading misleading, or conflicted or conflicts with the information contained in the Registration Statement (a “Defective Issuer Free Writing Prospectus”), the Company Depositor shall notify the Underwriters of such untrue statement or omission or conflict within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company Depositor shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement misstatement, omission or omission conflict in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company that after the Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor unless such information is preceded or accompanied by the final Prospectus.
Appears in 6 contracts
Samples: Underwriting Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2015-C20), Underwriting Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2015-C21), Underwriting Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2015-C20)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no Underwriter shall convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, (iv) constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no Underwriter shall prepare, convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “ABS informational and computational material,” as defined in Item 1101(a) of Regulation AB under the Securities Act (“ABS Informational and Computational Material”), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(b) Each Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (each, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) business day prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
(i) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and
(ii) any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an Underwriter to the Company not later than the later of (A) one (1) business day prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (B) the date of first use of such Free Writing Prospectus.
(c) Each Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such Underwriter pursuant to Section 9(b) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each Underwriter represents and warrants to the Company that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company pursuant to Section 9(b) hereof did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investor, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, no Underwriter makes any representation or warranty to the extent such misstatements or omissions are based upon or arise out of an untrue statement or omission in the Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, which information was not corrected by information subsequently supplied by the Company, the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time of Sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale).
(e) The Company agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Issuer Free Writing Prospectus”);
(ii) Any Free Writing Prospectus or portion thereof delivered by an Underwriter to the Company pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e) hereof by the Company shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(g) Each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g) hereof, each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g) and 9(h) hereof, neither the Company nor any Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party shall contain the following legend: “The depositor filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) for the offering to which this communication relates. Before you invest, you should read the prospectus in the registration statement and other documents the depositor has filed with the Securities and Exchange Commission for more complete information about the depositor, the issuing entity and this offering. You may get these documents for free by visiting XXXXX EXXXX on the Securities and Exchange Commission website at xxx.xxx.xxxwxx.xxx.xxx. Alternatively, the depositor, Deutsche Bank Securities, Inc., any underwriter or any dealer participating in this offering will arrange to send you the prospectus after filing if you request it by calling toll free 1-800-503-4611 or by emailing xxxxxxxxxx.xxxx@xx.xxxpxxxxxxxxx.xxxx@xx.xxx.”
(k) The Company and the Underwriters each agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(l) In the event that the Company becomes aware, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Issuer Free Writing Prospectus”), the Company shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company that after the Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor unless such information is preceded or accompanied by the final Prospectus.
Appears in 6 contracts
Samples: Underwriting Agreement (COMM 2015-Ccre26 Mortgage Trust), Underwriting Agreement (COMM 2015-Ccre26 Mortgage Trust), Underwriting Agreement (COMM 2014-Ccre16 Mortgage Trust)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no the Underwriter shall not convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iviii) constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no the Underwriter shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “"ABS informational and computational material,” " as defined in Item 1101(a) of Regulation AB under the Securities Act (“"ABS Informational and Computational Material”"), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(bi) Each The Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (eachCompany, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) two business day days prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
thereof, (iA) any such Free Writing Prospectus prepared by or on behalf of the Underwriter that contains any "issuer information," as defined in Rule 433(h) under the Act ("Issuer Information"), and (B) any Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; andCertificates.
(ii) Notwithstanding the provisions of Section 12(b)(i), any such Free Writing Prospectus described therein that contains only ABS Informational and Computational Materials Material, may be delivered by an the Underwriter to the Company not later than the later of (Aa) one (1) two business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (Bb) the date of first use of such Free Writing Prospectus.
(c) Each The Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such the Underwriter pursuant to Section 9(b12(b)(i) hereof or (ii) will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such the Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each The Underwriter represents and warrants to the Company that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company pursuant to Section 9(b12(b)(i) hereof or (ii) did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investor, include any untrue statement of a material fact or omit to state any material fact required to be stated therein necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Actmisleading; provided, no however, that the Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, Underwriter which information was not corrected by information subsequently supplied by the Company, Company to the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time of Sale sale to the applicable investor of the Offered Certificates (including without limitationwhich resulted in a loss, by means claim, damage or liability arising out of a contract of sale)based upon such misstatement or omission.
(e) The Company agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Any Free Writing Prospectus that constitutes an “"issuer free writing prospectus,” " as defined in Rule 433(h) under the Securities Act (each, an “"Issuer Free Writing Prospectus”");
(ii) Any Free Writing Prospectus or portion thereof delivered by an the Underwriter to the Company pursuant to Section 9(b12(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offeringhereof; and
(iviii) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e12(e) hereof by the Company shall may be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the Final Prospectus relating to the Certificates pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and;
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv12(e)(iii) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus; and
(iv) the Company shall not be required to file (A) Issuer Information contained in any Free Writing Prospectus of an offering participant other than the Issuer, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (B) any Free Writing Prospectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does reflect the final terms thereof.
(g) Each The Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or it and distributed by or on behalf of such the Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g) hereof12(g), each the Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such the Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such the Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g12(e) and 9(h) hereof12(g), neither the Company nor any the Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriters Underwriter each agree that any Free Writing Prospectuses prepared by each such party the Underwriter shall contain the following legendlegend and any other legend that the Underwriter shall deem necessary or appropriate: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in the that registration statement and other documents the depositor has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity and this offering. You may get these documents for free by visiting XXXXX on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxx. Alternatively, the depositor, Deutsche Bank Securities, Inc., any underwriter or any dealer participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll toll-free 1-800-503294-4611 1322 or you e-mail a request to xx.xxxxxxxxxx_xxxxxxxxxxxx@xxxxxxxxxxxxxx.xxx. The securities may not be suitable for all investors. Banc of America Securities LLC and its affiliates may acquire, hold or sell positions in these securities, or in related derivatives, and may have an investment or commercial banking relationship with the depositor. The asset-backed securities referred to in these materials, and the asset pools backing them, are subject to modification or revision (including the possibility that one or more classes of securities may be split, combined or eliminated at any time prior to issuance or availability of a final prospectus) and are offered on a "when, as and if issued" basis. You understand that, when you are considering the purchase of these securities, a contract of sale will come into being no sooner than the date on which the relevant class has been priced and we have confirmed the allocation of securities to be made to you; any "indications of interest" expressed by emailing xxxxxxxxxx.xxxx@xx.xxxyou, and any "soft circles" generated by us, will not create binding contractual obligations for you or us. Because the asset-backed securities are being offered on a "when, as and if issued" basis, any such contract of sale will terminate, by its terms, without any further obligation or liability between us, if the securities themselves, or the particular class to which the contract relates, are not issued. Because the asset-backed securities are subject to modification or revision, any such contract also is conditioned upon the understanding that no material change will occur with respect to the relevant class of securities prior to the closing date. If a material change does occur with respect to such class, our contract will terminate, by its terms, without any further obligation or liability between us (the "Automatic Termination"). If an Automatic Termination occurs, we will provide you with revised offering materials reflecting the material change and give you an opportunity to purchase such class. To indicate your interest in purchasing the class, you must communicate to us your desire to do so within such timeframe as may be designated in connection with your receipt of the revised offering materials. The information contained in these materials may be based on assumptions regarding market conditions and other matters as reflected herein. Banc of America Securities LLC (the "Underwriter") makes no representation regarding the reasonableness of such assumptions or the likelihood that any such assumptions will coincide with actual market conditions or events, and these materials should not be relied upon for such purposes. The Underwriter and its affiliates, officers, directors, partners and employees, including persons involved in the preparation or issuance of these materials, may, from time to time, have long or short positions in, and buy and sell, the securities mentioned herein or derivatives thereof (including options). Information in these materials is current as of the date appearing on the material only. Information in these materials regarding any securities discussed herein supersedes all prior information regarding such securities. These materials are not to be construed as an offer to sell or the solicitation of any offer to buy any security in any jurisdiction where such an offer or solicitation would be illegal. This free writing prospectus is being delivered to you solely to provide you with information about the offering of the securities referred to in this free writing prospectus and to solicit an offer to purchase the securities, 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 securities until we have accepted your offer to purchase securities. You may withdraw your offer to purchase securities at any time prior to our acceptance of your offer. The information in this free writing prospectus supersedes information contained in any prior similar free writing prospectus relating to these securities prior to the time of your commitment to purchase. This free writing prospectus is not an offer to sell or solicitation of an offer to buy these securities in any state where such offer, solicitation or sale is not permitted. The Company and the Underwriter each agree that any Free Writing Prospectus prepared by the Underwriter and that is not an Issuer Free Writing Prospectus or that does not contain Issuer Information shall also contain the following legend: Neither the issuer of the securities nor any of its affiliates prepared, provided, approved or verified any statistical or numerical information presented herein, although that information may be based in part on loan level data provided by the issuer or its affiliates.”
(k) The Company and the Underwriters each Underwriter agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 12 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(l) In the event that the Company becomes aware, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Issuer Free Writing Prospectus”), the Company shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each The Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company Depositor that after the final Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor purchaser of Offered Certificates unless such information is preceded or accompanied by the final Prospectus.
Appears in 5 contracts
Samples: Underwriting Agreement (Banc of America Funding 2007-8 Trust), Underwriting Agreement (Banc of America Funding 2007-4 Trust), Underwriting Agreement (Banc of America Funding 2007-B Trust)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no the Underwriter shall not convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iviii) constitutes a “"free writing prospectus,” " as defined in Rule 405 under the Securities Act (a “"Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance"). Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no the Underwriter shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “"ABS informational and computational material,” " as defined in Item 1101(a) of Regulation AB under the Securities Act (“"ABS Informational and Computational Material”"), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(bi) Each The Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (eachCompany, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) two business day days prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
thereof, (iA) any such Free Writing Prospectus prepared by or on behalf of the Underwriter that contains any "issuer information," as defined in Rule 433(h) under the Act ("Issuer Information"), and (B) any Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; andCertificates.
(ii) Notwithstanding the provisions of Section (b)(i), any such Free Writing Prospectus described therein that contains only ABS Informational and Computational Materials may be delivered by an the Underwriter to the Company not later than the later of (Aa) one (1) two business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (Bb) the date of first use of such Free Writing Prospectus.
(c) Each The Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such the Underwriter pursuant to Section 9(b11(b)(i) hereof or (ii) will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such the Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each The Underwriter represents and warrants to the Company that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company pursuant to Section 9(b11(b)(i) hereof or (ii) did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investor, include any untrue statement of a material fact or omit to state any material fact required to be stated therein necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and misleading; provided however, that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, no Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, Underwriter which information was not corrected by information subsequently supplied by the Company, Company to the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time of Sale sale to the applicable investor of the Offered Certificates (including without limitationwhich resulted in a loss, by means claim, damage or liability arising out of a contract of sale)or based upon such misstatement or omission.
(e) The Company agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Any Free Writing Prospectus that constitutes an “"issuer free writing prospectus,” " as defined in Rule 433(h) under the Securities Act (each, an “Issuer Free Writing Prospectus”)Act;
(ii) Any Free Writing Prospectus or portion thereof delivered by an the Underwriter to the Company pursuant to Section 9(b11(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offeringhereof; and
(iviii) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e11(e) hereof by the Company shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the final Prospectus relating to the Certificates pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and;
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv11(e)(3) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus; and
(iv) the Company shall not be required to file (A) Issuer Information contained in any Free Writing Prospectus of an offering participant other than the Company, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (B) any Free Writing Prospectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does reflect the final terms thereof.
(g) Each The Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or it and distributed by or on behalf of such the Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g) hereof11(g), each the Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such the Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such the Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g11(e) and 9(h) hereof11(g), neither the Company nor any the Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriters Underwriter each agree that any Free Writing Prospectuses prepared by each such party it shall contain the following legend: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in the that registration statement and other documents the depositor has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity depositor and this offering. You may get these documents for free by visiting XXXXX EDGAR on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxxwww.sec.gov. Alternatively, the depositor, Deutsche Bank Securities, Inc.dexxxxxor, any underwriter or any dealer participating axx xxxxxx xarticipating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll toll-free 1-800-503294-4611 or by emailing xxxxxxxxxx.xxxx@xx.xxx1322.”
(k) The Company and the Underwriters each agree to retain all Underwriter agrex xx xxxxxx xxl Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 11 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(l) In the event that the Company becomes aware, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Issuer Free Writing Prospectus”), the Company shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company that after the Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor unless such information is preceded or accompanied by the final Prospectus.
Appears in 4 contracts
Samples: Underwriting Agreement (Banc of America Alternative Loan Trust 2006-4), Underwriting Agreement (Banc of America Alternative Loan Trust 2006-7), Underwriting Agreement (Banc of America Alternative Loan Trust 2006-5)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no the Underwriter shall not convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iviii) constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no the Underwriter shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “"ABS informational and computational material,” " as defined in Item 1101(a) of Regulation AB under the Securities Act (“"ABS Informational and Computational Material”"), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(bi) Each The Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (eachCompany, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) two business day days prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
thereof, (iA) any such Free Writing Prospectus prepared by or on behalf of the Underwriter that contains any "issuer information," as defined in Rule 433(h) under the Act ("Issuer Information"), and (B) any Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; andCertificates.
(ii) Notwithstanding the provisions of Section 12(b)(i), any such Free Writing Prospectus described therein that contains only ABS Informational and Computational Materials Material, may be delivered by an the Underwriter to the Company not later than the later of (Aa) one (1) two business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (Bb) the date of first use of such Free Writing Prospectus.
(c) Each The Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such the Underwriter pursuant to Section 9(b12(b)(i) hereof or (ii) will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such the Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each The Underwriter represents and warrants to the Company that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company pursuant to Section 9(b12(b)(i) hereof or (ii) did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investor, include any untrue statement of a material fact or omit to state any material fact required to be stated therein necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Actmisleading; provided, no however, that the Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, Underwriter which information was not corrected by information subsequently supplied by the Company, Company to the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time of Sale sale to the applicable investor of the Offered Certificates (including without limitationwhich resulted in a loss, by means claim, damage or liability arising out of a contract of sale)based upon such misstatement or omission.
(e) The Company agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Any Free Writing Prospectus that constitutes an “"issuer free writing prospectus,” " as defined in Rule 433(h) under the Securities Act (each, an “"Issuer Free Writing Prospectus”");
(ii) Any Free Writing Prospectus or portion thereof delivered by an the Underwriter to the Company pursuant to Section 9(b12(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offeringhereof; and
(iviii) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e12(e) hereof by the Company shall may be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the Final Prospectus relating to the Certificates pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and;
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv12(e)(iii) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus; and
(iv) the Company shall not be required to file (A) Issuer Information contained in any Free Writing Prospectus of an offering participant other than the Issuer, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (B) any Free Writing Prospectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does reflect the final terms thereof.
(g) Each The Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or it and distributed by or on behalf of such the Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g) hereof12(g), each the Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such the Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such the Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g12(e) and 9(h) hereof12(g), neither the Company nor any the Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriters Underwriter each agree that any Free Writing Prospectuses prepared by each such party the Underwriter shall contain the following legendlegend and any other legend that the Underwriter shall deem necessary or appropriate: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in the that registration statement and other documents the depositor has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity and this offering. You may get these documents for free by visiting XXXXX EDGAR on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxxwww.sec.gov. Alternatively, the depositor, Deutsche Bank Securities, Inc.txx xepositor, any underwriter or any dealer underwritxx xx xxx xealer participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll toll-free 1-800-503294-4611 1322 or you e-mail a request to dg.prospectus_distribution@bofasecurities.com. The securities may not xx xxxxxxxx xxx xxx xxxxxxxxx. Xxnc of America Securities LLC and its affiliates may acquire, hold or sell positions in these securities, or in related derivatives, and may have an investment or commercial banking relationship with the depositor. The asset-backed securities referred to in these materials, and the asset pools backing them, are subject to modification or revision (including the possibility that one or more classes of securities may be split, combined or eliminated at any time prior to issuance or availability of a final prospectus) and are offered on a "when, as and if issued" basis. You understand that, when you are considering the purchase of these securities, a contract of sale will come into being no sooner than the date on which the relevant class has been priced and we have confirmed the allocation of securities to be made to you; any "indications of interest" expressed by emailing xxxxxxxxxx.xxxx@xx.xxxyou, and any "soft circles" generated by us, will not create binding contractual obligations for you or us. Because the asset-backed securities are being offered on a "when, as and if issued" basis, any such contract of sale will terminate, by its terms, without any further obligation or liability between us, if the securities themselves, or the particular class to which the contract relates, are not issued. Because the asset-backed securities are subject to modification or revision, any such contract also is conditioned upon the understanding that no material change will occur with respect to the relevant class of securities prior to the closing date. If a material change does occur with respect to such class, our contract will terminate, by its terms, without any further obligation or liability between us (the "Automatic Termination"). If an Automatic Termination occurs, we will provide you with revised offering materials reflecting the material change and give you an opportunity to purchase such class. To indicate your interest in purchasing the class, you must communicate to us your desire to do so within such timeframe as may be designated in connection with your receipt of the revised offering materials. The information contained in these materials may be based on assumptions regarding market conditions and other matters as reflected herein. Banc of America Securities LLC (the "Underwriter") makes no representation regarding the reasonableness of such assumptions or the likelihood that any such assumptions will coincide with actual market conditions or events, and these materials should not be relied upon for such purposes. The Underwriter and its affiliates, officers, directors, partners and employees, including persons involved in the preparation or issuance of these materials, may, from time to time, have long or short positions in, and buy and sell, the securities mentioned herein or derivatives thereof (including options). Information in these materials is current as of the date appearing on the material only. Information in these materials regarding any securities discussed herein supersedes all prior information regarding such securities. These materials are not to be construed as an offer to sell or the solicitation of any offer to buy any security in any jurisdiction where such an offer or solicitation would be illegal. This free writing prospectus is being delivered to you solely to provide you with information about the offering of the securities referred to in this free writing prospectus and to solicit an offer to purchase the securities, 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 securities until we have accepted your offer to purchase securities. You may withdraw your offer to purchase securities at any time prior to our acceptance of your offer. The information in this free writing prospectus supersedes information contained in any prior similar free writing prospectus relating to these securities prior to the time of your commitment to purchase. This free writing prospectus is not an offer to sell or solicitation of an offer to buy these securities in any state where such offer, solicitation or sale is not permitted. The Company and the Underwriter each agree that any Free Writing Prospectus prepared by the Underwriter and that is not an Issuer Free Writing Prospectus or that does not contain Issuer Information shall also contain the following legend: Neither the issuer of the securities nor any of its affiliates prepared, provided, approved or verified any statistical or numerical information presented herein, although that information may be based in part on loan level data provided by the issuer or its affiliates.”
(k) The Company and the Underwriters each Underwriter agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 12 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(l) In the event that the Company becomes aware, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Issuer Free Writing Prospectus”), the Company shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each The Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company Depositor that after the final Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor purchaser of Offered Certificates unless such information is preceded or accompanied by the final Prospectus.
Appears in 4 contracts
Samples: Underwriting Agreement (Banc of America Funding 2007-7 Trust), Underwriting Agreement (Banc of America Funding 2007-1 Trust), Underwriting Agreement (Banc of America Funding Corp)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no the Underwriter shall not convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iviii) constitutes a “"free writing prospectus,” " as defined in Rule 405 under the Securities Act (a “"Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance"). Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no the Underwriter shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “"ABS informational and computational material,” " as defined in Item 1101(a) of Regulation AB under the Securities Act (“"ABS Informational and Computational Material”"), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(bi) Each The Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (eachCompany, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) two business day days prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
thereof, (iA) any such Free Writing Prospectus prepared by or on behalf of the Underwriter that contains any "issuer information," as defined in Rule 433(h) under the Act ("Issuer Information"), and (B) any Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; andCertificates.
(ii) Notwithstanding the provisions of Section (b)(i), any such Free Writing Prospectus described therein that contains only ABS Informational and Computational Materials may be delivered by an the Underwriter to the Company not later than the later of (Aa) one (1) two business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (Bb) the date of first use of such Free Writing Prospectus.
(c) Each The Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such the Underwriter pursuant to Section 9(b11(b)(i) hereof or (ii) will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such the Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each The Underwriter represents and warrants to the Company that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company pursuant to Section 9(b11(b)(i) hereof or (ii) did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investor, include any untrue statement of a material fact or omit to state any material fact required to be stated therein necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and misleading; provided however, that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, no Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, Underwriter which information was not corrected by information subsequently supplied by the Company, Company to the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time of Sale sale to the applicable investor of the Offered Certificates (including without limitationwhich resulted in a loss, by means claim, damage or liability arising out of a contract of sale)or based upon such misstatement or omission.
(e) The Company agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Any Free Writing Prospectus that constitutes an “"issuer free writing prospectus,” " as defined in Rule 433(h) under the Securities Act (each, an “Issuer Free Writing Prospectus”)Act;
(ii) Any Free Writing Prospectus or portion thereof delivered by an the Underwriter to the Company pursuant to Section 9(b11(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offeringhereof; and
(iviii) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e11(e) hereof by the Company shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the final Prospectus relating to the Certificates pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and;
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv11(e)(3) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus; and
(iv) the Company shall not be required to file (A) Issuer Information contained in any Free Writing Prospectus of an offering participant other than the Company, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (B) any Free Writing Prospectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does reflect the final terms thereof.
(g) Each The Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or it and distributed by or on behalf of such the Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g) hereof11(g), each the Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such the Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such the Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g11(e) and 9(h) hereof11(g), neither the Company nor any the Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriters Underwriter each agree that any Free Writing Prospectuses prepared by each such party it shall contain the following legend: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in the that registration statement and other documents the depositor has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity depositor and this offering. You may get these documents for free by visiting XXXXX EDGAR on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxxwww.sec.gov. Alternatively, the depositor, Deutsche Bank Securities, Inc.xxx xepositor, any underwriter or any dealer underwritex xx xxx xxaler participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll toll-free 1-800-503294-4611 or by emailing xxxxxxxxxx.xxxx@xx.xxx1322.”
(k) The Company and the Underwriters each Underwriter agree to retain all Free rxxxxx xxx Xxxx Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 11 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(l) In the event that the Company becomes aware, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Issuer Free Writing Prospectus”), the Company shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company that after the Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor unless such information is preceded or accompanied by the final Prospectus.
Appears in 4 contracts
Samples: Underwriting Agreement (Banc of America Alternative Loan Trust 2006-9), Underwriting Agreement (Banc of America Mortgage 2007-1 Trust), Underwriting Agreement (Banc of America Alternative Loan Trust 2007-2)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no Underwriter shall convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i1) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii2) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iv3) constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no The Underwriter shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “"ABS informational and computational material,” " as defined in Item 1101(a) of Regulation AB under the Securities Act (“"ABS Informational and Computational Material”"), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(b) Each Underwriter shall deliver to the Company Depositor, no later than two business days prior to the date of first use thereof, (a) any Underwriter Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (each, an “Underwriter Free Writing Prospectus”) that contains any "issuer information", as defined in Rule 433(h) under the Securities Act(1) ("Issuer Information by no later than one Information") (1which the parties hereto agree includes, without limitation, Seller's Information) business day prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
and (ib) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to Certificates. Notwithstanding the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and
(ii) foregoing, any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an the Underwriter to the Company Depositor not later than the later of (Aa) one (1) two business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (Bb) the date of first use of such Free Writing Prospectus.
(c) Each Underwriter represents and warrants to the Company Depositor that the Free Writing Prospectuses to be furnished to the Company Depositor by such the Underwriter pursuant to Section 9(b8(b) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors purchasers of Offered Certificates by such the Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each Underwriter represents and warrants to the Company Depositor that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company Depositor pursuant to Section 9(b) hereof 8(b), when read together with all Time of Sale Information, did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investorTime of Sale, and will not as of the Closing Date, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and misleading; provided however, that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, no Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, which information was not corrected by information Corrective Information subsequently supplied by the CompanyDepositor or any Seller to the Underwriter far enough in advance of the Time of Sale (in any event, no later than two business days prior to the related Loan Seller or Time of Sale) so that the related Transaction Party Underwriter could have provided the Corrective Information to such Underwriter a reasonable period any prospective purchaser prior to the Time of Sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale)for such prospective purchaser.
(e) The Company Depositor agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Any Issuer Free Writing Prospectus”);
(ii) Any Free Writing Prospectus or portion thereof delivered by an the Underwriter to the Company Depositor pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed8(b);; and
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company Depositor or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e8(e) hereof by the Company Depositor shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may shall be filed by the Company Depositor with the Commission within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may shall be filed by the Company Depositor with the Commission not later than the later of the due date for filing of the final Prospectus relating to the Offered Certificates pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and;
(iii) any Any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv8(e)(iii) hereof mayshall, if no payment has been made or consideration has been given by or on behalf of the Company Depositor for the Free Writing Prospectus or its dissemination, be filed by the Company Depositor with the Commission not later than four (4) business days after the Company Depositor becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus; and
(iv) The Depositor shall not be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any other offering participant other than the Depositor, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (B) any Free Writing Prospectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does not reflect the final terms thereof.
(g) Each Underwriter (with shall provide to the reasonable cooperation of the Company) shall file with the Commission Depositor any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or it and distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing ProspectusProspectus and the Depositor shall file such Free Writing Prospectus with the Commission.
(h) Notwithstanding the provisions of Section 9(g) hereof8(g), each Underwriter (with shall provide to the reasonable cooperation of the Company) Depositor, who shall then file with the Commission Commission, any Free Writing Prospectus for which such the Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company Depositor or any other offering participant, not later than four (4) business days after such the Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g8(e) and 9(h) hereof8(g), neither the Company Depositor nor any the Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company Depositor and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party it shall contain a legend substantially in the following legendform: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in the that registration statement and other documents the depositor has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity trust and this offering. You may get these documents for free by visiting XXXXX EDGAR on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxxwww.sec.gov. Alternatively, the depositor, Deutsche Bank Securities, Inc.thx xxxositor, any underwriter or any dealer xxxxer participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll free 1-800866-503400-4611 7834 or by emailing xxxxxxxxxx.xxxx@xx.xxx.”
(k) The Company and the Underwriters each agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 for a period of three (3) years following the initial bona fide offering of the Offered CertificatesAvinash Bappanad at bappanad_avixxxx@xxxxxxxx.com.
(l1) In the event that the Company becomes awareXx xxx xxxxx xxat txx Xxxxxxxxx xxxxxxx xxxxx xxat, at any time between as of the Time of Sale or Sale, any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains contained any untrue statement of a material fact or omits omitted to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information)therein, in light of the circumstances under which they were made, not misleading misleading, when read in conjunction with the Time of Sale Information (such Issuer Free Writing Prospectus a “"Defective Issuer Free Writing Prospectus”"), the Company Depositor shall notify the Underwriters of such untrue statement or omission thereof within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company Depositor shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “"Corrected Issuer Free Writing Prospectus”). In ") and (2) in the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any Underwriter becomes aware that that, as of the Time of Sale, any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains contained any untrue statement of a material fact or omits omitted to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information)therein, in the light of the circumstances under which they were made, not misleading misleading, when read in conjunction with the Time of Sale Information, (such Underwriter Free Writing Prospectus, a “"Defective Underwriter Free Writing Prospectus” " and, together with a Defective Issuer Free Writing Prospectus, a “"Defective Free Writing Prospectus”"), such Underwriter shall notify the Company of such untrue statement or omission Depositor thereof within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the CompanyDepositor:
(iA) if If the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus with Corrective Information that corrects the material misstatement in or omission from the Defective Underwriter Free Writing Prospectus (such corrected Underwriter Free Writing Prospectus, a "Corrected Underwriter Free Writing Prospectus" and, together with a the Corrected Issuer Free Writing Prospectus, a “"Corrected Free Writing Prospectus”"), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(iiB) either (A) deliver Deliver the Corrected Free Writing Prospectus to each investor purchaser of an Offered Certificate which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or purchaser;
(BC) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each Notify such investor purchaser in a prominent prompt fashion that the any prior contract of sale with such investor purchaser has been terminated, and of such investor’s purchaser's rights as a result of termination of such agreement and agreement;
(yD) provide Provide such investor purchaser with an opportunity to affirmatively agree in writing to purchase the Offered Certificates enter into a new contract of sale on the terms described in the Corrected Free Writing Prospectus; and
(iiiE) comply Comply with any other requirements for reformation of the original contract of sale with such investorsale, as described in Section IV.A.2.c IV.2.c of the Commission’s 's Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(nl) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company Depositor that after the final Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates that contains Issuer Information to a prospective investor purchaser of Offered Certificates unless such information is preceded or accompanied by the final Prospectus.
Appears in 4 contracts
Samples: Underwriting Agreement (J.P. Morgan Chase Commercial Mortgage Securities Trust 2006-Ldp9), Underwriting Agreement (J.P. Morgan Chase Commercial Mortgage Securities Trust 2006-Ldp7), Underwriting Agreement (J.P. Morgan Chase Commercial Mortgage Securities Trust 2007-Ldp12)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no the Underwriter shall not convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iviii) constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no the Underwriter shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “ABS informational and computational material,” as defined in Item 1101(a) of Regulation AB under the Securities Act (“ABS Informational and Computational Material”), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(bi) Each The Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (eachCompany, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) two business day days prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
thereof, (iA) any such Free Writing Prospectus prepared by or on behalf of the Underwriter that contains any “issuer information,” as defined in Rule 433(h) under the Act (“Issuer Information”), and (B) any Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; andCertificates.
(ii) Notwithstanding the provisions of Section 12(b)(i), any such Free Writing Prospectus described therein that contains only ABS Informational and Computational Materials Material, may be delivered by an the Underwriter to the Company not later than the later of (Aa) one (1) two business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (Bb) the date of first use of such Free Writing Prospectus.
(c) Each The Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such the Underwriter pursuant to Section 9(b12(b)(i) hereof or (ii) will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such the Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each The Underwriter represents and warrants to the Company that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company pursuant to Section 9(b12(b)(i) hereof or (ii) did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investor, include any untrue statement of a material fact or omit to state any material fact required to be stated therein necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Actmisleading; provided, no however, that the Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, Underwriter which information was not corrected by information subsequently supplied by the Company, Company to the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time of Sale sale to the applicable investor of the Offered Certificates (including without limitationwhich resulted in a loss, by means claim, damage or liability arising out of a contract of sale)based upon such misstatement or omission.
(e) The Company agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Any Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Issuer Free Writing Prospectus”);
(ii) Any Free Writing Prospectus or portion thereof delivered by an the Underwriter to the Company pursuant to Section 9(b12(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offeringhereof; and
(iviii) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e12(e) hereof by the Company shall may be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the Final Prospectus relating to the Certificates pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and;
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv12(e)(iii) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus; and
(iv) the Company shall not be required to file (A) Issuer Information contained in any Free Writing Prospectus of an offering participant other than the Issuer, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (B) any Free Writing Prospectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does reflect the final terms thereof.
(g) Each The Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or it and distributed by or on behalf of such the Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g) hereof12(g), each the Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such the Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such the Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g12(e) and 9(h) hereof12(g), neither the Company nor any the Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriters Underwriter each agree that any Free Writing Prospectuses prepared by each such party the Underwriter shall contain the following legendlegend and any other legend that the Underwriter shall deem necessary or appropriate: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in the that registration statement and other documents the depositor has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity and this offering. You may get these documents for free by visiting XXXXX on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxx. Alternatively, the depositor, Deutsche Bank Securities, Inc., any underwriter or any dealer participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll toll-free 10-800000-503000-4611 0000 or you e-mail a request to xx.xxxxxxxxxx_xxxxxxxxxxxx@xxxxxxxxxxxxxx.xxx. The securities may not be suitable for all investors. Banc of America Securities LLC and its affiliates may acquire, hold or sell positions in these securities, or in related derivatives, and may have an investment or commercial banking relationship with the depositor. The asset-backed securities referred to in these materials, and the asset pools backing them, are subject to modification or revision (including the possibility that one or more classes of securities may be split, combined or eliminated at any time prior to issuance or availability of a final prospectus) and are offered on a “when, as and if issued” basis. You understand that, when you are considering the purchase of these securities, a contract of sale will come into being no sooner than the date on which the relevant class has been priced and we have confirmed the allocation of securities to be made to you; any “indications of interest” expressed by emailing xxxxxxxxxx.xxxx@xx.xxxyou, and any “soft circles” generated by us, will not create binding contractual obligations for you or us. Because the asset-backed securities are being offered on a “when, as and if issued” basis, any such contract of sale will terminate, by its terms, without any further obligation or liability between us, if the securities themselves, or the particular class to which the contract relates, are not issued. Because the asset-backed securities are subject to modification or revision, any such contract also is conditioned upon the understanding that no material change will occur with respect to the relevant class of securities prior to the closing date. If a material change does occur with respect to such class, our contract will terminate, by its terms, without any further obligation or liability between us (the “Automatic Termination”). If an Automatic Termination occurs, we will provide you with revised offering materials reflecting the material change and give you an opportunity to purchase such class. To indicate your interest in purchasing the class, you must communicate to us your desire to do so within such timeframe as may be designated in connection with your receipt of the revised offering materials. The information contained in these materials may be based on assumptions regarding market conditions and other matters as reflected herein. Banc of America Securities LLC (the “Underwriter”) makes no representation regarding the reasonableness of such assumptions or the likelihood that any such assumptions will coincide with actual market conditions or events, and these materials should not be relied upon for such purposes. The Underwriter and its affiliates, officers, directors, partners and employees, including persons involved in the preparation or issuance of these materials, may, from time to time, have long or short positions in, and buy and sell, the securities mentioned herein or derivatives thereof (including options). Information in these materials is current as of the date appearing on the material only. Information in these materials regarding any securities discussed herein supersedes all prior information regarding such securities. These materials are not to be construed as an offer to sell or the solicitation of any offer to buy any security in any jurisdiction where such an offer or solicitation would be illegal. This free writing prospectus is being delivered to you solely to provide you with information about the offering of the securities referred to in this free writing prospectus and to solicit an offer to purchase the securities, 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 securities until we have accepted your offer to purchase securities. You may withdraw your offer to purchase securities at any time prior to our acceptance of your offer. The information in this free writing prospectus supersedes information contained in any prior similar free writing prospectus relating to these securities prior to the time of your commitment to purchase. This free writing prospectus is not an offer to sell or solicitation of an offer to buy these securities in any state where such offer, solicitation or sale is not permitted. The Company and the Underwriter each agree that any Free Writing Prospectus prepared by the Underwriter and that is not an Issuer Free Writing Prospectus or that does not contain Issuer Information shall also contain the following legend: Neither the issuer of the securities nor any of its affiliates prepared, provided, approved or verified any statistical or numerical information presented herein, although that information may be based in part on loan level data provided by the issuer or its affiliates.”
(k) The Company and the Underwriters each Underwriter agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 12 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(l) In the event that the Company becomes aware, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Issuer Free Writing Prospectus”), the Company shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each The Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company Depositor that after the final Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor purchaser of Offered Certificates unless such information is preceded or accompanied by the final Prospectus.
Appears in 4 contracts
Samples: Underwriting Agreement (Banc of America Funding 2009-R1 Trust), Underwriting Agreement (Banc of America Funding 2008-R3 Trust), Underwriting Agreement (Banc of America Funding Corp)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no Underwriter shall convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, (iv) constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no Underwriter shall prepare, convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “ABS informational and computational material,” as defined in Item 1101(a) of Regulation AB under the Securities Act (“ABS Informational and Computational Material”), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any the Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(b) Each Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (each, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) business day prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
(i) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and
(ii) any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an Underwriter to the Company not later than the later of (A) one (1) business day prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (B) the date of first use of such Free Writing Prospectus.
(c) Each Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such Underwriter pursuant to Section 9(b) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each Underwriter represents and warrants to the Company that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company pursuant to Section 9(b) hereof did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investor, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, no Underwriter makes any representation or warranty to the extent such misstatements or omissions are based upon or arise out of an untrue statement or omission in the Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, which information was not corrected by information subsequently supplied by the Company, the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time of Sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale).
(e) The Company agrees to file with the Commission the following:
(i) The Preliminary FWP, each the Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Issuer Free Writing Prospectus”);
(ii) Any Free Writing Prospectus or portion thereof delivered by an Underwriter to the Company pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e) hereof by the Company shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(g) Each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g) hereof, each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g) and 9(h) hereof, neither the Company nor any Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party shall contain the following legend: “The depositor filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) for the offering to which this communication relates. Before you invest, you should read the prospectus in the registration statement and other documents the depositor has filed with the Securities and Exchange Commission for more complete information about the depositor, the issuing entity and this offering. You may get these documents for free by visiting XXXXX on the Securities and Exchange Commission website at xxx.xxx.xxx. Alternatively, the depositor, Deutsche Bank Securities, Inc., any underwriter or any dealer participating in this offering will arrange to send you the prospectus after filing if you request it by calling toll free 1-800-503-4611 or by emailing xxxxxxxxxx.xxxx@xx.xxx.”
(k) The Company and the Underwriters each agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(l) In the event that the Company becomes aware, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Issuer Free Writing Prospectus”), the Company shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company that after the Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor unless such information is preceded or accompanied by the final Prospectus.
Appears in 4 contracts
Samples: Underwriting Agreement (COMM 2014-Ubs5 Mortgage Trust), Underwriting Agreement (COMM 2014-Ccre19 Mortgage Trust), Underwriting Agreement (COMM 2015-Dc1 Mortgage Trust)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no Underwriter shall convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i1) is made in reliance on Rule 134 under the Securities Act, (ii2) is made in reliance on Rule 172 under the Securities Act, (iii3) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iv4) constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no Underwriter The Underwriters shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “ABS informational and computational material,” as defined in Item 1101(a) of Regulation AB under the Securities Act (“ABS Informational and Computational Material”), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(b) Each Underwriter shall deliver to the Company Depositor, no later than two business days prior to the date of first use thereof, (a) any Underwriter Free Writing Prospectus prepared by or on behalf of such Underwriter that contains any “issuer information,” as defined in Rule 433(h) under the Securities Act1 (“Issuer Information”) (which the parties hereto agree includes, without limitation, the Sellers’ Information) and (b) any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (each, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) business day prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
(i) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to Certificates. Notwithstanding the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and
(ii) foregoing, any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an Underwriter the Underwriters to the Company Depositor not later than the later of (Aa) one (1) two business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (Bb) the date of first use of such Free Writing Prospectus.
(c) Each Underwriter represents and warrants to the Company Depositor that the Free Writing Prospectuses to be furnished to the Company Depositor by such the Underwriter pursuant to Section 9(b8(b) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors purchasers of Offered Certificates by such the Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each Underwriter represents and warrants to the Company Depositor that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company Depositor pursuant to Section 9(b) hereof 8(b), when read together with all other Time of Sale Information, did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investorTime of Sale, and will not as of the Closing Date, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and misleading; provided however, that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, no Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, which information was not corrected by information Corrective Information subsequently supplied by the Company, Depositor or any Seller to the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time of Sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale)Sale.
(e) The Company Depositor agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Any Issuer Free Writing Prospectus”);
(ii) Any Free Writing Prospectus or portion thereof delivered by an the Underwriter to the Company Depositor pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed8(b);; and
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company Depositor or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e8(e) hereof by the Company Depositor shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may shall be filed by the Company Depositor with the Commission within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may shall be filed by the Company Depositor with the Commission not later than the later of the due date for filing of the final Prospectus relating to the Offered Certificates pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and;
(iii) any Any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv8(e)(iii) hereof mayshall, if no payment has been made or consideration has been given by or on behalf of the Company Depositor for the Free Writing Prospectus or its dissemination, be filed by the Company Depositor with the Commission not later than four (4) business days after the Company Depositor becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus; and
(iv) The Depositor shall not be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any other offering participant other than the Depositor, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (B) any Free Writing Prospectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does not reflect the final terms thereof.
(g) Each Underwriter (with shall provide to the reasonable cooperation of the Company) shall file with the Commission Depositor any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or it and distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing ProspectusProspectus and the Depositor shall file such Free Writing Prospectus with the Commission.
(h) Notwithstanding the provisions of Section 9(g) hereof8(g), each Underwriter (with shall provide to the reasonable cooperation of the Company) Depositor, who shall then file with the Commission Commission, any Free Writing Prospectus for which such the Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company Depositor or any other offering participant, not later than four (4) business days after such the Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g8(e) and 9(h) hereof8(g), neither the Company Depositor nor any Underwriter the Underwriters shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company Depositor and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party it shall contain a legend substantially in the following legendform: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in the that registration statement and other documents the depositor has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity depositor and this offering. You may get these documents for free by visiting XXXXX on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxx. Alternatively, the depositor, Deutsche Bank Securities, Inc., any underwriter or any dealer participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll free 10-800000-503000-4611 0000 or by emailing xxxxxxxxxx.xxxx@xx.xxx.”
(k) The Company and the Underwriters each agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 for a period of three (3) years following the initial bona fide offering of the Offered Certificatesxxxx-xxxxxxxxxx@xxxxxxxx.xxx.
(l1) In the event that the Company Depositor becomes awareaware that, at any time between as of the Time of Sale or Sale, any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains contained any untrue statement of a material fact or omits omitted to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information)therein, in the light of the circumstances under which they were made, not misleading misleading, when read in conjunction with the Time of Sale Information (such Issuer Free Writing Prospectus a “Defective Issuer Free Writing Prospectus”), the Company Depositor shall notify the Underwriters of such untrue statement or omission thereof within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company Depositor shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In ) and (2) in the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any Underwriter becomes aware that that, as of the Time of Sale, any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains contained any untrue statement of a material fact or omits omitted to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information)therein, in the light of the circumstances under which they were made, not misleading misleading, when read in conjunction with the Time of Sale Information (such Underwriter Free Writing Prospectus, a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission Depositor thereof within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the CompanyDepositor:
(iA) if If the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus with Corrective Information that corrects the material misstatement in or omission from the Defective Underwriter Free Writing Prospectus (such corrected Underwriter Free Writing Prospectus, a “Corrected Underwriter Free Writing Prospectus” and, together with a the Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(iiB) either (A) deliver Deliver the Corrected Free Writing Prospectus to each investor purchaser of an Offered Certificate which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or purchaser;
(BC) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each Notify such investor purchaser in a prominent prompt fashion that the any prior contract of sale with such investor purchaser has been terminated, and of such investorpurchaser’s rights as a result of termination of such agreement and agreement;
(yD) provide Provide such investor purchaser with an opportunity to affirmatively agree in writing to purchase the Offered Certificates enter into a new contract of sale on the terms described in the Corrected Free Writing Prospectus; and
(iiiE) comply Comply with any other requirements for reformation of the original contract of sale with such investorsale, as described in Section IV.A.2.c IV.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(nl) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company Depositor that after the final Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates that contains Issuer Information to a prospective investor purchaser of Offered Certificates unless such information is preceded or accompanied by the final Prospectus.
(m) The Depositor and each Underwriter agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 8 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
Appears in 4 contracts
Samples: Underwriting Agreement (JPMBB Commercial Mortgage Securities Trust 2014-C26), Underwriting Agreement (JPMBB Commercial Mortgage Securities Trust 2015-C28), Underwriting Agreement (JPMBB Commercial Mortgage Securities Trust 2015-C27)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no the Underwriter shall not convey or deliver any written communication communication, as defined in Rule 405 under the Act (other than the Prospectus) a "Written Communication"), to any person in connection with the initial offering of the Offered Certificates, unless such written communication Written Communication (i) is made in reliance on and in conformity with Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iviii) constitutes a “"free writing prospectus,” " as defined in Rule 405 under the Securities Act (a “"Free Writing Prospectus”) or (v) such other written communication approved by "). Notwithstanding anything to the Company contrary contained in advance. Without limitation therebythis Agreement, without the prior written consent of the Company (WFASC, which consent may be withheld for any reason)in its sole discretion, no the Underwriter shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates Certificates, any Free Writing Prospectus or “unless such Free Writing Prospectus contains only ABS informational Informational and computational material,” Computational Material, as defined in Item 1101(a) of Regulation AB under the Securities Act (“"ABS Informational and Computational Material”"), ; provided that any such Free Writing Prospectus may also contain a column showing the status of subscriptions for and allotments of the Certificates. The Underwriter shall not convey or deliver any ABS Informational and Computational Material in reliance upon on Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter . Any Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(b) Each Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such the Underwriter or any affiliate thereof (each, is referred to as an “"Underwriter Free Writing Prospectus”."
(b) WFASC shall prepare a Free Writing Prospectus (the "Issuer Free Writing Prospectus") and shall deliver such Issuer Free Writing Prospectus to the Underwriter after it files such Issuer Free Writing Prospectus with the Commission and the Underwriter shall not convey or deliver such Issuer Free Writing Prospectus to any person or entity until WFASC has notified the Underwriter that contains it has completed such filing. Thereafter, the Issuer Free Writing Prospectus may be used by the Underwriter solely in connection with the marketing of the Certificates to institutional investors; provided however, the Underwriter shall not enter into any Issuer Information by no later than one "contract of sale" with any investor, within the meaning of Rule 159 under the Act (1) business day a "Contract of Sale"), with respect to any Certificates, unless prior to the date Time of first use Sale to each investor in the Certificates, the Underwriter shall have delivered to such investor the Issuer Free Writing Prospectus and any additional Time of Sale Information, together with any amendment or supplement thereto supplied by WFASC to the Underwriter sufficiently prior to the Time of Sale to such investor to reasonably permit delivery thereof or such later date as may be agreed to by the Company; except that:Underwriter to such investor.
(i) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such The Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such deliver to WFASC each Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and
(ii) any such Free Writing Prospectus that contains only ABS Informational any "issuer information," as defined in Rule 433(h) under the Act and Computational Materials may footnote 271 of Securities Act Release No. 33-8591 ("Issuer Information") if such Underwriter Free Writing Prospectus or the portion thereof consisting of Issuer Information is required to be filed by WFASC with the Commission pursuant to Rule 433 under the Act ("Rule 433").
(ii) Any Underwriter Free Writing Prospectus that is required to be delivered pursuant to Section 9(c)(i) shall be delivered by an the Underwriter to the Company not WFASC no later than the later of (A) one (1) two business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (B) Act; provided however, that if such Underwriter Free Writing Prospectus contains any information other than ABS Informational and Computational Material, it shall instead be delivered by the Underwriter to WFASC not later than two business days prior to the date of first use of such Free Writing Prospectus.
(ciii) Each Not later than one business day after the Underwriter has determined the final structure of all classes of Certificates, and in no event later than the fourth business day preceding the due date for filing the final Prospectus pursuant to Rule 424(b) under the Act, the Underwriter shall prepare and deliver to WFASC an Underwriter Free Writing Prospectus (which may consist of a term sheet) containing a description of the final structure of the Certificates, irrespective of whether such Underwriter Free Writing Prospectus has been or will be conveyed or delivered by the Underwriter to any investor in the Certificates.
(iv) To facilitate the filing thereof by WFASC, the Underwriter shall provide the Issuer Information contained in any Underwriter Free Writing Prospectus that is required to be delivered to WFASC pursuant to this Section 9(c) in a separate document from the portion of such Free Writing Prospectus which contains information other than Issuer Information.
(d) The Underwriter represents and warrants to the Company WFASC that the Underwriter Free Writing Prospectuses required to be furnished to WFASC by the Company by such Underwriter pursuant to Section 9(b9(c) hereof will constitute all Underwriter Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such the Underwriter in connection with its offer and sale of the Offered Certificates.
(de) Each The Underwriter represents and warrants to the Company WFASC that each Underwriter Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to an investor in the Company pursuant to Section 9(b) hereof Certificates did not, as of the date Time of Sale to any prospective investor to which such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective investorconveyed, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and when considered in conjunction with the Time of Sale Information; provided however, that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, no Underwriter makes any no representation or warranty to the extent such misstatements or omissions were the result of any misstatements in or omissions from any Issuer Information in any Underwriter Writing Prospectus or, to the extent that such misstatements are based upon or arise out a substantial restatement in all material respects of an untrue statement or omission a misstatement made in the Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information Free Writing Prospectus which misstatements or the Transaction Party Information, which information was omissions were not corrected by information subsequently supplied by the Company, the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period WFASC sufficiently prior to the Time of Sale to the applicable investor of to reasonably permit delivery thereof by the Offered Certificates (including without limitation, by means of a contract of sale)Underwriter to such investor.
(ef) The Company Unless WFASC determines that such filing is not required under Rule 433, WFASC agrees to file with the Commission Commission, within the applicable time periods specified in Rule 433, the following:
(i) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Any Issuer Free Writing Prospectus”);
(ii) Any Free Writing Prospectus or portion thereof delivered by an Underwriter to the Company pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e) hereof by the Company shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and
(iiiii) Any Underwriter Free Writing Prospectus delivered by the Underwriter to WFASC pursuant to Section 9(c) or, at the election of WFASC, the portion of such Underwriter Free Writing Prospectus which consists of Issuer Information.
(g) The Underwriter shall file with the Commission, within the applicable time period specified in Rule 433, any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv) hereof may, if no payment has been made or consideration has been given that is distributed by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(g) Each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than dissemination. Any access codes or passwords needed by the date of Underwriter to complete the first use of such Free Writing Prospectusfiling shall be provided by WFASC.
(h) Notwithstanding the provisions of Section 9(g) hereof, each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g) and 9(h) hereof, neither the Company nor any Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company WFASC and the Underwriters Underwriter each agree agrees that any Free Writing Prospectuses prepared by each such party it shall contain substantially the following legend: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in the that registration statement and other documents the depositor issuer has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity depositor and this offering. You may get these documents for free by visiting XXXXX EDGAR on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxxwww.sec.gov. Alternatively, the depositor, Deutsche Bank Securities, Inc.xxx xssuer, any underwriter or any dealer ox xxx xxxxxr participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll toll-free 1-8008[xx-503xxx-4611 xxxx]. The asset-backed securities referred to in these materials, and the asset pools backing them, are subject to modification or revision (including the possibility that one or more classes of securities may be split, combined or eliminated at any time prior to issuance or availability of a final prospectus) and are offered on a "when, as and if issued" basis. You understand that, when you are considering the purchase of these securities, a contract of sale will come into being no sooner than the date on which the relevant class has been priced and the underwriter has confirmed the allocation of securities to be made to you; any "indications of interest" expressed by emailing xxxxxxxxxx.xxxx@xx.xxxyou, and any "soft circles" generated by the underwriter, will not create binding contractual obligations for you, the underwriter or us.”
(i) The Underwriter agrees to comply with the requirements of Rule 433 under the Act applicable to the Underwriter including, without limitation, the record retention requirements therein.
(i) The Underwriter agrees to keep and maintain, for a period of not less than three years following the date of initial issuance of the Certificates, written records documenting, as to each investor in Certificates, the Time of Sale and the date on which each Issuer Free Writing Prospectus and each Underwriter Free Writing Prospectus was conveyed to such investor.
(ii) In the event of any litigation or written notice of potential litigation against WFASC or any of its affiliates with respect to the Certificates, the Underwriter shall, upon the request of WFASC, make available to WFASC copies of all records required to be maintained by it pursuant to Section 9(j)(i) and any Free Writing Prospectus required to be retained by it pursuant to Section 9(i).
(k) The Company and the Underwriters each agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.[Reserved]
(li) In the event that WFASC becomes aware that the Company becomes aware, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information)therein, in light of the circumstances under which they were made, not misleading (such Free Writing Prospectus, a “"Defective Issuer Free Writing Prospectus”"), the Company WFASC shall notify the Underwriters of such untrue statement or omission Underwriter thereof within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company shall, if requested by the Underwriters, WFASC shall prepare and deliver to the Underwriters Underwriter a Free Writing Prospectus that which corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “"Corrected Issuer Free Writing Prospectus”"). .
(ii) In the event that the Underwriter becomes aware that, at any time between as of the applicable Time of Sale or any Subsequent Time of Sale and to an investor in the Closing DateCertificates, any Underwriter becomes aware that any Underwriter Free Writing Prospectus prepared by or on behalf of the Underwriter and delivered thereby to an such investor in any Offered Certificates contains contained any untrue statement of a material fact or omits omitted to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information)therein, in light of the circumstances under which they were made, not misleading misleading, when considered in conjunction with the Time of Sale Information (such Free Writing Prospectus, a “"Defective Underwriter Free Writing Prospectus” Prospectus and, together with a Defective Issuer Free Writing Prospectus, a “"Defective Free Writing Prospectus”"), such the Underwriter shall notify the Company of such untrue statement or omission WFASC thereof within one business day after discovery discovery.
(unless the Company was the party that informed such iii) The Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the CompanyWFASC:
(iA) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that which corrects the material misstatement in or omission from the Defective Underwriter Free Writing Prospectus (such corrected Underwriter Free Writing Prospectus, a "Corrected Underwriter Free Writing Prospectus" and, together with a Corrected Issuer Free Writing Prospectus, a “"Corrected Free Writing Prospectus”"), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (AB) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract Contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or Sale;
(B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (yC) provide such investor with an opportunity the following:
(1) adequate disclosure of the contractual arrangement;
(2) adequate disclosure of the investor's rights under the existing Contract of Sale at the time termination is sought;
(3) adequate disclosure of the new information that is necessary to affirmatively agree in writing to purchase correct the Offered Certificates on the terms described misstatements or omissions in the Corrected Free Writing Prospectusinformation given at the time of the original Contract of Sale; and
(iii4) a meaningful ability to elect to terminate or not terminate the prior Contract of Sale and to elect to enter into or not enter into a new Contract of Sale; and
(D) comply with any other requirements for reformation of the original contract Contract of sale with such investor, as Sale described in Section IV.A.2.c IV.2.c of the Commission’s Securities Offering Reform Act Release No. Act 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each The Underwriter covenants with the Company that, upon reasonable request, WFASC that it will make available to the Company WFASC, upon reasonable prior notice and at reasonable times during normal business hours, such personnel as are familiar with the Underwriter’s 's compliance procedures for the purpose of answering questions concerning the Underwriter’s 's practices and procedures for the preparation and dissemination of written materials Written Communications concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(on) Each The Underwriter covenants with the Company WFASC that after the final Prospectus is available available, the Underwriter shall not distribute any written information Written Communication concerning the Offered Certificates to a prospective investor unless such information communication is preceded or accompanied by the final Prospectus.
(o) The Underwriter agrees, upon request of WFASC, to provide to WFASC any information within the control of the Underwriter which WFASC may reasonably request to enable WFASC to timely and accurately meet its disclosure and reporting obligations under the Act and the Exchange Act.
(p) The Underwriter agrees to cause any credit enhancement provider, derivative counterparty, special servicer or credit risk manager arranged by the Underwriter in connection with the Certificates to provide to WFASC such narrative disclosure, financial information, including required accountants' consents, and other information as WFASC may reasonably request to enable WFASC to timely and accurately meet its disclosure and reporting obligations under the Act and the Exchange Act. In addition, upon request by WFASC, the Underwriter agrees to cause the party providing the information required by the immediately preceding sentence to provide indemnity satisfactory to WFASC relating to such disclosure and financial information.
(q) Notwithstanding any other provision herein, the Underwriter and WFASC each agree to pay all costs and expenses of the other party including, without limitation, legal fees and expenses, incurred in connection with any successful action by the Underwriter or WFASC against the other party to enforce any of its rights set forth in this Section 9.
Appears in 4 contracts
Samples: Underwriting Agreement (Wells Fargo Home Equity Asset-Backed Securities 2006-2 Trust), Underwriting Agreement (Wells Fargo Home Equity Asset-Backed Securities 2007-2 Trust), Underwriting Agreement (Wells Fargo Home Equity Asset-Backed Securities 2006-3 Trust)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no the Underwriter shall not convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iviii) constitutes a “"free writing prospectus,” " as defined in Rule 405 under the Securities Act (a “"Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance"). Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no the Underwriter shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “"ABS informational and computational material,” " as defined in Item 1101(a) of Regulation AB under the Securities Act (“"ABS Informational and Computational Material”"), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(bi) Each The Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (eachCompany, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) two business day days prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
thereof, (iA) any such Free Writing Prospectus prepared by or on behalf of the Underwriter that contains any "issuer information," as defined in Rule 433(h) under the Act ("Issuer Information"), and (B) any Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; andCertificates.
(ii) Notwithstanding the provisions of Section (b)(i), any such Free Writing Prospectus described therein that contains only ABS Informational and Computational Materials may be delivered by an the Underwriter to the Company not later than the later of (Aa) one (1) two business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (Bb) the date of first use of such Free Writing Prospectus.
(c) Each The Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such the Underwriter pursuant to Section 9(b11(b)(i) hereof or (ii) will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such the Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each The Underwriter represents and warrants to the Company that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company pursuant to Section 9(b11(b)(i) hereof or (ii) did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investor, include any untrue statement of a material fact or omit to state any material fact required to be stated therein necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and misleading; provided however, that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, no Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, Underwriter which information was not corrected by information subsequently supplied by the Company, Company to the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time of Sale sale to the applicable investor of the Offered Certificates (including without limitationwhich resulted in a loss, by means claim, damage or liability arising out of a contract of sale)or based upon such misstatement or omission.
(e) The Company agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Any Free Writing Prospectus that constitutes an “"issuer free writing prospectus,” " as defined in Rule 433(h) under the Securities Act (each, an “Issuer Free Writing Prospectus”)Act;
(ii) Any Free Writing Prospectus or portion thereof delivered by an the Underwriter to the Company pursuant to Section 9(b11(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offeringhereof; and
(iviii) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e11(e) hereof by the Company shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the final Prospectus relating to the Certificates pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and;
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv11(e)(3) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus; and
(iv) the Company shall not be required to file (A) Issuer Information contained in any Free Writing Prospectus of an offering participant other than the Company, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (B) any Free Writing Prospectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does reflect the final terms thereof.
(g) Each The Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or it and distributed by or on behalf of such the Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g) hereof11(g), each the Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such the Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such the Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g11(e) and 9(h) hereof11(g), neither the Company nor any the Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriters Underwriter each agree that any Free Writing Prospectuses prepared by each such party it shall contain the following legend: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in the that registration statement and other documents the depositor has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity depositor and this offering. You may get these documents for free by visiting XXXXX EDGAR on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxxwww.sec.gov. Alternatively, the depositor, Deutsche Bank Securities, Inc.xxx xepositor, any underwriter or any dealer underwritex xx xxx xxaler participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll toll-free 1-800-503294-4611 or by emailing xxxxxxxxxx.xxxx@xx.xxx1322.”
(k) The Company and the Underwriters each agree to retain all Underwriter agrex xx xxxxxx xxl Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 11 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(l) In the event that the Company becomes aware, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Issuer Free Writing Prospectus”), the Company shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company that after the Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor unless such information is preceded or accompanied by the final Prospectus.
Appears in 4 contracts
Samples: Underwriting Agreement (Banc of America Mortgage 2006-1 Trust), Underwriting Agreement (Banc of America Mortgage 2007-3 Trust), Underwriting Agreement (Banc of America Alternative Loan Trust 2006-8)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no Underwriter shall convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, (iv) constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no Underwriter shall prepare, convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “ABS informational and computational material,” as defined in Item 1101(a) of Regulation AB under the Securities Act (“ABS Informational and Computational Material”), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(b) Each Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (each, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) business day prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
(i) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and
(ii) any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an Underwriter to the Company not later than the later of (A) one (1) business day prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (B) the date of first use of such Free Writing Prospectus.
(c) Each Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such Underwriter pursuant to Section 9(b) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each Underwriter represents and warrants to the Company that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company pursuant to Section 9(b) hereof did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investor, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, however, no Underwriter makes any representation or warranty to the extent such misstatements or omissions are based upon or arise out of an untrue statement or omission in the Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, which information was not corrected by information subsequently supplied by the Company, the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time of Sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale).
(e) The Company agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Issuer Free Writing Prospectus”);
(ii) Any Free Writing Prospectus or portion thereof delivered by an Underwriter to the Company pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e) hereof by the Company shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(g) Each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g) hereof, each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g) and 9(h) hereof, neither the Company nor any Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party shall contain the following legend: “The depositor filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376184376) for the offering to which this communication relates. Before you invest, you should read the prospectus in the registration statement and other documents the depositor has filed with the Securities and Exchange Commission for more complete information about the depositor, the issuing entity and this offering. You may get these documents for free by visiting XXXXX on the Securities and Exchange Commission website at xxx.xxx.xxx. Alternatively, the depositor, Deutsche Bank Securities, Inc., any underwriter or any dealer participating in this offering will arrange to send you the prospectus after filing if you request it by calling toll free 1-800-503-4611 or by emailing xxxxxxxxxx.xxxx@xx.xxx.”
(k) The Company and the Underwriters each agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(l) In the event that the Company becomes aware, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Issuer Free Writing Prospectus”), the Company shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company that after the Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor unless such information is preceded or accompanied by the final Prospectus.
Appears in 3 contracts
Samples: Underwriting Agreement (COMM 2013-Ccre9 Mortgage Trust), Underwriting Agreement (COMM 2013-Ccre11 Mortgage Trust), Underwriting Agreement (COMM 2013-Ccre9 Mortgage Trust)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no the Underwriter shall not convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iviii) constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no the Underwriter shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “"ABS informational and computational material,” " as defined in Item 1101(a) of Regulation AB under the Securities Act (“"ABS Informational and Computational Material”"), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(bi) Each The Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (eachCompany, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) two business day days prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
thereof, (iA) any such Free Writing Prospectus prepared by or on behalf of the Underwriter that contains any "issuer information," as defined in Rule 433(h) under the Act ("Issuer Information"), and (B) any Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; andCertificates.
(ii) Notwithstanding the provisions of Section 12(b)(i), any such Free Writing Prospectus described therein that contains only ABS Informational and Computational Materials Material, may be delivered by an the Underwriter to the Company not later than the later of (Aa) one (1) two business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (Bb) the date of first use of such Free Writing Prospectus.
(c) Each The Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such the Underwriter pursuant to Section 9(b12(b)(i) hereof or (ii) will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such the Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each The Underwriter represents and warrants to the Company that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company pursuant to Section 9(b12(b)(i) hereof or (ii) did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investor, include any untrue statement of a material fact or omit to state any material fact required to be stated therein necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and misleading; provided however, that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, no Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, Underwriter which information was not corrected by information subsequently supplied by the Company, Company to the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time of Sale sale to the applicable investor of the Offered Certificates (including without limitationwhich resulted in a loss, by means claim, damage or liability arising out of a contract of sale)based upon such misstatement or omission.
(e) The Company agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Any Free Writing Prospectus that constitutes an “"issuer free writing prospectus,” " as defined in Rule 433(h) under the Securities Act (each, an “Issuer Free Writing Prospectus”)Act;
(ii) Any Free Writing Prospectus or portion thereof delivered by an the Underwriter to the Company pursuant to Section 9(b12(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offeringhereof; and
(iviii) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e12(e) hereof by the Company shall may be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the final Prospectus relating to the Certificates pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and;
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv12(e)(iii) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus; and
(iv) the Company shall not be required to file (A) Issuer Information contained in any Free Writing Prospectus of an offering participant other than the Issuer, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (B) any Free Writing Prospectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does reflect the final terms thereof.
(g) Each The Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or it and distributed by or on behalf of such the Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g) hereof12(g), each the Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such the Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such the Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g12(e) and 9(h) hereof12(g), neither the Company nor any the Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriters Underwriter each agree that any Free Writing Prospectuses prepared by each such party the Underwriter shall contain the following legendlegend and any other legend that the Underwriter shall deem necessary or appropriate: “The depositor issuer has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in the that registration statement and other documents the depositor issuer has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity issuer and this offering. You may get these documents for free by visiting XXXXX on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxx. Alternatively, the depositorissuer, Deutsche Bank Securities, Inc., any the underwriter or any dealer participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll toll-free 10-800000-503000-4611 0000. The securities may not be suitable for all investors. The underwriter and its affiliates may acquire, hold or sell positions in these securities, or in related derivatives, and may have an investment or commercial banking relationship with the issuer. The asset-backed securities referred to in these materials, and the asset pools backing them, are subject to modification or revision (including the possibility that one or more classes of securities may be split, combined or eliminated at any time prior to issuance or availability of a final prospectus) and are offered on a "when, as and if issued" basis. Because the asset-backed securities are being offered on a "when, as and if issued" basis, any contract of sale will terminate, by emailing xxxxxxxxxx.xxxx@xx.xxxits terms, without any further obligation or liability between us, if the securities themselves, or the particular class to which the contract relates, are not issued. Because the asset-backed securities are subject to modification or revision, any such contract also is conditioned upon the understanding that no material change will occur with respect to the relevant class of securities prior to the closing date. If a material change does occur with respect to such class, our contract will terminate, by its terms, without any further obligation or liability between us (the "Automatic Termination"). If an Automatic Termination occurs, we will provide you with revised offering materials reflecting the material change and give you an opportunity to purchase such class. To indicate your interest in purchasing the class, you must communicate to us your desire to do so within such timeframe as may be designated in connection with your receipt of the revised offering materials. This free writing prospectus is being delivered to you solely to provide you with information about the offering of the securities referred to in this free writing prospectus and to solicit an offer to purchase the securities, 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 securities until we have accepted your offer to purchase securities. We will not accept any offer by you to purchase the securities, and you will not have any contractual commitment to purchase any of the securities until after you have received the preliminary prospectus. You may withdraw your offer to purchase securities at any time prior to our acceptance of your offer. The information in this free writing prospectus supersedes information contained in any prior similar free writing prospectus relating to these securities prior to the time of your commitment to purchase. This free writing prospectus is not an offer to sell or solicitation of an offer to buy these securities in any state where such offer, solicitation or sale is not permitted. The Company and the Underwriter each agree that any Free Writing Prospectus prepared by the Underwriter and that is not an Issuer Free Writing Prospectus or that does not contain Issuer Information shall also contain the following legend: Neither the issuer of the securities nor any of its affiliates prepared, provided, approved or verified any statistical or numerical information presented herein, although that information may be based in part on loan level data provided by the issuer or its affiliates.”
(k) The Company and the Underwriters each Underwriter agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 12 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(l) In the event that the Company becomes aware, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Issuer Free Writing Prospectus”), the Company shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each The Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company Depositor that after the final Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor purchaser of Offered Certificates unless such information is preceded or accompanied by the final Prospectus.
Appears in 3 contracts
Samples: Underwriting Agreement (Banc of America Funding Corp), Underwriting Agreement (Banc of America Funding Corp), Underwriting Agreement (Banc of America Funding Corp)
Offering Communications; Free Writing Prospectuses. (a) (i) The Underwriter will not enter into any Contract of Sale with respect to the Certificates with any investor unless the Underwriter has delivered to such investor a copy of the final Prospectus and (ii) The Underwriter shall not enter into any Contract of Sale with respect to the Certificates with any investor unless the Underwriter complies with the prospectus delivery and notice requirements of Rules 172 and 173 under the Act.
(b) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no the Underwriter shall not convey or deliver any written communication communication, as defined in Rule 405 under the Act (other than the Prospectus) a "Written Communication"), to any person in connection with the initial offering of the Offered Certificates, unless such written communication Written Communication (i) is made in reliance on and in conformity with Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iviii) constitutes a “"free writing prospectus,” " as defined in Rule 405 under the Securities Act (a “"Free Writing Prospectus”) or (v) such other written communication approved by "). Notwithstanding anything to the Company contrary contained in advance. Without limitation therebythis Agreement, without the prior written consent of the Company (WFASC, which consent may be withheld for any reason)in its sole discretion, no the Underwriter shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates Certificates, any Free Writing Prospectus or “unless such Free Writing Prospectus contains only ABS informational Informational and computational material,” Computational Material, as defined in Item 1101(a) of Regulation AB under the Securities Act (“"ABS Informational and Computational Material”"); provided however, that any such Free Writing Prospectus may also contain a column showing the status of subscriptions for and allotments of the Certificates. The Underwriter shall not convey or deliver any ABS Informational and Computational Material in reliance upon on Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter . Any Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(b) Each Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such the Underwriter or any affiliate thereof (each, is referred to as an “"Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) business day prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:."
(i) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such The Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such deliver to WFASC each Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and
(ii) any such Free Writing Prospectus that contains only ABS Informational any "issuer information," as defined in Rule 433(h) under the Act and Computational Materials may footnote 271 of Securities Act Release No. 33-8591 ("Issuer Information") if such Underwriter Free Writing Prospectus or the portion thereof consisting of Issuer Information is required to be filed by WFASC with the Commission pursuant to Rule 433 under the Act ("Rule 433").
(ii) Any Underwriter Free Writing Prospectus that is required to be delivered pursuant to Section 9(c)(i) shall be delivered by an the Underwriter to the Company not WFASC no later than the later of (A) one (1) two business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (B) Act; provided however, that if such Underwriter Free Writing Prospectus contains any information other than ABS Informational and Computational Material, it shall instead be delivered by the Underwriter to WFASC not later than two business days prior to the date of first use of such Free Writing Prospectus.
(ciii) Each To facilitate the filing thereof by WFASC, the Underwriter shall provide the Issuer Information contained in any Underwriter Free Writing Prospectus that is required to be delivered to WFASC pursuant to this Section 9(c) in a separate document from the portion of such Free Writing Prospectus which contains information other than Issuer Information.
(d) The Underwriter represents and warrants to the Company WFASC that the Underwriter Free Writing Prospectuses required to be furnished to WFASC by the Company by such Underwriter pursuant to Section 9(b9(c) hereof will constitute all Underwriter Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such the Underwriter in connection with its offer and sale of the Offered Certificates.
(de) Each The Underwriter represents and warrants to the Company WFASC that each Underwriter Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to an investor in the Company pursuant to Section 9(b) hereof Certificates did not, as of the date Time of Sale to any prospective investor to which such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective investorconveyed, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and when considered in conjunction with the Prospectus; provided however, that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, no Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon were the result of any misstatements in or arise out of an untrue statement or omission in omissions from the Issuer Information Mortgage Loan Data supplied by WFASC to the Company to such Underwriter, the Loan Seller Information Underwriter which misstatements or the Transaction Party Information, which information was omissions were not corrected by information subsequently supplied by WFASC to the Company, the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period sufficiently prior to the Time of Sale to the applicable investor of to reasonably permit the Offered Certificates (including without limitation, delivery thereof by means of a contract of sale)the Underwriter to such investor.
(ef) The Company Unless WFASC determines that such filing is not required under Rule 433, WFASC agrees to file with the Commission Commission, within the following:applicable time periods specified in Rule 433, any Underwriter Free Writing Prospectus delivered by the Underwriter to WFASC pursuant to Section 9(c) or, at the election of WFASC, the portion of such Underwriter Free Writing Prospectus which consists of Issuer Information.
(ig) The Preliminary FWPUnderwriter shall file with the Commission, each Additional FWP and within the applicable time period specified in Rule 433, any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Issuer Free Writing Prospectus”);
(ii) Any Free Writing Prospectus or portion thereof delivered by an Underwriter to the Company pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e) hereof by the Company shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv) hereof may, if no payment has been made or consideration has been given distributed by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(g) Each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectusdissemination.
(h) Notwithstanding the provisions of Section 9(g) hereof, each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g) and 9(h) hereof, neither the Company nor any Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company WFASC and the Underwriters Underwriter each agree agrees that any Free Writing Prospectuses prepared by each such party it shall contain substantially the following legend: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in the that registration statement and other documents the depositor issuer has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity depositor and this offering. You may get these documents for free by visiting XXXXX EDGAR on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxxwww.sec.gov. Alternatively, the depositor, Deutsche Bank Securities, Inc.xxx xssuer, any underwriter or any dealer ox xxx xxxxxr participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll toll-free 1-8008[xx-503xxx-4611 or by emailing xxxxxxxxxx.xxxx@xx.xxx.”xxxx]
(ki) The Company Underwriter agrees to comply with the requirements of Rule 433 under the Act applicable to the Underwriter including, without limitation, the record retention requirements therein.
(i) Consistent with the manner in which written records are maintained for its own purposes, the Underwriter agrees to keep and the Underwriters each agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 maintain, for a period of not less than three (3) years following the date of initial bona fide offering issuance of the Offered Certificates, written records documenting, as to each investor in Certificates, the Time of Sale and the date on which each Underwriter Free Writing Prospectus was conveyed to such investor.
(lii) In the event of any litigation or written notice of potential litigation against WFASC or any of its affiliates with respect to the Certificates, the Underwriter shall, upon the request of WFASC, make available to WFASC copies of all records required to be maintained by it pursuant to Section 9(j)(i) and any Free Writing Prospectus required to be retained by it pursuant to Section 9(i).
(i) In the event that the Company Underwriter becomes awareaware that, at any time between as of the applicable Time of Sale or to an investor in the Certificates, any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Underwriter Free Writing Prospectus prepared by or any Issuer Information contains on behalf of the Underwriter and delivered to such investor contained any untrue statement of a material fact or omits omitted to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information)therein, in light of the circumstances under which they were made, not misleading misleading, when considered in conjunction with the Prospectus (a “Defective Issuer such Free Writing Prospectus”, a "Defective Underwriter Free Writing Prospectus"), the Company Underwriter shall notify the Underwriters of such untrue statement or omission WFASC thereof within one business day after discovery discovery.
(except for any ii) The Underwriter that informed the Company of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the CompanyWFASC:
(iA) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that which corrects the material misstatement in or omission from the Defective Underwriter Free Writing Prospectus (together with a Corrected Issuer such corrected Underwriter Free Writing Prospectus, a “"Corrected Underwriter Free Writing Prospectus”"), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (AB) deliver the Corrected Underwriter Free Writing Prospectus to each investor which received the Defective Underwriter Free Writing Prospectus prior to entering into a contract Contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or Sale;
(B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (yC) provide such investor with an opportunity the following:
(1) adequate disclosure of the contractual arrangement;
(2) adequate disclosure of the investor's rights under the existing Contract of Sale at the time termination is sought;
(3) adequate disclosure of the new information that is necessary to affirmatively agree in writing to purchase correct the Offered Certificates on the terms described misstatements or omissions in the Corrected Free Writing Prospectusinformation given at the time of the original Contract of Sale; and
(iii4) a meaningful ability to elect to terminate or not terminate the prior Contract of Sale and to elect to enter into or not enter into a new Contract of Sale; and
(D) comply with any other requirements for reformation of the original contract Contract of sale with such investor, as Sale described in Section IV.A.2.c IV.2.c of the Commission’s Securities Offering Reform Act Release No. Act 33-8591.
(ml) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each The Underwriter covenants with the Company that, upon reasonable request, WFASC that it will make available to the Company WFASC, upon reasonable prior notice and at reasonable times during normal business hours, such personnel as are familiar with the Underwriter’s 's compliance procedures for the purpose of answering questions concerning the Underwriter’s 's practices and procedures for the preparation and dissemination of written materials Written Communications concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(om) Each The Underwriter covenants with the Company WFASC that after the final Prospectus is available available, the Underwriter shall not distribute any written information Written Communication concerning the Offered Certificates to a prospective investor unless such information communication is preceded or accompanied by the final Prospectus. The foregoing covenant shall not apply to any secondary market offers or sales of the Certificates by the Underwriter.
(n) The Underwriter agrees, upon request of WFASC, to provide to WFASC any information within the control of the Underwriter which WFASC may reasonably request to enable WFASC to timely and accurately meet its disclosure and reporting obligations under the Act and the Exchange Act.
(o) The Underwriter agrees to cause any credit enhancement provider, derivative counterparty, special servicer or credit risk manager arranged by the Underwriter in connection with the Certificates to provide to WFASC such narrative disclosure, financial information, including required accountants' consents, and other information as WFASC may reasonably request to enable WFASC to timely and accurately meet its disclosure and reporting obligations under the Act and the Exchange Act.
(p) Notwithstanding any other provision herein, the Underwriter and WFASC each agree to pay all costs and expenses of the other party including, without limitation, legal fees and expenses, incurred in connection with any successful action by the Underwriter or WFASC against the other party to enforce any of its rights set forth in this Section 9.
Appears in 3 contracts
Samples: Underwriting Agreement (Wells Fargo Mortgage Backed Securities 2006-3 Trust), Underwriting Agreement (Wells Fargo Mortgage Backed Securities 2006-Ar2 Trust), Underwriting Agreement (Wells Fargo Mortgage Backed Securities 2006-Ar1 Trust)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no Underwriter shall convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, (iv) constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no Underwriter shall prepare, convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “ABS informational and computational material,” as defined in Item 1101(a) of Regulation AB under the Securities Act (“ABS Informational and Computational Material”), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(b) Each Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (each, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) business day prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
(i) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and
(ii) any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an Underwriter to the Company not later than the later of (A) one (1) business day prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (B) the date of first use of such Free Writing Prospectus.
(c) Each Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such Underwriter pursuant to Section 9(b) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each Underwriter represents and warrants to the Company that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company pursuant to Section 9(b) hereof did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investor, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, however, no Underwriter makes any representation or warranty to the extent such misstatements or omissions are based upon or arise out of an untrue statement or omission in the Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, which information was not corrected by information subsequently supplied by the Company, the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time of Sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale).
(e) The Company agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Issuer Free Writing Prospectus”);
(ii) Any Free Writing Prospectus or portion thereof delivered by an Underwriter to the Company pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e) hereof by the Company shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(g) Each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g) hereof, each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g) and 9(h) hereof, neither the Company nor any Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party shall contain the following legend: “The depositor filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376184376) for the offering to which this communication relates. Before you invest, you should read the prospectus in the registration statement and other documents the depositor has filed with the Securities and Exchange Commission for more complete information about the depositor, the issuing entity and this offering. You may get these documents for free by visiting XXXXX EXXXX on the Securities and Exchange Commission website at xxx.xxx.xxxwxx.xxx.xxx. Alternatively, the depositor, Deutsche Bank Securities, Inc., any underwriter or any dealer participating in this offering will arrange to send you the prospectus after filing if you request it by calling toll free 1-800-503-4611 or by emailing xxxxxxxxxx.xxxx@xx.xxxpxxxxxxxxx.xxxx@xx.xxx.”
(k) The Company and the Underwriters each agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(l) In the event that the Company becomes aware, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Issuer Free Writing Prospectus”), the Company shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company that after the Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor unless such information is preceded or accompanied by the final Prospectus.
Appears in 3 contracts
Samples: Underwriting Agreement (COMM 2013-Ccre11 Mortgage Trust), Underwriting Agreement (COMM 2013-Ccre7 Mortgage Trust), Underwriting Agreement (COMM 2013-Ccre7 Mortgage Trust)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no Underwriter shall convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i1) is made in reliance on Rule 134 under the Securities Act, (ii2) is made in reliance on Rule 172 under the Securities Act, (iii3) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iv4) constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no Underwriter The Underwriters shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “ABS informational and computational material,” as defined in Item 1101(a) of Regulation AB under the Securities Act (“ABS Informational and Computational Material”), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(b) Each Underwriter shall deliver to the Company Depositor, no later than two business days prior to the date of first use thereof, (a) any Underwriter Free Writing Prospectus prepared by or on behalf of such Underwriter that contains any “issuer information”, as defined in Rule 433(h) under the Securities Act1 (“Issuer Information”) (which the parties hereto agree includes, without limitation, the Sellers’ Information) and (b) any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (each, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) business day prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
(i) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to Certificates. Notwithstanding the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and
(ii) foregoing, any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an Underwriter the Underwriters to the Company Depositor not later than the later of (Aa) one (1) two business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (Bb) the date of first use of such Free Writing Prospectus.
(c) Each Underwriter represents and warrants to the Company Depositor that the Free Writing Prospectuses to be furnished to the Company Depositor by such the Underwriter pursuant to Section 9(b8(b) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors purchasers of Offered Certificates by such the Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each Underwriter represents and warrants to the Company Depositor that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company Depositor pursuant to Section 9(b) hereof 8(b), when read together with all other Time of Sale Information, did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investorTime of Sale, and will not as of the Closing Date, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and misleading; provided however, that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, no Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, which information was not corrected by information Corrective Information subsequently supplied by the Company, Depositor or any Seller to the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time of Sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale)Sale.
(e) The Company Depositor agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Any Issuer Free Writing Prospectus”);
(ii) Any Free Writing Prospectus or portion thereof delivered by an the Underwriter to the Company Depositor pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed8(b);; and
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company Depositor or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e8(e) hereof by the Company Depositor shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may shall be filed by the Company Depositor with the Commission within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may shall be filed by the Company Depositor with the Commission not later than the later of the due date for filing of the final Prospectus relating to the Offered Certificates pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and;
(iii) any Any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv8(e)(iii) hereof mayshall, if no payment has been made or consideration has been given by or on behalf of the Company Depositor for the Free Writing Prospectus or its dissemination, be filed by the Company Depositor with the Commission not later than four (4) business days after the Company Depositor becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus; and
(iv) The Depositor shall not be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any other offering participant other than the Depositor, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (B) any Free Writing Prospectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does not reflect the final terms thereof.
(g) Each Underwriter (with shall provide to the reasonable cooperation of the Company) shall file with the Commission Depositor any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or it and distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing ProspectusProspectus and the Depositor shall file such Free Writing Prospectus with the Commission.
(h) Notwithstanding the provisions of Section 9(g) hereof8(g), each Underwriter (with shall provide to the reasonable cooperation of the Company) Depositor, who shall then file with the Commission Commission, any Free Writing Prospectus for which such the Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company Depositor or any other offering participant, not later than four (4) business days after such the Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g8(e) and 9(h) hereof8(g), neither the Company Depositor nor any Underwriter the Underwriters shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company Depositor and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party it shall contain a legend substantially in the following legendform: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in the that registration statement and other documents the depositor has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity depositor and this offering. You may get these documents for free by visiting XXXXX EXXXX on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxxwxx.xxx.xxx. Alternatively, the depositor, Deutsche Bank Securities, Inc., any underwriter or any dealer participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll free 1-800000-503000-4611 0000 or by emailing xxxxxxxxxx.xxxx@xx.xxx.”
(k) The Company and the Underwriters each agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 for a period of three (3) years following the initial bona fide offering of the Offered Certificatescxxx-xxxxxxxxxx@xxxxxxxx.xxx.
(l1) In the event that the Company Depositor becomes awareaware that, at any time between as of the Time of Sale or Sale, any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains contained any untrue statement of a material fact or omits omitted to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information)therein, in the light of the circumstances under which they were made, not misleading misleading, when read in conjunction with the Time of Sale Information (such Issuer Free Writing Prospectus a “Defective Issuer Free Writing Prospectus”), the Company Depositor shall notify the Underwriters of such untrue statement or omission thereof within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company Depositor shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In ) and (2) in the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any Underwriter becomes aware that that, as of the Time of Sale, any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains contained any untrue statement of a material fact or omits omitted to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information)therein, in the light of the circumstances under which they were made, not misleading misleading, when read in conjunction with the Time of Sale Information (such Underwriter Free Writing Prospectus, a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission Depositor thereof within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the CompanyDepositor:
(iA) if If the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus with Corrective Information that corrects the material misstatement in or omission from the Defective Underwriter Free Writing Prospectus (such corrected Underwriter Free Writing Prospectus, a “Corrected Underwriter Free Writing Prospectus” and, together with a the Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(iiB) either (A) deliver Deliver the Corrected Free Writing Prospectus to each investor purchaser of an Offered Certificate which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or purchaser;
(BC) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each Notify such investor purchaser in a prominent prompt fashion that the any prior contract of sale with such investor purchaser has been terminated, and of such investorpurchaser’s rights as a result of termination of such agreement and agreement;
(yD) provide Provide such investor purchaser with an opportunity to affirmatively agree in writing to purchase the Offered Certificates enter into a new contract of sale on the terms described in the Corrected Free Writing Prospectus; and
(iiiE) comply Comply with any other requirements for reformation of the original contract of sale with such investorsale, as described in Section IV.A.2.c IV.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(nl) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company Depositor that after the final Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates that contains Issuer Information to a prospective investor purchaser of Offered Certificates unless such information is preceded or accompanied by the final Prospectus.
(m) The Depositor and each Underwriter agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 8 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
Appears in 3 contracts
Samples: Underwriting Agreement (JPMBB Commercial Mortgage Securities Trust 2014-C19), Underwriting Agreement (JPMBB Commercial Mortgage Securities Trust 2013-C15), Underwriting Agreement (J.P. Morgan Chase Commercial Mortgage Securities Trust 2012-C8)
Offering Communications; Free Writing Prospectuses. It is understood that the Underwriters propose to offer the Offered Certificates for sale as set forth in this Agreement, the Time of Sale Information and the Prospectus. In connection with the offering of the Offered Certificates, the Underwriters may each prepare and provide to prospective investors Free Writing Prospectuses, or portions thereof, subject to the following conditions (ato which such conditions each Underwriter agrees (provided that no Underwriter shall be responsible for any breach of the following conditions by any other Underwriter)):
(i) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of Prospectus, the Securities Act, no Underwriter Underwriters shall not convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i1) is made in reliance on Rule 134 under the Securities 1933 Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii2) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities 1933 Act, (iv3) is made in reliance on Rule 172 under the 1933 Act, (4) constitutes Time of Sale Information or a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) Prospectus that does not constitute Time of Sale Information, or (v5) constitutes such other written communication approved by the Company Depositor in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason)Depositor, no Underwriter the Underwriters shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus “computational materials” or “ABS term sheets” in reliance on the “Kxxxxx/PSA” no-action letters or any “ABS informational and computational material,” as defined in Item 1101(a) of Regulation AB under the Securities 1933 Act (“ABS Informational and Computational Material”), in reliance upon Rules 167 and 426 under the Securities 1933 Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(bii) Each Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (eachDepositor, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) business day prior to the date of first use thereof or such later date as may be agreed to by the CompanyDepositor, any Free Writing Prospectus that was prepared by or on behalf of such Underwriter (an “Underwriter Free Writing Prospectus”) and that contains any “issuer information,” as defined in Rule 433(h) under the 1933 Act and footnote 271 of the Commission’s Securities Offering Reform Release No. 33-8591 (“Issuer Information”) (which the parties hereto agree includes, without limitation, Mortgage Loan Seller Information); except that:
provided that (ia) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by Depositor no later than the later of (Ax) the date such final terms have been established for all classes of the Offered Certificates or and (By) the date of first use; and
, and (iib) any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an such Underwriter to the Company not Depositor no later than the later of (Ax) one (1) business day prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities 1933 Act or such later date as may be agreed to by the Depositor and (By) the date of first use of such Free Writing Prospectus.
(ciii) Each Underwriter represents and warrants to the Company Depositor that the Free Writing Prospectuses to be furnished to the Company Depositor by such Underwriter pursuant to Section 9(b4(ii) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such Underwriter in connection with its offer and sale of the Offered Certificates.
(div) Each Underwriter represents and warrants to the Company Depositor that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company Depositor pursuant to Section 9(b4(ii) hereof did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investorTime of Sale, and will not as of the Closing Date, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained thereintherein (when read in conjunction with the Time of Sale Information), in the light of the circumstances under which they were made, not misleading and that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Actmisleading; provided, no however, that such Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company to such UnderwriterInformation, the Mortgage Loan Seller Information, Transaction Party Information or the Transaction Party Midland Information), which information was not corrected by information Corrective Information subsequently supplied by the Company, the related Loan Seller Depositor or the related Transaction Party Mortgage Loan Seller to such Underwriter within a reasonable period of time prior to the Time of Sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale)Sale.
(ev) The Company Depositor agrees to file with the Commission the following:
(iA) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Each Issuer Free Writing Prospectus”);
(iiB) Any Free Writing Prospectus or portion thereof delivered by an any Underwriter to the Company Depositor pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed4(ii);
(iiiC) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and;
(ivD) Any Free Writing Prospectus for which the Company Depositor or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(vE) any Any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus. The Depositor is required to file such Free Writing Prospectuses with the Commission in electronic format and the Underwriters shall 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) or such other format as is acceptable to the Depositor, except to the extent that the Depositor, in its sole discretion, waives such requirements.
(fvi) Any Free Writing Prospectus required to be filed pursuant to Section 9(e4(v) hereof by the Company Depositor shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(iA) any Any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may shall be filed by the Company Depositor with the Commission within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(iiB) any Any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may shall be filed by the Company Depositor with the Commission not no later than the later of (i) the due date for filing of the final Prospectus relating to the Offered Certificates pursuant to Rule 424(b) under the Securities 1933 Act or and (ii) two (2) business days after the date of first use of such Free Writing Prospectus; and
(iiiC) any Any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv4(v)(D) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company Depositor for the Free Writing Prospectus or its dissemination, be filed by the Company Depositor with the Commission not later than four (4) business days after the Company Depositor becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(gvii) Each Underwriter (with the reasonable cooperation of the CompanyDepositor) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company Depositor pursuant to Section 9(b)4(ii) hereof) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or it and distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(hviii) Notwithstanding the provisions of Section 9(g4(vii) hereof, each Underwriter (with the reasonable cooperation of the CompanyDepositor) shall file with the Commission any Free Writing Prospectus for which such Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company Depositor or any other offering participant, not later than four (4) business days after such Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(iix) Notwithstanding the provisions of Sections 9(e4(v) (other than 9(e)(iii4(v)(C)), 9(g4(vii) and 9(h4(viii) hereof, (A) neither the Company Depositor nor any Underwriter shall be required to file (A1) any Issuer Information contained in any Underwriter Free Writing Prospectus or Free Writing Prospectus of an Underwriter or any other offering participant other than the CompanyDepositor, if such information is included (including through incorporation by reference) in a prospectus or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B2) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof thereof, or (C3) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission, and (B) no Underwriter shall be required to file any Free Writing Prospectus to the extent that the information contained therein is included in a prospectus or Free Writing Prospectus previously filed that relates to the offering of the Offered Certificates.
(jx) The Company Depositor and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party it shall contain the following legend, or substantially equivalent legend that complies with Rule 433 of the 1933 Act: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission SEC (File No. Number 333-193376180779) for the offering to which this communication free writing prospectus relates. Before you invest, you should read the prospectus in the registration statement and other documents the depositor has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity and this offering. You may get these documents for free by visiting XXXXX EXXXX on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxxwxx.xxx.xxx. Alternatively, the depositor, Deutsche Bank Securities, Inc., any underwriter or any dealer participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll free 1-800000-503000-4611 0000 or by emailing xxxxxxxxxx.xxxx@xx.xxxemail to pxxxxxxxxx@xx.xxx.”
(kxi) The Company Depositor and the Underwriters each Underwriter agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 4, and that have not been filed, for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(lxii) In (A) If the event that the Company Depositor becomes awareaware that, at any time between as of the Time of Sale or any Subsequent Time as of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in the light of the circumstances under which they were made, not misleading misleading, or conflicted or conflicts with the information contained in the Registration Statement (a “Defective Issuer Free Writing Prospectus”), the Company Depositor shall notify the Underwriters of such untrue statement or omission or conflict within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company Depositor shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement misstatement, omission or omission conflict in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company that after the Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor unless such information is preceded or accompanied by the final Prospectus.
Appears in 3 contracts
Samples: Underwriting Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2015-C26), Underwriting Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2015-C27), Underwriting Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2015-C26)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no Underwriter shall convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, (iv) constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no Underwriter shall prepare, convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “ABS informational and computational material,” as defined in Item 1101(a) of Regulation AB under the Securities Act (“ABS Informational and Computational Material”), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(b) Each Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (each, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) business day prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
(i) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and
(ii) any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an Underwriter to the Company not later than the later of (A) one (1) business day prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (B) the date of first use of such Free Writing Prospectus.
(c) Each Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such Underwriter pursuant to Section 9(b) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each Underwriter represents and warrants to the Company that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company pursuant to Section 9(b) hereof did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investor, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein, in the light of the circumstances under which they were made, not misleading and that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, however, no Underwriter makes any representation or warranty to the extent such misstatements or omissions are based upon or arise out of an untrue statement or omission in the Issuer Information supplied by the Company to such UnderwriterCompany, the Loan Seller Information or the Transaction Party Information, which information was not corrected by information subsequently supplied by the Company, the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time of Sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale).
(e) The Company agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Issuer Free Writing Prospectus”);
(ii) Any Free Writing Prospectus or portion thereof delivered by an Underwriter to the Company pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e) hereof by the Company shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(g) Each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g) hereof, each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g) and 9(h) hereof, neither the Company nor any Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party shall contain the following legend: “The depositor filed a registration statement (including a prospectus) with the Securities and Exchange Commission (SEC File No. 333-193376177354) for the offering to which this communication relates. Before you invest, you should read the prospectus in the registration statement and other documents the depositor has filed with the Securities and Exchange Commission for more complete information about the depositor, the issuing entity and this offering. You may get these documents for free by visiting XXXXX on the Securities and Exchange Commission website at xxx.xxx.xxx. Alternatively, the depositordepositor or UBS Securities LLC, Deutsche Bank Securitiesor any other underwriter, Inc., any underwriter or any dealer participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll free 10-800000-503000-4611 or by emailing xxxxxxxxxx.xxxx@xx.xxx0000.”
(k) The Company and the Underwriters each agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(l) In the event that the Company becomes aware, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in the light of the circumstances under which they were made, not misleading (a “Defective Issuer Free Writing Prospectus”), the Company shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare cause to be prepared and deliver delivered to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in the light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company that after the Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor unless such information is preceded or accompanied by the final Prospectus.or
Appears in 2 contracts
Samples: Underwriting Agreement (UBS-Barclays Commercial Mortgage Trust 2013-C5), Underwriting Agreement (UBS-Barclays Commercial Mortgage Trust 2012-C4)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no the Underwriter shall not convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iviii) constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no the Underwriter shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “"ABS informational and computational material,” " as defined in Item 1101(a) of Regulation AB under the Securities Act (“"ABS Informational and Computational Material”"), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(bi) Each The Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (eachCompany, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) two business day days prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
thereof, (iA) any such Free Writing Prospectus prepared by or on behalf of the Underwriter that contains any "issuer information," as defined in Rule 433(h) under the Act ("Issuer Information"), and (B) any Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; andCertificates.
(ii) Notwithstanding the provisions of Section 12(b)(i), any such Free Writing Prospectus described therein that contains only ABS Informational and Computational Materials Material, may be delivered by an the Underwriter to the Company not later than the later of (Aa) one (1) two business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (Bb) the date of first use of such Free Writing Prospectus.
(c) Each The Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such the Underwriter pursuant to Section 9(b12(b)(i) hereof or (ii) will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such the Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each The Underwriter represents and warrants to the Company that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company pursuant to Section 9(b12(b)(i) hereof or (ii) did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investor, include any untrue statement of a material fact or omit to state any material fact required to be stated therein necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and misleading; provided however, that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, no Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, Underwriter which information was not corrected by information subsequently supplied by the Company, Company to the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time of Sale sale to the applicable investor of the Offered Certificates (including without limitationwhich resulted in a loss, by means claim, damage or liability arising out of a contract of sale)based upon such misstatement or omission.
(e) The Company agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Any Free Writing Prospectus that constitutes an “"issuer free writing prospectus,” " as defined in Rule 433(h) under the Securities Act (each, an “Issuer Free Writing Prospectus”)Act;
(ii) Any Free Writing Prospectus or portion thereof delivered by an the Underwriter to the Company pursuant to Section 9(b12(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offeringhereof; and
(iviii) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e12(e) hereof by the Company shall may be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the final Prospectus relating to the Certificates pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and;
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv12(e)(iii) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus; and
(iv) the Company shall not be required to file (A) Issuer Information contained in any Free Writing Prospectus of an offering participant other than the Issuer, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (B) any Free Writing Prospectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does reflect the final terms thereof.
(g) Each The Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or it and distributed by or on behalf of such the Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g) hereof12(g), each the Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such the Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such the Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g12(e) and 9(h) hereof12(g), neither the Company nor any the Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriters Underwriter each agree that any Free Writing Prospectuses prepared by each such party the Underwriter shall contain the following legendlegend and any other legend that the Underwriter shall deem necessary or appropriate: “The depositor issuer has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in the that registration statement and other documents the depositor issuer has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity issuer and this offering. You may get these documents for free by visiting XXXXX on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxx. Alternatively, the depositor, Deutsche Bank Securities, Inc.issuer, any underwriter or any dealer participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll toll-free 1-800-503294-4611 1322 or you e-mail a request to xx.xxxxxxxxxx_xxxxxxxxxxxx@xxxxxxxxxxxxxx.xxx. The securities may not be suitable for all investors. Banc of America Securities LLC and its affiliates may acquire, hold or sell positions in these securities, or in related derivatives, and may have an investment or commercial banking relationship with the issuer. The asset-backed securities referred to in these materials, and the asset pools backing them, are subject to modification or revision (including the possibility that one or more classes of securities may be split, combined or eliminated at any time prior to issuance or availability of a final prospectus) and are offered on a "when, as and if issued" basis. You understand that, when you are considering the purchase of these securities, a contract of sale will come into being no sooner than the date on which the relevant class has been priced and we have confirmed the allocation of securities to be made to you; any "indications of interest" expressed by emailing xxxxxxxxxx.xxxx@xx.xxxyou, and any "soft circles" generated by us, will not create binding contractual obligations for you or us. Because the asset-backed securities are being offered on a "when, as and if issued" basis, any contract of sale will terminate, by its terms, without any further obligation or liability between us, if the securities themselves, or the particular class to which the contract relates, are not issued. Because the asset-backed securities are subject to modification or revision, any such contract also is conditioned upon the understanding that no material change will occur with respect to the relevant class of securities prior to the closing date. If a material change does occur with respect to such class, our contract will terminate, by its terms, without any further obligation or liability between us (the "Automatic Termination"). If an Automatic Termination occurs, we will provide you with revised offering materials reflecting the material change and give you an opportunity to purchase such class. To indicate your interest in purchasing the class, you must communicate to us your desire to do so within such timeframe as may be designated in connection with your receipt of the revised offering materials. The information contained in these materials may be based on assumptions regarding market conditions and other matters as reflected herein. Banc of America Securities LLC (the "Underwriter") makes no representation regarding the reasonableness of such assumptions or the likelihood that any such assumptions will coincide with actual market conditions or events, and these materials should not be relied upon for such purposes. The Underwriter and its affiliates, officers, directors, partners and employees, including persons involved in the preparation or issuance of these materials, may, from time to time, have long or short positions in, and buy and sell, the securities mentioned herein or derivatives thereof (including options). Information in these materials is current as of the date appearing on the material only. Information in these materials regarding any securities discussed herein supersedes all prior information regarding such securities. These materials are not to be construed as an offer to sell or the solicitation of any offer to buy any security in any jurisdiction where such an offer or solicitation would be illegal. This free writing prospectus is being delivered to you solely to provide you with information about the offering of the securities referred to in this free writing prospectus and to solicit an offer to purchase the securities, 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 securities until we have accepted your offer to purchase securities. We will not accept any offer by you to purchase the securities, and you will not have any contractual commitment to purchase any of the securities until after you have received the preliminary prospectus. You may withdraw your offer to purchase securities at any time prior to our acceptance of your offer. The information in this free writing prospectus supersedes information contained in any prior similar free writing prospectus relating to these securities prior to the time of your commitment to purchase. This free writing prospectus is not an offer to sell or solicitation of an offer to buy these securities in any state where such offer, solicitation or sale is not permitted. The Company and the Underwriter each agree that any Free Writing Prospectus prepared by the Underwriter and that is not an Issuer Free Writing Prospectus or that does not contain Issuer Information shall also contain the following legend: Neither the issuer of the securities nor any of its affiliates prepared, provided, approved or verified any statistical or numerical information presented herein, although that information may be based in part on loan level data provided by the issuer or its affiliates.”
(k) The Company and the Underwriters each Underwriter agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 12 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(l) In the event that the Company becomes aware, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Issuer Free Writing Prospectus”), the Company shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each The Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company Depositor that after the final Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor purchaser of Offered Certificates unless such information is preceded or accompanied by the final Prospectus.
Appears in 2 contracts
Samples: Underwriting Agreement (Banc of America Funding 2006-D Trust), Underwriting Agreement (Banc of America Funding Corp)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no Underwriter shall convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i1) is made in reliance on Rule 134 under the Securities Act, (ii2) is made in reliance on Rule 172 under the Securities Act, (iii3) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iv4) constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no Underwriter The Underwriters shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “ABS informational and computational material,” as defined in Item 1101(a) of Regulation AB under the Securities Act (“ABS Informational and Computational Material”), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(b) Each Underwriter shall deliver to the Company Depositor, no later than two business days prior to the date of first use thereof, (a) any Underwriter Free Writing Prospectus prepared by or on behalf of such Underwriter that contains any “issuer information”, as defined in Rule 433(h) under the Securities Act1 (“Issuer Information”) (which the parties hereto agree includes, without limitation, the Sellers’ Information) and (b) any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (each, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) business day prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
(i) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to Certificates. Notwithstanding the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and
(ii) foregoing, any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an Underwriter the Underwriters to the Company Depositor not later than the later of (Aa) one (1) two business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (Bb) the date of first use of such Free Writing Prospectus.
(c) Each Underwriter represents and warrants to the Company Depositor that the Free Writing Prospectuses to be furnished to the Company Depositor by such the Underwriter pursuant to Section 9(b8(b) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors purchasers of Offered Certificates by such the Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each Underwriter represents and warrants to the Company Depositor that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company Depositor pursuant to Section 9(b) hereof 8(b), when read together with all other Time of Sale Information, did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investorTime of Sale, and will not as of the Closing Date, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and misleading; provided however, that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, no Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, which information was not corrected by information Corrective Information subsequently supplied by the Company, Depositor or any Seller to the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time of Sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale)Sale.
(e) The Company Depositor agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Any Issuer Free Writing Prospectus”);
(ii) Any Free Writing Prospectus or portion thereof delivered by an the Underwriter to the Company Depositor pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed8(b);; and
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company Depositor or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e8(e) hereof by the Company Depositor shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may shall be filed by the Company 1 Such definition of “issuer information” is further clarified by footnote 271 to SEC Release No. 33-8591. See 70 Fed. Reg. 44,722, at 44,751 (August 3, 2005). Depositor with the Commission within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may shall be filed by the Company Depositor with the Commission not later than the later of the due date for filing of the final Prospectus relating to the Offered Certificates pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and;
(iii) any Any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv8(e)(iii) hereof mayshall, if no payment has been made or consideration has been given by or on behalf of the Company Depositor for the Free Writing Prospectus or its dissemination, be filed by the Company Depositor with the Commission not later than four (4) business days after the Company Depositor becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus; and
(iv) The Depositor shall not be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any other offering participant other than the Depositor, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (B) any Free Writing Prospectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does not reflect the final terms thereof.
(g) Each Underwriter (with shall provide to the reasonable cooperation of the Company) shall file with the Commission Depositor any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or it and distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing ProspectusProspectus and the Depositor shall file such Free Writing Prospectus with the Commission.
(h) Notwithstanding the provisions of Section 9(g) hereof8(g), each Underwriter (with shall provide to the reasonable cooperation of the Company) Depositor, who shall then file with the Commission Commission, any Free Writing Prospectus for which such the Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company Depositor or any other offering participant, not later than four (4) business days after such the Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g8(e) and 9(h) hereof8(g), neither the Company Depositor nor any Underwriter the Underwriters shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company Depositor and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party it shall contain a legend substantially in the following legendform: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in the that registration statement and other documents the depositor has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity depositor and this offering. You may get these documents for free by visiting XXXXX on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxx. Alternatively, the depositor, Deutsche Bank Securities, Inc., any underwriter or any dealer participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll free 10-800000-503000-4611 0000 or by emailing xxxxxxxxxx.xxxx@xx.xxx.”
(k) The Company and the Underwriters each agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 for a period of three (3) years following the initial bona fide offering of the Offered Certificatesxxxx-xxxxxxxxxx@xxxxxxxx.xxx.
(l1) In the event that the Company Depositor becomes awareaware that, at any time between as of the Time of Sale or Sale, any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains contained any untrue statement of a material fact or omits omitted to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information)therein, in the light of the circumstances under which they were made, not misleading misleading, when read in conjunction with the Time of Sale Information (such Issuer Free Writing Prospectus a “Defective Issuer Free Writing Prospectus”), the Company Depositor shall notify the Underwriters of such untrue statement or omission thereof within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company Depositor shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In ) and (2) in the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any Underwriter becomes aware that that, as of the Time of Sale, any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains contained any untrue statement of a material fact or omits omitted to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information)therein, in the light of the circumstances under which they were made, not misleading misleading, when read in conjunction with the Time of Sale Information (such Underwriter Free Writing Prospectus, a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission Depositor thereof within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the CompanyDepositor:
(iA) if If the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus with Corrective Information that corrects the material misstatement in or omission from the Defective Underwriter Free Writing Prospectus (such corrected Underwriter Free Writing Prospectus, a “Corrected Underwriter Free Writing Prospectus” and, together with a the Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(iiB) either (A) deliver Deliver the Corrected Free Writing Prospectus to each investor purchaser of an Offered Certificate which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or purchaser;
(BC) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each Notify such investor purchaser in a prominent prompt fashion that the any prior contract of sale with such investor purchaser has been terminated, and of such investorpurchaser’s rights as a result of termination of such agreement and agreement;
(yD) provide Provide such investor purchaser with an opportunity to affirmatively agree in writing to purchase the Offered Certificates enter into a new contract of sale on the terms described in the Corrected Free Writing Prospectus; and
(iiiE) comply Comply with any other requirements for reformation of the original contract of sale with such investorsale, as described in Section IV.A.2.c IV.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(nl) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company Depositor that after the final Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates that contains Issuer Information to a prospective investor purchaser of Offered Certificates unless such information is preceded or accompanied by the final Prospectus.
(m) The Depositor and each Underwriter agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 8 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
Appears in 2 contracts
Samples: Underwriting Agreement (J.P. Morgan Chase Commercial Mortgage Securities Trust 2012-Lc9), Underwriting Agreement (J.P. Morgan Chase Commercial Mortgage Securities Trust 2013-C10)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no the Underwriter shall not convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iviii) constitutes a “"free writing prospectus,” " as defined in Rule 405 under the Securities Act (a “"Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance"). Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no the Underwriter shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “"ABS informational and computational material,” " as defined in Item 1101(a) of Regulation AB under the Securities Act (“"ABS Informational and Computational Material”"), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(bi) Each The Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (eachCompany, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) two business day days prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
thereof, (iA) any such Free Writing Prospectus prepared by or on behalf of the Underwriter that contains any "issuer information," as defined in Rule 433(h) under the Act and footnote 271 of the Commission's Securities Offering Reform Release No. 33-8591 ("Issuer Information"), and (B) any Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; andCertificates.
(ii) Notwithstanding the provisions of Section (b)(i), any such Free Writing Prospectus described therein that contains only ABS Informational and Computational Materials Material may be delivered by an the Underwriter to the Company not later than the later of (Aa) one (1) two business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (Bb) the date of first use of such Free Writing Prospectus.
(c) Each The Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such the Underwriter pursuant to Section 9(b11(b)(i) hereof or (ii) will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such the Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each The Underwriter represents and warrants to the Company that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company pursuant to Section 9(b) hereof 11(b), when read in conjunction with the Time of Sale Information, did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investorTime of Sale, include any untrue statement of a material fact or omit to state any material fact required to be stated therein necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and misleading; provided however, that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, no Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, Underwriter which information was not corrected by information Corrective Information subsequently supplied by the Company, Company to the related Loan Seller or the related Transaction Party to such Underwriter within a reasonable period of time prior to the Time of Sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale)Sale.
(e) The Company agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Any Free Writing Prospectus that constitutes an “"issuer free writing prospectus,” " as defined in Rule 433(h) under the Securities Act (each, an “"Issuer Free Writing Prospectus”");
(ii) Any Free Writing Prospectus or portion thereof delivered by an the Underwriter to the Company pursuant to Section 9(b11(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offeringhereof; and
(iviii) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e11(e) hereof by the Company shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the final Prospectus relating to the Certificates pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and;
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv11(e)(iii) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus; and
(iv) the Company shall not be required to file (A) Issuer Information contained in any Free Writing Prospectus of an offering participant other than the Issuer, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (B) any Free Writing Prospectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does reflect the final terms thereof.
(g) Each The Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or it and distributed by or on behalf of such the Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g) hereof11(g), each the Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such the Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such the Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g11(e) and 9(h) hereof11(g), neither the Company nor any the Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriters Underwriter each agree that any Free Writing Prospectuses prepared by each such party the Underwriter shall contain the following legend: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in the that registration statement and other documents the depositor has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity issuer and this offering. You may get these documents for free by visiting XXXXX EDGAR on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxxwww.sec.gov. Alternatively, the depositor, Deutsche Bank Securities, Inc.xxx xepositor, any underwriter or any dealer underwritex xx xxx xxaler participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll toll-free 1-800-503294-4611 1322 or you e-mail a request to dg.prospectus_dxxxxxxxxxxx@xxfasecurities.com. The securities may xxx xx xxxxxxxx xxx xxx xxxxxxxxx. Xanc of America Securities LLC and its affiliates may acquire, hold or sell positions in these securities, or in the related derivatives, and may have an investment or commercial banking relationship with the depositor. Because the asset-backed securities are being offered on a "when, as and if issued" basis, any contract of sale will terminate, by emailing xxxxxxxxxx.xxxx@xx.xxx.”
its terms, without any further obligation or liability between us, if the securities themselves, or the particular class to which the contract relates, are not issued. Because the asset-backed securities are subject to modification or revision, any such contract also is conditioned upon the understanding that no material change will occur with respect to the relevant class of securities prior to the closing date. If a material change does occur with respect to such class, our contract will terminate, by its terms, without any further obligation or liability between us (k) the "Automatic Termination"). If an Automatic Termination occurs, we will provide you with revised offering materials reflecting the material change and give you an opportunity to purchase such class. To indicate your interest in purchasing the class, you must communicate to us your desire to do so within such timeframe as may be designated in connection with your receipt of the revised offering materials. This free writing prospectus is being delivered to you solely to provide you with information about the offering of the securities referred to in this free writing prospectus and to solicit an offer to purchase the securities, 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 securities until we have accepted your offer to purchase securities. You may withdraw your offer to purchase securities at any time prior to our acceptance of your offer. The information in this free writing prospectus supersedes information contained in any prior similar free writing prospectus relating to these securities prior to the time of your commitment to purchase. This free writing prospectus is not an offer to sell or solicitation of an offer to buy these securities in any state where such offer, solicitation or sale is not permitted. The Company and the Underwriters Underwriter each agree to retain all that any Free Writing Prospectuses that they have used Prospectus prepared by the Underwriter and that are is not required to be filed pursuant to this Section 9 for a period of three (3) years an Issuer Free Writing Prospectus or that does not contain Issuer Information shall also contain the following legend: Neither the initial bona fide offering issuer of the Offered Certificatessecurities nor any of its affiliates prepared, provided, approved or verified any statistical or numerical information presented herein, although that information may be based in part on loan level data provided by the issuer or its affiliates.
(lk) In the event that the Company becomes awareaware that, at any time between as of the Time of Sale or Sale, any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “"Defective Issuer Free Writing Prospectus”"), the Company shall notify the Underwriters of such untrue statement or omission Underwriter within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company shall, if requested by the UnderwritersUnderwriter, prepare and deliver to the Underwriters Underwriter a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “"Corrected Issuer Free Writing Prospectus”"). .
(l) In the event that the Underwriter become aware that, at any time between as of the Time of Sale or any Subsequent Time of Sale and the Closing DateSale, any Underwriter becomes aware that any Underwriter Free Writing Prospectus prepared by or on behalf of the Underwriter delivered thereby to an investor in any Offered Certificates contains contained any untrue statement of a material fact or omits omitted to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading misleading, when considered in conjunction with the Time of Sale Information (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “"Defective Free Writing Prospectus”"), such the Underwriter shall notify the Company of such untrue statement or omission thereof within one business day after discovery discovery.
(unless the Company was the party that informed such m) The Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter a Free Writing ProspectusProspectus prepared by or on behalf of the Underwriter, prepare a Free Writing Prospectus that which corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “"Corrected Free Writing Prospectus”"), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or ;
(B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (xiii) notify in writing each such investor in a prominent fashion that the prior contract of sale with such the investor has been terminated, and of such the investor’s 's rights as a result of termination of such agreement and agreement;
(yiv) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iiiv) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s 's Securities Offering Reform Release No. 33-8591.
(mn) In The Company and the event that a Defective Underwriter agree to retain all Free Writing Prospectus was an Issuer Free Writing Prospectus Prospectuses that they have used and that are not required to be filed pursuant to this Section 11 for a period of three years following the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation initial bona fide offering of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investorsCertificates.
(o) Each The Underwriter covenants with the Company that after the final Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor purchaser of Offered Certificates unless such information is preceded or accompanied by the final Prospectus.
Appears in 2 contracts
Samples: Underwriting Agreement (ABFC 2006-Opt1 Trust), Underwriting Agreement (ABFC 2007-Wmc1 Trust)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no Underwriter shall convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, (iv) constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no Underwriter shall prepare, convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “ABS informational and computational material,” as defined in Item 1101(a) of Regulation AB under the Securities Act (“ABS Informational and Computational Material”), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(b) Each Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (each, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) business day prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
(i) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and
(ii) any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an Underwriter to the Company not later than the later of (A) one (1) business day prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (B) the date of first use of such Free Writing Prospectus.
(c) Each Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such Underwriter pursuant to Section 9(b) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each Underwriter represents and warrants to the Company that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company pursuant to Section 9(b) hereof did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investor, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein, in the light of the circumstances under which they were made, not misleading and that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, however, no Underwriter makes any representation or warranty to the extent such misstatements or omissions are based upon or arise out of an untrue statement or omission in the Issuer Information supplied by the Company to such UnderwriterCompany, the Loan Seller Information or the Transaction Party Information, which information was not corrected by information subsequently supplied by the Company, the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time of Sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale).
(e) The Company agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Issuer Free Writing Prospectus”);
(ii) Any Free Writing Prospectus or portion thereof delivered by an Underwriter to the Company pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e) hereof by the Company shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(g) Each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g) hereof, each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g) and 9(h) hereof, neither the Company nor any Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party shall contain the following legend: “The depositor filed a registration statement (including a prospectus) with the Securities and Exchange Commission (SEC File No. 333-193376177354) for the offering to which this communication relates. Before you invest, you should read the prospectus in the registration statement and other documents the depositor has filed with the Securities and Exchange Commission for more complete information about the depositor, the issuing entity and this offering. You may get these documents for free by visiting XXXXX EXXXX on the Securities and Exchange Commission website at xxx.xxx.xxxwxx.xxx.xxx. Alternatively, the depositordepositor or UBS Securities LLC, Deutsche Bank Securitiesor any other underwriter, Inc., any underwriter or any dealer participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll free 1-800000-503000-4611 or by emailing xxxxxxxxxx.xxxx@xx.xxx0000.”
(k) The Company and the Underwriters each agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(l) In the event that the Company becomes aware, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in the light of the circumstances under which they were made, not misleading (a “Defective Issuer Free Writing Prospectus”), the Company shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare cause to be prepared and deliver delivered to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in the light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company that after the Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor unless such information is preceded or accompanied by the final Prospectus.
Appears in 2 contracts
Samples: Underwriting Agreement (UBS-Barclays Commercial Mortgage Trust 2012-C3), Underwriting Agreement (UBS-Barclays Commercial Mortgage Trust 2012-C2)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no Underwriter shall convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i1) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii2) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iv3) constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no The Underwriter shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “"ABS informational and computational material,” " as defined in Item 1101(a) of Regulation AB under the Securities Act (“"ABS Informational and Computational Material”"), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(b) Each Underwriter shall deliver to the Company Depositor, no later than two business days prior to the date of first use thereof, (a) any Underwriter Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (each, an “Underwriter Free Writing Prospectus”) that contains any "issuer information", as defined in Rule 433(h) under the Securities Act(1) ("Issuer Information by no later than one Information") (1which the parties hereto agree includes, without limitation, Seller's Information) business day prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
and (ib) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to Certificates. Notwithstanding the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and
(ii) foregoing, any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an the Underwriter to the Company Depositor not later than the later of (Aa) one (1) two business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (Bb) the date of first use of such Free Writing Prospectus.
(c) Each Underwriter represents and warrants to the Company Depositor that the Free Writing Prospectuses to be furnished to the Company Depositor by such the Underwriter pursuant to Section 9(b8(b) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors purchasers of Offered Certificates by such the Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each Underwriter represents and warrants to the Company Depositor that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company Depositor pursuant to Section 9(b) hereof 8(b), when read together with all other Time of Sale Information, did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investorTime of Sale, and will not as of the Closing Date, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and misleading; provided however, that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, no Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, which information was not corrected by information Corrective Information subsequently supplied by the Company, Depositor or any Seller to the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time of Sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale)Sale.
(e) The Company Depositor agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Any Issuer Free Writing Prospectus”);
(ii) Any Free Writing Prospectus or portion thereof delivered by an the Underwriter to the Company Depositor pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed8(b);; and
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company Depositor or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e8(e) hereof by the Company Depositor shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may shall be filed by the Company Depositor with the Commission within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may shall be filed by the Company Depositor with the Commission not later than the later of the due date for filing of the final Prospectus relating to the Offered Certificates pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and;
(iii) any Any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv8(e)(iii) hereof mayshall, if no payment has been made or consideration has been given by or on behalf of the Company Depositor for the Free Writing Prospectus or its dissemination, be filed by the Company Depositor with the Commission not later than four (4) business days after the Company Depositor becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus; and
(iv) The Depositor shall not be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any other offering participant other than the Depositor, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (B) any Free Writing Prospectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does not reflect the final terms thereof.
(g) Each Underwriter (with shall provide to the reasonable cooperation of the Company) shall file with the Commission Depositor any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or it and distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing ProspectusProspectus and the Depositor shall file such Free Writing Prospectus with the Commission.
(h) Notwithstanding the provisions of Section 9(g) hereof8(g), each Underwriter (with shall provide to the reasonable cooperation of the Company) Depositor, who shall then file with the Commission Commission, any Free Writing Prospectus for which such the Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company Depositor or any other offering participant, not later than four (4) business days after such the Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g8(e) and 9(h) hereof8(g), neither the Company Depositor nor any the Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company Depositor and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party it shall contain a legend substantially in the following legendform: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in the that registration statement and other documents the depositor has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity trust and this offering. You may get these documents for free by visiting XXXXX EDGAR on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxxwww.sec.gov. Alternatively, the depositor, Deutsche Bank Securities, Inc.thx xxxositor, any underwriter or any dealer xxxxer participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll free 1-800866-503400-4611 7834 or by emailing xxxxxxxxxx.xxxx@xx.xxx.”
(k) The Company and the Underwriters each agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 for a period of three (3) years following the initial bona fide offering of the Offered CertificatesAvinash Bappanad at bappanad_avixxxx@xxxxxxxx.com.
(l1) In the event that the Company becomes awareXx xxx xxxxx xxat txx Xxxxxxxxx xxxxxxx xxxxx xxat, at any time between as of the Time of Sale or Sale, any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains contained any untrue statement of a material fact or omits omitted to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information)therein, in light of the circumstances under which they were made, not misleading misleading, when read in conjunction with the Time of Sale Information (such Issuer Free Writing Prospectus a “"Defective Issuer Free Writing Prospectus”"), the Company Depositor shall notify the Underwriters of such untrue statement or omission thereof within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company Depositor shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “"Corrected Issuer Free Writing Prospectus”). In ") and (2) in the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any Underwriter becomes aware that that, as of the Time of Sale, any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains contained any untrue statement of a material fact or omits omitted to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information)therein, in the light of the circumstances under which they were made, not misleading misleading, when read in conjunction with the Time of Sale Information, (such Underwriter Free Writing Prospectus, a “"Defective Underwriter Free Writing Prospectus” " and, together with a Defective Issuer Free Writing Prospectus, a “"Defective Free Writing Prospectus”"), such Underwriter shall notify the Company of such untrue statement or omission Depositor thereof within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the CompanyDepositor:
(iA) if If the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus with Corrective Information that corrects the material misstatement in or omission from the Defective Underwriter Free Writing Prospectus (such corrected Underwriter Free Writing Prospectus, a "Corrected Underwriter Free Writing Prospectus" and, together with a the Corrected Issuer Free Writing Prospectus, a “"Corrected Free Writing Prospectus”"), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(iiB) either (A) deliver Deliver the Corrected Free Writing Prospectus to each investor purchaser of an Offered Certificate which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or purchaser;
(BC) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each Notify such investor purchaser in a prominent prompt fashion that the any prior contract of sale with such investor purchaser has been terminated, and of such investor’s purchaser's rights as a result of termination of such agreement and agreement;
(yD) provide Provide such investor purchaser with an opportunity to affirmatively agree in writing to purchase the Offered Certificates enter into a new contract of sale on the terms described in the Corrected Free Writing Prospectus; and
(iiiE) comply Comply with any other requirements for reformation of the original contract of sale with such investorsale, as described in Section IV.A.2.c IV.2.c of the Commission’s 's Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(nl) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company Depositor that after the final Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates that contains Issuer Information to a prospective investor purchaser of Offered Certificates unless such information is preceded or accompanied by the final Prospectus.
Appears in 2 contracts
Samples: Underwriting Agreement (J.P. Morgan Chase Commercial Mortgage Securities Trust 2006-Cibc16), Underwriting Agreement (J.P. Morgan Chase Commercial Mortgage Securities Trust 2006-Cibc17)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no the Underwriter shall not convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iviii) constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no the Underwriter shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “"ABS informational and computational material,” " as defined in Item 1101(a) of Regulation AB under the Securities Act (“"ABS Informational and Computational Material”"), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(bi) Each The Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (eachCompany, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) two business day days prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
thereof, (iA) any such Free Writing Prospectus prepared by or on behalf of the Underwriter that contains any "issuer information," as defined in Rule 433(h) under the Act ("Issuer Information"), and (B) any Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; andCertificates.
(ii) Notwithstanding the provisions of Section 12(b)(i), any such Free Writing Prospectus described therein that contains only ABS Informational and Computational Materials Material, may be delivered by an the Underwriter to the Company not later than the later of (Aa) one (1) two business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (Bb) the date of first use of such Free Writing Prospectus.
(c) Each The Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such the Underwriter pursuant to Section 9(b12(b)(i) hereof or (ii) will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such the Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each The Underwriter represents and warrants to the Company that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company pursuant to Section 9(b12(b)(i) hereof or (ii) did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investor, include any untrue statement of a material fact or omit to state any material fact required to be stated therein necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Actmisleading; provided, no however, that the Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, Underwriter which information was not corrected by information subsequently supplied by the Company, Company to the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time of Sale sale to the applicable investor of the Offered Certificates (including without limitationwhich resulted in a loss, by means claim, damage or liability arising out of a contract of sale)based upon such misstatement or omission.
(e) The Company agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Any Free Writing Prospectus that constitutes an “"issuer free writing prospectus,” " as defined in Rule 433(h) under the Securities Act (each, an “"Issuer Free Writing Prospectus”");
(ii) Any Free Writing Prospectus or portion thereof delivered by an the Underwriter to the Company pursuant to Section 9(b12(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offeringhereof; and
(iviii) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e12(e) hereof by the Company shall may be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the final Prospectus relating to the Certificates pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and;
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv12(e)(iii) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus; and
(iv) the Company shall not be required to file (A) Issuer Information contained in any Free Writing Prospectus of an offering participant other than the Issuer, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (B) any Free Writing Prospectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does reflect the final terms thereof.
(g) Each The Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or it and distributed by or on behalf of such the Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g) hereof12(g), each the Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such the Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such the Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g12(e) and 9(h) hereof12(g), neither the Company nor any the Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriters Underwriter each agree that any Free Writing Prospectuses prepared by each such party the Underwriter shall contain the following legendlegend and any other legend that the Underwriter shall deem necessary or appropriate: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in the that registration statement and other documents the depositor has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity and this offering. You may get these documents for free by visiting XXXXX on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxx. Alternatively, the depositor, Deutsche Bank Securities, Inc., any underwriter or any dealer participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll toll-free 10-800000-503000-4611 0000 or you e-mail a request to xx.xxxxxxxxxx_xxxxxxxxxxxx@xxxxxxxxxxxxxx.xxx. The securities may not be suitable for all investors. Banc of America Securities LLC and its affiliates may acquire, hold or sell positions in these securities, or in related derivatives, and may have an investment or commercial banking relationship with the depositor. The asset-backed securities referred to in these materials, and the asset pools backing them, are subject to modification or revision (including the possibility that one or more classes of securities may be split, combined or eliminated at any time prior to issuance or availability of a final prospectus) and are offered on a "when, as and if issued" basis. You understand that, when you are considering the purchase of these securities, a contract of sale will come into being no sooner than the date on which the relevant class has been priced and we have confirmed the allocation of securities to be made to you; any "indications of interest" expressed by emailing xxxxxxxxxx.xxxx@xx.xxxyou, and any "soft circles" generated by us, will not create binding contractual obligations for you or us. Because the asset-backed securities are being offered on a "when, as and if issued" basis, any such contract of sale will terminate, by its terms, without any further obligation or liability between us, if the securities themselves, or the particular class to which the contract relates, are not issued. Because the asset-backed securities are subject to modification or revision, any such contract also is conditioned upon the understanding that no material change will occur with respect to the relevant class of securities prior to the closing date. If a material change does occur with respect to such class, our contract will terminate, by its terms, without any further obligation or liability between us (the "Automatic Termination"). If an Automatic Termination occurs, we will provide you with revised offering materials reflecting the material change and give you an opportunity to purchase such class. To indicate your interest in purchasing the class, you must communicate to us your desire to do so within such timeframe as may be designated in connection with your receipt of the revised offering materials. The information contained in these materials may be based on assumptions regarding market conditions and other matters as reflected herein. Banc of America Securities LLC (the "Underwriter") makes no representation regarding the reasonableness of such assumptions or the likelihood that any such assumptions will coincide with actual market conditions or events, and these materials should not be relied upon for such purposes. The Underwriter and its affiliates, officers, directors, partners and employees, including persons involved in the preparation or issuance of these materials, may, from time to time, have long or short positions in, and buy and sell, the securities mentioned herein or derivatives thereof (including options). Information in these materials is current as of the date appearing on the material only. Information in these materials regarding any securities discussed herein supersedes all prior information regarding such securities. These materials are not to be construed as an offer to sell or the solicitation of any offer to buy any security in any jurisdiction where such an offer or solicitation would be illegal. This free writing prospectus is being delivered to you solely to provide you with information about the offering of the securities referred to in this free writing prospectus and to solicit an offer to purchase the securities, 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 securities until we have accepted your offer to purchase securities. You may withdraw your offer to purchase securities at any time prior to our acceptance of your offer. The information in this free writing prospectus supersedes information contained in any prior similar free writing prospectus relating to these securities prior to the time of your commitment to purchase. This free writing prospectus is not an offer to sell or solicitation of an offer to buy these securities in any state where such offer, solicitation or sale is not permitted. The Company and the Underwriter each agree that any Free Writing Prospectus prepared by the Underwriter and that is not an Issuer Free Writing Prospectus or that does not contain Issuer Information shall also contain the following legend: Neither the issuer of the securities nor any of its affiliates prepared, provided, approved or verified any statistical or numerical information presented herein, although that information may be based in part on loan level data provided by the issuer or its affiliates.”
(k) The Company and the Underwriters each Underwriter agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 12 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(l) In the event that the Company becomes aware, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Issuer Free Writing Prospectus”), the Company shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each The Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company Depositor that after the final Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor purchaser of Offered Certificates unless such information is preceded or accompanied by the final Prospectus.
Appears in 2 contracts
Samples: Underwriting Agreement (Banc of America Funding 2006-F Trust), Underwriting Agreement (Banc of America Funding 2006-H Trust)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no the Underwriter shall not convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iviii) constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no the Underwriter shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “"ABS informational and computational material,” " as defined in Item 1101(a) of Regulation AB under the Securities Act (“"ABS Informational and Computational Material”"), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(bi) Each The Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (eachCompany, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) two business day days prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
thereof, (iA) any such Free Writing Prospectus prepared by or on behalf of the Underwriter that contains any "issuer information," as defined in Rule 433(h) under the Act ("Issuer Information"), and (B) any Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; andCertificates.
(ii) Notwithstanding the provisions of Section 12(b)(i), any such Free Writing Prospectus described therein that contains only ABS Informational and Computational Materials Material, may be delivered by an the Underwriter to the Company not later than the later of (Aa) one (1) two business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (Bb) the date of first use of such Free Writing Prospectus.
(c) Each The Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such the Underwriter pursuant to Section 9(b12(b)(i) hereof or (ii) will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such the Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each The Underwriter represents and warrants to the Company that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company pursuant to Section 9(b12(b)(i) hereof or (ii) did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investor, include any untrue statement of a material fact or omit to state any material fact required to be stated therein necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and misleading; provided however, that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, no Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, Underwriter which information was not corrected by information subsequently supplied by the Company, Company to the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time of Sale sale to the applicable investor of the Offered Certificates (including without limitationwhich resulted in a loss, by means claim, damage or liability arising out of a contract of sale)based upon such misstatement or omission.
(e) The Company agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Any Free Writing Prospectus that constitutes an “"issuer free writing prospectus,” " as defined in Rule 433(h) under the Securities Act (each, an “"Issuer Free Writing Prospectus”");
(ii) Any Free Writing Prospectus or portion thereof delivered by an the Underwriter to the Company pursuant to Section 9(b12(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offeringhereof; and
(iviii) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e12(e) hereof by the Company shall may be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the final Prospectus relating to the Certificates pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and;
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv12(e)(iii) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus; and
(iv) the Company shall not be required to file (A) Issuer Information contained in any Free Writing Prospectus of an offering participant other than the Issuer, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (B) any Free Writing Prospectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does reflect the final terms thereof.
(g) Each The Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or it and distributed by or on behalf of such the Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g) hereof12(g), each the Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such the Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such the Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g12(e) and 9(h) hereof12(g), neither the Company nor any the Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriters Underwriter each agree that any Free Writing Prospectuses prepared by each such party the Underwriter shall contain the following legendlegend and any other legend that the Underwriter shall deem necessary or appropriate: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in the that registration statement and other documents the depositor has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity and this offering. You may get these documents for free by visiting XXXXX on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxx. Alternatively, the depositor, Deutsche Bank Securities, Inc., any underwriter or any dealer participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll toll-free 10-800000-503000-4611 0000 or you e-mail a request to xx.xxxxxxxxxx_xxxxxxxxxxxx@xxxxxxxxxxxxxx.xxx. The securities may not be suitable for all investors. Banc of America Securities LLC and its affiliates may acquire, hold or sell positions in these securities, or in related derivatives, and may have an investment or commercial banking relationship with the depositor. The asset-backed securities referred to in these materials, and the asset pools backing them, are subject to modification or revision (including the possibility that one or more classes of securities may be split, combined or eliminated at any time prior to issuance or availability of a final prospectus) and are offered on a "when, as and if issued" basis. You understand that, when you are considering the purchase of these securities, a contract of sale will come into being no sooner than the date on which the relevant class has been priced and we have confirmed the allocation of securities to be made to you; any "indications of interest" expressed by emailing xxxxxxxxxx.xxxx@xx.xxxyou, and any "soft circles" generated by us, will not create binding contractual obligations for you or us. Because the asset-backed securities are being offered on a "when, as and if issued" basis, any such contract of sale will terminate, by its terms, without any further obligation or liability between us, if the securities themselves, or the particular class to which the contract relates, are not issued. Because the asset-backed securities are subject to modification or revision, any such contract also is conditioned upon the understanding that no material change will occur with respect to the relevant class of securities prior to the closing date. If a material change does occur with respect to such class, our contract will terminate, by its terms, without any further obligation or liability between us (the "Automatic Termination"). If an Automatic Termination occurs, we will provide you with revised offering materials reflecting the material change and give you an opportunity to purchase such class. To indicate your interest in purchasing the class, you must communicate to us your desire to do so within such timeframe as may be designated in connection with your receipt of the revised offering materials. The information contained in these materials may be based on assumptions regarding market conditions and other matters as reflected herein. Banc of America Securities LLC (the "Underwriter") makes no representation regarding the reasonableness of such assumptions or the likelihood that any such assumptions will coincide with actual market conditions or events, and these materials should not be relied upon for such purposes. The Underwriter and its affiliates, officers, directors, partners and employees, including persons involved in the preparation or issuance of these materials, may, from time to time, have long or short positions in, and buy and sell, the securities mentioned herein or derivatives thereof (including options). Information in these materials is current as of the date appearing on the material only. Information in these materials regarding any securities discussed herein supersedes all prior information regarding such securities. These materials are not to be construed as an offer to sell or the solicitation of any offer to buy any security in any jurisdiction where such an offer or solicitation would be illegal. This free writing prospectus is being delivered to you solely to provide you with information about the offering of the securities referred to in this free writing prospectus and to solicit an offer to purchase the securities, 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 securities until we have accepted your offer to purchase securities. You may withdraw your offer to purchase securities at any time prior to our acceptance of your offer. The information in this free writing prospectus supersedes information contained in any prior similar free writing prospectus relating to these securities prior to the time of your commitment to purchase. This free writing prospectus is not an offer to sell or solicitation of an offer to buy these securities in any state where such offer, solicitation or sale is not permitted. The Company and the Underwriter each agree that any Free Writing Prospectus prepared by the Underwriter and that is not an Issuer Free Writing Prospectus or that does not contain Issuer Information shall also contain the following legend: Neither the issuer of the securities nor any of its affiliates prepared, provided, approved or verified any statistical or numerical information presented herein, although that information may be based in part on loan level data provided by the issuer or its affiliates.”
(k) The Company and the Underwriters each Underwriter agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 12 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(l) In the event that the Company becomes aware, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Issuer Free Writing Prospectus”), the Company shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each The Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company Depositor that after the final Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor purchaser of Offered Certificates unless such information is preceded or accompanied by the final Prospectus.
Appears in 2 contracts
Samples: Underwriting Agreement (Banc of America Funding 2006-5 Trust), Underwriting Agreement (Banc of America Funding 2006-E Trust)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no Underwriter shall convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, (iv) constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no Underwriter shall prepare, convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “ABS informational and computational material,” as defined in Item 1101(a) of Regulation AB under the Securities Act (“ABS Informational and Computational Material”), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead UnderwriterCastleOak and KeyBanc) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(b) Each Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (each, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) business day prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
(i) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and
(ii) any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an Underwriter to the Company not later than the later of (A) one (1) business day prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (B) the date of first use of such Free Writing Prospectus.
(c) Each Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such Underwriter pursuant to Section 9(b) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each Underwriter represents and warrants to the Company that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company pursuant to Section 9(b) hereof did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investor, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, however, no Underwriter makes any representation or warranty to the extent such misstatements or omissions are based upon or arise out of an untrue statement or omission in the Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, which information was not corrected by information subsequently supplied by the Company, the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time time of Sale sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale).
(e) The Company agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Issuer Free Writing Prospectus”);
(ii) Any Free Writing Prospectus or portion thereof delivered by an Underwriter to the Company pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e) hereof by the Company shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(g) Each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g) hereof, each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g) and 9(h) hereof, neither the Company nor any Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party shall contain the following legend: “The depositor filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376172143) for the offering to which this communication relates. Before you invest, you should read the prospectus in the registration statement and other documents the depositor has filed with the Securities and Exchange Commission for more complete information about the depositor, the issuing entity and this offering. You may get these documents for free by visiting XXXXX on the Securities and Exchange Commission website at xxx.xxx.xxx. Alternatively, the depositor, Deutsche Bank Securities, Inc., any underwriter or any dealer participating in this offering will arrange to send you the prospectus after filing if you request it by calling toll free 1-800-503-4611 or by emailing xxxxxxxxxx.xxxx@xx.xxx.”
(k) The Company and the Underwriters each agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(l) In the event that the Company becomes aware, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Issuer Free Writing Prospectus”), the Company shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company Issuer of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company Issuer shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company that after the Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor unless such information is preceded or accompanied by the final Prospectus.
Appears in 2 contracts
Samples: Underwriting Agreement (COMM 2012-Ccre5 Mortgage Trust), Underwriting Agreement (COMM 2012-Ccre5 Mortgage Trust)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no Underwriter shall convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, (iv) constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no Underwriter shall prepare, convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “ABS informational and computational material,” as defined in Item 1101(a) of Regulation AB under the Securities Act (“ABS Informational and Computational Material”), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead UnderwriterCastleOak, Guggenheim and KeyBanc) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(b) Each Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (each, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) business day prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
(i) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and
(ii) any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an Underwriter to the Company not later than the later of (A) one (1) business day prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (B) the date of first use of such Free Writing Prospectus.
(c) Each Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such Underwriter pursuant to Section 9(b) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each Underwriter represents and warrants to the Company that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company pursuant to Section 9(b) hereof did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investor, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, however, no Underwriter makes any representation or warranty to the extent such misstatements or omissions are based upon or arise out of an untrue statement or omission in the Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, which information was not corrected by information subsequently supplied by the Company, the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time time of Sale sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale).
(e) The Company agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Issuer Free Writing Prospectus”);
(ii) Any Free Writing Prospectus or portion thereof delivered by an Underwriter to the Company pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e) hereof by the Company shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(g) Each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g) hereof, each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g) and 9(h) hereof, neither the Company nor any Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party shall contain the following legend: “The depositor filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376184376) for the offering to which this communication relates. Before you invest, you should read the prospectus in the registration statement and other documents the depositor has filed with the Securities and Exchange Commission for more complete information about the depositor, the issuing entity and this offering. You may get these documents for free by visiting XXXXX EXXXX on the Securities and Exchange Commission website at xxx.xxx.xxxwxx.xxx.xxx. Alternatively, the depositor, Deutsche Bank Securities, Inc., any underwriter or any dealer participating in this offering will arrange to send you the prospectus after filing if you request it by calling toll toll-free 1-800-503-4611 or by emailing xxxxxxxxxx.xxxx@xx.xxxpxxxxxxxxx.xxxx@xx.xxx.”
(k) The Company and the Underwriters each agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(l) In the event that the Company becomes aware, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Issuer Free Writing Prospectus”), the Company shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company Issuer of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company Issuer shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company that after the Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor unless such information is preceded or accompanied by the final Prospectus.
Appears in 2 contracts
Samples: Underwriting Agreement (COMM 2013-Ccre12 Mortgage Trust), Underwriting Agreement (COMM 2013-Ccre12 Mortgage Trust)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no Underwriter shall convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, (iv) constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no Underwriter shall prepare, convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “ABS informational and computational material,” as defined in Item 1101(a) of Regulation AB under the Securities Act (“ABS Informational and Computational Material”), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any the Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead UnderwriterCastleOak and RBS) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(b) Each Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (each, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) business day prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
(i) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and
(ii) any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an Underwriter to the Company not later than the later of (A) one (1) business day prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (B) the date of first use of such Free Writing Prospectus.
(c) Each Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such Underwriter pursuant to Section 9(b) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each Underwriter represents and warrants to the Company that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company pursuant to Section 9(b) hereof did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investor, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, however, no Underwriter makes any representation or warranty to the extent such misstatements or omissions are based upon or arise out of an untrue statement or omission in the Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, which information was not corrected by information subsequently supplied by the Company, the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time time of Sale sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale).
(e) The Company agrees to file with the Commission the following:
(i) The Preliminary FWP, each the Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Issuer Free Writing Prospectus”);
(ii) Any Free Writing Prospectus or portion thereof delivered by an Underwriter to the Company pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e) hereof by the Company shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(g) Each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g) hereof, each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g) and 9(h) hereof, neither the Company nor any Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party shall contain the following legend: “The depositor filed a registration statement (including a prospectus) with the Securities and Exchange Commission (SEC File No. 333-193376172143) for the offering to which this communication relates. Before you invest, you should read the prospectus in the registration statement and other documents the depositor has filed with the Securities and Exchange Commission for more complete information about the depositor, the issuing entity and this offering. You may get these documents for free by visiting XXXXX EXXXX on the Securities and Exchange Commission website web site at xxx.xxx.xxxwxx.xxx.xxx. Alternatively, the depositor, Deutsche Bank Securities, Inc., any underwriter or any dealer participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll free 1-800-503-4611 or by emailing xxxxxxxxxx.xxxx@xx.xxxemail to the following address: pxxxxxxxxx.xxxx@xx.xxx.”
(k) The Company and the Underwriters each agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(l) In the event that the Company becomes aware, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Issuer Free Writing Prospectus”), the Company shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company Issuer of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company Issuer shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company that after the Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor unless such information is preceded or accompanied by the final Prospectus.
Appears in 2 contracts
Samples: Underwriting Agreement (COMM 2012-Ccre3 Mortgage Trust), Underwriting Agreement (COMM 2012-Ccre3 Mortgage Trust)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no Underwriter shall convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, (iv) constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no Underwriter shall prepare, convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “ABS informational and computational material,” as defined in Item 1101(a) of Regulation AB under the Securities Act (“ABS Informational and Computational Material”), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(b) Each Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (each, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) business day prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
(i) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and
(ii) any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an Underwriter to the Company not later than the later of (A) one (1) business day prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (B) the date of first use of such Free Writing Prospectus.
(c) Each Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such Underwriter pursuant to Section 9(b) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each Underwriter represents and warrants to the Company that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company pursuant to Section 9(b) hereof did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investor, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, however, no Underwriter makes any representation or warranty to the extent such misstatements or omissions are based upon or arise out of an untrue statement or omission in the Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, which information was not corrected by information subsequently supplied by the Company, the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time of Sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale).
(e) The Company agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Issuer Free Writing Prospectus”);
(ii) Any Free Writing Prospectus or portion thereof delivered by an Underwriter to the Company pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e) hereof by the Company shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(g) Each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g) hereof, each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g) and 9(h) hereof, neither the Company nor any Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party shall contain the following legend: “The depositor filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376184376) for the offering to which this communication relates. Before you invest, you should read the prospectus in the registration statement and other documents the depositor has filed with the Securities and Exchange Commission for more complete information about the depositor, the issuing entity and this offering. You may get these documents for free by visiting XXXXX on the Securities and Exchange Commission website at xxx.xxx.xxx. Alternatively, the depositor, Deutsche Bank Securities, Inc., any underwriter or any dealer participating in this offering will arrange to send you the prospectus after filing if you request it by calling toll free 1-800-503-4611 or by emailing xxxxxxxxxx.xxxx@xx.xxx.”
(k) The Company and the Underwriters each agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(l) In the event that the Company becomes aware, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Issuer Free Writing Prospectus”), the Company shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus,” and, and together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company that after the Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor unless such information is preceded or accompanied by the final Prospectus.
Appears in 2 contracts
Samples: Underwriting Agreement (COMM 2013-Ccre13 Mortgage Trust), Underwriting Agreement (COMM 2013-Ccre13 Mortgage Trust)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no Underwriter shall convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, (iv) constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no Underwriter shall prepare, convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “ABS informational and computational material,” as defined in Item 1101(a) of Regulation AB under the Securities Act (“ABS Informational and Computational Material”), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(b) Each Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (each, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) business day prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
(i) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and
(ii) any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an Underwriter to the Company not later than the later of (A) one (1) business day prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (B) the date of first use of such Free Writing Prospectus.
(c) Each Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such Underwriter pursuant to Section 9(b) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each Underwriter represents and warrants to the Company that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company pursuant to Section 9(b) hereof did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investor, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, however, no Underwriter makes any representation or warranty to the extent such misstatements or omissions are based upon or arise out of an untrue statement or omission in the Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, which information was not corrected by information subsequently supplied by the Company, the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time time of Sale sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale).
(e) The Company agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Issuer Free Writing Prospectus”);
(ii) Any Free Writing Prospectus or portion thereof delivered by an Underwriter to the Company pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e) hereof by the Company shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(g) Each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g) hereof, each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g) and 9(h) hereof, neither the Company nor any Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party shall contain the following legend: “The depositor filed a registration statement (including a prospectus) with the Securities and Exchange Commission (SEC File No. 333[___]-193376[______]) for the offering to which this communication relates. Before you invest, you should read the prospectus in the registration statement and other documents the depositor has filed with the Securities and Exchange Commission for more complete information about the depositor, the issuing entity and this offering. You may get these documents for free by visiting XXXXX on the Securities and Exchange Commission website web site at xxx.xxx.xxx. Alternatively, the depositor, Deutsche Bank Securities, Inc., any underwriter or any dealer participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll free 1-800-503-4611 [_____] or by emailing xxxxxxxxxx.xxxx@xx.xxxemail to the following address: [_____].”
(k) The Company and the Underwriters each agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(l) In the event that the Company becomes aware, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Issuer Free Writing Prospectus”), the Company shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company Issuer of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company Issuer shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company that after the Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor unless such information is preceded or accompanied by the final Prospectus.
Appears in 2 contracts
Samples: Underwriting Agreement (UBS Commercial Mortgage Securitization Corp.), Underwriting Agreement (UBS Commercial Mortgage Securitization Corp.)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no Underwriter shall convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i1) is made in reliance on Rule 134 under the Securities Act, (ii2) is made in reliance on Rule 172 under the Securities Act, (iii3) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iv4) constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no Underwriter The Underwriters shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “ABS informational and computational material,” as defined in Item 1101(a) of Regulation AB under the Securities Act (“ABS Informational and Computational Material”), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(b) Each Underwriter shall deliver to the Company Depositor, no later than two business days prior to the date of first use thereof, (a) any Underwriter Free Writing Prospectus prepared by or on behalf of such Underwriter that contains any “issuer information,” as defined in Rule 433(h) under the Securities Act1 (“Issuer Information”) (which the parties hereto agree includes, without limitation, the Sellers’ Information) and (b) any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (each, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) business day prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
(i) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to Certificates. Notwithstanding the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and
(ii) foregoing, any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an Underwriter the Underwriters to the Company Depositor not later than the later of (Aa) one two business days 1 Such definition of “issuer information” is further clarified by footnote 271 to SEC Release No. 33-8591. See 70 Fed. Reg. 44,722, at 44,751 (1) business day August 3, 2005). prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (Bb) the date of first use of such Free Writing Prospectus.
(c) Each Underwriter represents and warrants to the Company Depositor that the Free Writing Prospectuses to be furnished to the Company Depositor by such the Underwriter pursuant to Section 9(b8(b) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors purchasers of Offered Certificates by such the Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each Underwriter represents and warrants to the Company Depositor that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company Depositor pursuant to Section 9(b) hereof 8(b), when read together with all other Time of Sale Information, did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investorTime of Sale, and will not as of the Closing Date, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and misleading; provided however, that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, no Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, which information was not corrected by information Corrective Information subsequently supplied by the Company, Depositor or any Seller to the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time of Sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale)Sale.
(e) The Company Depositor agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Any Issuer Free Writing Prospectus”);
(ii) Any Free Writing Prospectus or portion thereof delivered by an the Underwriter to the Company Depositor pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed8(b);; and
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company Depositor or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e8(e) hereof by the Company Depositor shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may shall be filed by the Company Depositor with the Commission within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may shall be filed by the Company Depositor with the Commission not later than the later of the due date for filing of the final Prospectus relating to the Offered Certificates pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and;
(iii) any Any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv8(e)(iii) hereof mayshall, if no payment has been made or consideration has been given by or on behalf of the Company Depositor for the Free Writing Prospectus or its dissemination, be filed by the Company Depositor with the Commission not later than four (4) business days after the Company Depositor becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus; and
(iv) The Depositor shall not be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any other offering participant other than the Depositor, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (B) any Free Writing Prospectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does not reflect the final terms thereof.
(g) Each Underwriter (with shall provide to the reasonable cooperation of the Company) shall file with the Commission Depositor any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or it and distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing ProspectusProspectus and the Depositor shall file such Free Writing Prospectus with the Commission.
(h) Notwithstanding the provisions of Section 9(g) hereof8(g), each Underwriter (with shall provide to the reasonable cooperation of the Company) Depositor, who shall then file with the Commission Commission, any Free Writing Prospectus for which such the Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company Depositor or any other offering participant, not later than four (4) business days after such the Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g8(e) and 9(h) hereof8(g), neither the Company Depositor nor any Underwriter the Underwriters shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company Depositor and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party it shall contain a legend substantially in the following legendform: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in the that registration statement and other documents the depositor has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity depositor and this offering. You may get these documents for free by visiting XXXXX on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxx. Alternatively, the depositor, Deutsche Bank Securities, Inc., any underwriter or any dealer participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll free 10-800000-503000-4611 0000 or by emailing xxxxxxxxxx.xxxx@xx.xxx.”
(k) The Company and the Underwriters each agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 for a period of three (3) years following the initial bona fide offering of the Offered Certificatesxxxx-xxxxxxxxxx@xxxxxxxx.xxx.
(l1) In the event that the Company Depositor becomes awareaware that, at any time between as of the Time of Sale or Sale, any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains contained any untrue statement of a material fact or omits omitted to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information)therein, in the light of the circumstances under which they were made, not misleading misleading, when read in conjunction with the Time of Sale Information (such Issuer Free Writing Prospectus a “Defective Issuer Free Writing Prospectus”), the Company Depositor shall notify the Underwriters of such untrue statement or omission thereof within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company Depositor shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In ) and (2) in the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any Underwriter becomes aware that that, as of the Time of Sale, any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains contained any untrue statement of a material fact or omits omitted to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information)therein, in the light of the circumstances under which they were made, not misleading misleading, when read in conjunction with the Time of Sale Information (such Underwriter Free Writing Prospectus, a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission Depositor thereof within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the CompanyDepositor:
(iA) if If the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus with Corrective Information that corrects the material misstatement in or omission from the Defective Underwriter Free Writing Prospectus (such corrected Underwriter Free Writing Prospectus, a “Corrected Underwriter Free Writing Prospectus” and, together with a the Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(iiB) either (A) deliver Deliver the Corrected Free Writing Prospectus to each investor purchaser of an Offered Certificate which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or purchaser;
(BC) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each Notify such investor purchaser in a prominent prompt fashion that the any prior contract of sale with such investor purchaser has been terminated, and of such investorpurchaser’s rights as a result of termination of such agreement and agreement;
(yD) provide Provide such investor purchaser with an opportunity to affirmatively agree in writing to purchase the Offered Certificates enter into a new contract of sale on the terms described in the Corrected Free Writing Prospectus; and
(iiiE) comply Comply with any other requirements for reformation of the original contract of sale with such investorsale, as described in Section IV.A.2.c IV.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(nl) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company Depositor that after the final Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates that contains Issuer Information to a prospective investor purchaser of Offered Certificates unless such information is preceded or accompanied by the final Prospectus.
(m) The Depositor and each Underwriter agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 8 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
Appears in 2 contracts
Samples: Underwriting Agreement (JPMBB Commercial Mortgage Securities Trust 2015-C31), Underwriting Agreement (JPMBB Commercial Mortgage Securities Trust 2015-C29)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no Underwriter shall convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i1) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii2) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iv3) constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no The Underwriter shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “"ABS informational and computational material,” " as defined in Item 1101(a) of Regulation AB under the Securities Act (“"ABS Informational and Computational Material”"), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(b) Each Underwriter shall deliver to the Company Depositor, no later than two business days prior to the date of first use thereof, (a) any Underwriter Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (each, an “Underwriter Free Writing Prospectus”) that contains any "issuer information", as defined in Rule 433(h) under the Securities Act(1) ("Issuer Information by no later than one Information") (1which the parties hereto agree includes, without limitation, Seller's Information) business day prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
and (ib) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to Certificates. Notwithstanding the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and
(ii) foregoing, any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an the Underwriter to the Company Depositor not later than the later of (Aa) one (1) two business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (Bb) the date of first use of such Free Writing Prospectus.
(1) Such definition of "issuer information" is further clarified by footnote 271 to SEC Release No. 33,8591. See 70 Fed. Reg. 44,722, at 44,751 (August 3, 2005).
(c) Each Underwriter represents and warrants to the Company Depositor that the Free Writing Prospectuses to be furnished to the Company Depositor by such the Underwriter pursuant to Section 9(b8(b) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors purchasers of Offered Certificates by such the Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each Underwriter represents and warrants to the Company Depositor that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company Depositor pursuant to Section 9(b) hereof 8(b), when read together with all Time of Sale Information, did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investorTime of Sale, and will not as of the Closing Date, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and misleading; provided however, that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, no Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, which information was not corrected by information Corrective Information subsequently supplied by the CompanyDepositor or any Seller to the Underwriter far enough in advance of the Time of Sale (in any event, no later than two business days prior to the related Loan Seller or Time of Sale) so that the related Transaction Party Underwriter could have provided the Corrective Information to such Underwriter a reasonable period any prospective purchaser prior to the Time of Sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale)for such prospective purchaser.
(e) The Company Depositor agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Any Issuer Free Writing Prospectus”);
(ii) Any Free Writing Prospectus or portion thereof delivered by an the Underwriter to the Company Depositor pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed8(b);; and
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company Depositor or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e8(e) hereof by the Company Depositor shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may shall be filed by the Company Depositor with the Commission within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may shall be filed by the Company Depositor with the Commission not later than the later of the due date for filing of the final Prospectus relating to the Offered Certificates pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and;
(iii) any Any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv8(e)(iii) hereof mayshall, if no payment has been made or consideration has been given by or on behalf of the Company Depositor for the Free Writing Prospectus or its dissemination, be filed by the Company Depositor with the Commission not later than four (4) business days after the Company Depositor becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus; and
(iv) The Depositor shall not be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any other offering participant other than the Depositor, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (B) any Free Writing Prospectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does not reflect the final terms thereof.
(g) Each Underwriter (with shall provide to the reasonable cooperation of the Company) shall file with the Commission Depositor any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or it and distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing ProspectusProspectus and the Depositor shall file such Free Writing Prospectus with the Commission.
(h) Notwithstanding the provisions of Section 9(g) hereof8(g), each Underwriter (with shall provide to the reasonable cooperation of the Company) Depositor, who shall then file with the Commission Commission, any Free Writing Prospectus for which such the Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company Depositor or any other offering participant, not later than four (4) business days after such the Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g8(e) and 9(h) hereof8(g), neither the Company Depositor nor any the Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company Depositor and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party it shall contain a legend substantially in the following legendform: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in the that registration statement and other documents the depositor has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity trust and this offering. You may get these documents for free by visiting XXXXX EDGAR on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxxwww.sec.gov. Alternatively, the depositor, Deutsche Bank Securities, Inc.dxxxxxtor, any underwriter or any dealer xxx xxxxxx participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll free 1-800866-503400-4611 7834 or by emailing xxxxxxxxxx.xxxx@xx.xxx.”
(k) The Company and the Underwriters each agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 for a period of three (3) years following the initial bona fide offering of the Offered CertificatesAvinash Bappanad at bappanad_avinasx@xxxxxxxx.xxx.
(l0) In the event Xx xxx xxent that the Company becomes awareXxxxxxxxx xxxxxxx xxxxx xxxx, at any time between as of the Time of Sale or Sale, any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains contained any untrue statement of a material fact or omits omitted to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information)therein, in light of the circumstances under which they were made, not misleading misleading, when read in conjunction with the Time of Sale Information (such Issuer Free Writing Prospectus a “"Defective Issuer Free Writing Prospectus”"), the Company Depositor shall notify the Underwriters of such untrue statement or omission thereof within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company Depositor shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “"Corrected Issuer Free Writing Prospectus”). In ") and (2) in the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any Underwriter becomes aware that that, as of the Time of Sale, any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains contained any untrue statement of a material fact or omits omitted to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information)therein, in the light of the circumstances under which they were made, not misleading misleading, when read in conjunction with the Time of Sale Information, (such Underwriter Free Writing Prospectus, a “"Defective Underwriter Free Writing Prospectus” " and, together with a Defective Issuer Free Writing Prospectus, a “"Defective Free Writing Prospectus”"), such Underwriter shall notify the Company of such untrue statement or omission Depositor thereof within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the CompanyDepositor:
(iA) if If the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus with Corrective Information that corrects the material misstatement in or omission from the Defective Underwriter Free Writing Prospectus (such corrected Underwriter Free Writing Prospectus, a "Corrected Underwriter Free Writing Prospectus" and, together with a the Corrected Issuer Free Writing Prospectus, a “"Corrected Free Writing Prospectus”"), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(iiB) either (A) deliver Deliver the Corrected Free Writing Prospectus to each investor purchaser of an Offered Certificate which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or purchaser;
(BC) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each Notify such investor purchaser in a prominent prompt fashion that the any prior contract of sale with such investor purchaser has been terminated, and of such investor’s purchaser's rights as a result of termination of such agreement and agreement;
(yD) provide Provide such investor purchaser with an opportunity to affirmatively agree in writing to purchase the Offered Certificates enter into a new contract of sale on the terms described in the Corrected Free Writing Prospectus; and
(iiiE) comply Comply with any other requirements for reformation of the original contract of sale with such investorsale, as described in Section IV.A.2.c IV.2.c of the Commission’s 's Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(nl) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company Depositor that after the final Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates that contains Issuer Information to a prospective investor purchaser of Offered Certificates unless such information is preceded or accompanied by the final Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (J.P. Morgan Chase Commercial Mortgage Securities Trust 2007-Ldp10)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no the Underwriter shall not convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iviii) constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no the Underwriter shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “"ABS informational and computational material,” " as defined in Item 1101(a) of Regulation AB under the Securities Act (“"ABS Informational and Computational Material”"), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(bi) Each The Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (eachCompany, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) two business day days prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
thereof, (iA) any such Free Writing Prospectus prepared by or on behalf of the Underwriter that contains any "issuer information," as defined in Rule 433(h) under the Act ("Issuer Information"), and (B) any Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; andCertificates.
(ii) Notwithstanding the provisions of Section 12(b)(i), any such Free Writing Prospectus described therein that contains only ABS Informational and Computational Materials Material, may be delivered by an the Underwriter to the Company not later than the later of (Aa) one (1) two business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (Bb) the date of first use of such Free Writing Prospectus.
(c) Each The Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such the Underwriter pursuant to Section 9(b12(b)(i) hereof or (ii) will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such the Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each The Underwriter represents and warrants to the Company that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company pursuant to Section 9(b12(b)(i) hereof or (ii) did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investor, include any untrue statement of a material fact or omit to state any material fact required to be stated therein necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Actmisleading; provided, no however, that the Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, Underwriter which information was not corrected by information subsequently supplied by the Company, Company to the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time of Sale sale to the applicable investor of the Offered Certificates (including without limitationwhich resulted in a loss, by means claim, damage or liability arising out of a contract of sale)based upon such misstatement or omission.
(e) The Company agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Any Free Writing Prospectus that constitutes an “"issuer free writing prospectus,” " as defined in Rule 433(h) under the Securities Act (each, an “"Issuer Free Writing Prospectus”");
(ii) Any Free Writing Prospectus or portion thereof delivered by an the Underwriter to the Company pursuant to Section 9(b12(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offeringhereof; and
(iviii) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e12(e) hereof by the Company shall may be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the final Prospectus relating to the Certificates pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and;
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv12(e)(iii) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus; and
(iv) the Company shall not be required to file (A) Issuer Information contained in any Free Writing Prospectus of an offering participant other than the Issuer, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (B) any Free Writing Prospectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does reflect the final terms thereof.
(g) Each The Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or it and distributed by or on behalf of such the Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g) hereof12(g), each the Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such the Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such the Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g12(e) and 9(h) hereof12(g), neither the Company nor any the Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriters Underwriter each agree that any Free Writing Prospectuses prepared by each such party the Underwriter shall contain the following legendlegend and any other legend that the Underwriter shall deem necessary or appropriate: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in the that registration statement and other documents the depositor has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity and this offering. You may get these documents for free by visiting XXXXX on the Securities and Exchange Commission website at xxx.xxx.xxx. Alternatively, the depositor, Deutsche Bank Securities, Inc., any underwriter or any dealer participating in this offering will arrange to send you the prospectus after filing if you request it by calling toll free 1-800-503-4611 or by emailing xxxxxxxxxx.xxxx@xx.xxx.”
(k) The Company and the Underwriters each agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(l) In the event that the Company becomes aware, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Issuer Free Writing Prospectus”), the Company shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company that after the Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor unless such information is preceded or accompanied by the final Prospectus.this
Appears in 1 contract
Samples: Underwriting Agreement (Banc of America Funding 2006-7 Trust)
Offering Communications; Free Writing Prospectuses. (a) 5.1 Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no Underwriter neither the Company nor the Underwriters shall convey or deliver any written communication communication, as defined in Rule 405 under the Securities Act (other than the Prospectus) a "Written Communication"), to any person in connection with the initial offering of the Offered Underwritten Certificates, unless such written communication Written Communication (i) is made in reliance on and in conformity with Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iviii) constitutes a “"free writing prospectus,” " as defined in Rule 405 under the Securities Act (a “"Free Writing Prospectus”) or (v) such other written communication approved by "). Notwithstanding anything to the Company contrary contained in advance. Without limitation therebythis Agreement, without the prior written consent of the Company (Company, which consent may be withheld for any reason)in its sole discretion, no Underwriter the Underwriters shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates Underwritten Certificates, any Free Writing Prospectus or “unless such Free Writing Prospectus contains only ABS informational Informational and computational material,” Computational Material, as defined in Item 1101(a) of Regulation AB under the Securities Act (“"ABS Informational and Computational Material”"); provided, however, that any such Free Writing Prospectus may also contain a column showing the status of subscriptions for and allotments of the Certificates. The Underwriters shall not convey or deliver any ABS Informational and Computational Material in reliance upon on Rules 167 and 426 under the Securities Act, other than materials provided unless consented to it or requested by the Company. Any Free Writing Prospectus prepared by or on behalf of an Underwriter is referred to as an "Underwriter Free Writing Prospectus."
5.2 The Company shall deliver to the Underwriters (i) a Free Writing Prospectuses which contains general information about the offering, including the basic senior/subordinate structure of the Certificates (excluding the subdivision of the senior classes into tranches) and the publicly offered subordinated Certificates, to the extent known by the Company, including the expected parameters of the mortgage pool, risk factors applicable to Mortgage Loans of the type included in the mortgage pool, the identity of and material information about transaction parties known to the Company, the material tax and ERISA treatment of the Certificates and whether the Certificates will be "mortgage related securities" as defined in Section 3(a)(41) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and which contains a hyperlink to the Base Prospectus most recently filed by the Company with the Commission and a hyperlink to the portion of the Company's static pool website containing static pool information (such information, the "Applicable Static Pool Information") with respect to the series of Certificates (as determined by the Company) and (ii) a term sheet, dated February 11, 2008, relating to the subdivision of the senior classes into tranches (each, an "Issuer Free Writing Prospectuses (which include Prospectus").
5.3 The Company will file any Issuer Free Writing Prospectus with the Preliminary FWP Commission, and the Underwriters shall not convey or deliver any Additional FWP)Issuer Free Writing Prospectus to any person or entity until the Company has notified the Underwriters that it has completed such filing. Thereafter, any Issuer Free Writing Prospectus may be used by the Underwriters solely in connection with the marketing of the Certificates to institutional investors; provided that notwithstanding however, each Underwriter shall not enter into any "contract of sale" with any investor, within the meaning of Rule 159 under the Securities Act (a "Contract of Sale"), with respect to any Certificates, unless prior to the Time of Sale to each investor in the Certificates, such Underwriter shall have delivered to such investor the Issuer Free Writing Prospectuses, together with any amendment or supplement thereto supplied by the Company to such Underwriter sufficiently prior to the Time of Sale to such investor to reasonably permit delivery thereof by such Underwriter to such investor. Notwithstanding the foregoing, each after the final Prospectus is available to an Underwriter, such Underwriter (other than an shall not enter into any Contract of Sale with respect to the Certificates unless the Underwriter that is not has delivered to the related investor a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent copy of the Companyfinal Prospectus.
(b) 5.4 Each Underwriter shall deliver to the Company each Underwriter Free Writing Prospectus prepared by it that contains any "issuer information," as defined in Rule 433(h) under the Securities Act and footnote 271 of Securities Act Release No. 33-8591 ("Issuer Information") if such Underwriter Free Writing Prospectus or the portion thereof consisting of Issuer Information is required to be filed by the Company with the Commission pursuant to Rule 433 under the Securities Act ("Rule 433").
5.5 Any Underwriter Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (each, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) business day prior is required to the date of first use thereof or such later date as may be agreed delivered pursuant to by the Company; except that:
(i) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates Section 5.4 shall be delivered by such the applicable Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and
(ii) any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an Underwriter to the Company not later than the later of (A) one (1) two business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (B) Act; provided however, that if such Underwriter Free Writing Prospectus contains any information other than ABS Informational and Computational Material, it shall instead be delivered by the applicable Underwriter to the Company not later than two business days prior to the date of first use of such Free Writing Prospectus.
(c5.6 Not later than one business day after the Underwriters have determined the final structure of all classes of Certificates, and in no event later than the fourth business day preceding the due date for filing the final Prospectus pursuant to Rule 424(b) under the Securities Act, the Underwriters shall prepare and deliver to the Company a description of the final structure of the Certificates.
5.7 To facilitate the filing thereof by the Company, each Underwriter shall provide the Issuer Information contained in any Underwriter Free Writing Prospectus prepared by it that is required to be delivered to the Company pursuant to Section 5.4 or Section 5.6 in a separate document in accordance with Section 4.3 from the portion of such Underwriter Free Writing Prospectus which contains information other than Issuer Information.
5.8 Each Underwriter represents and warrants to the Company that the Underwriter Free Writing Prospectuses required to be furnished to the Company by such Underwriter it pursuant to Section 9(b) hereof 5.4 or Section 5.6 will constitute all Underwriter Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such Underwriter in connection with its offer and sale of the Offered Certificates.
(d) 5.9 Each Underwriter represents and warrants to the Company that each Underwriter Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to an investor in the Company pursuant to Section 9(b) hereof Underwritten Certificates did not, as of the date Time of Sale to any prospective investor to which such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective investorconveyed, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and that each when considered in conjunction with the remaining Time of Sale Information; provided however, such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, no Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon were the result of any misstatements in or arise out of an untrue statement or omission in omissions from the Issuer Information Mortgage Loan Data supplied by the Company to such Underwriter, the Loan Seller Information Underwriters which misstatements or the Transaction Party Information, which information was omissions were not corrected by information subsequently supplied by the Company, Company to the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period Underwriters sufficiently prior to the Time of Sale to the applicable investor of to reasonably permit the Offered Certificates (including without limitationdelivery thereof by such Underwriter to such investor or, by means to the extent that such misstatements are a substantial restatement in all material respects of a contract misstatement made in the Issuer Free Writing Prospectuses or such omissions are the result of sale)omission from the Issuer Free Writing Prospectuses which misstatements or omissions were not corrected by information subsequently supplied by the Company sufficiently prior to the Time of Sale to the applicable investor to reasonably permit delivery thereof by such Underwriter to such investor.
(e) The 5.10 Unless the Company determines that such filing is not required under Rule 433, the Company agrees to file with the Commission Commission, within the applicable time periods specified in Rule 433, the following:
(i) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Any Issuer Free Writing Prospectus”);
(ii) Any Free Writing Prospectus or portion thereof delivered by an Underwriter to the Company pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e) hereof by the Company shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and
(iiiii) any Any Underwriter Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed delivered by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(g) Each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered Underwriters to the Company pursuant to Section 9(b)) that is neither an Issuer 5.4 or Section 5.6 or, at the election of the Company, the portion of such Underwriter Free Writing Prospectus nor contains which consists of Issuer Information and Information.
5.11 Each Underwriter shall file with the Commission, within the applicable time period specified in Rule 433, any Free Writing Prospectus that is used or referred to by such Underwriter or distributed by it or on behalf of such Underwriter it in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than dissemination. Any access codes or passwords needed by an Underwriter to complete a filing shall be provided by the date of the first use of such Free Writing ProspectusCompany.
(h) Notwithstanding the provisions of Section 9(g) hereof, each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g) and 9(h) hereof, neither the Company nor any Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) 5.12 The Company and the Underwriters each agree Underwriter agrees that any Free Writing Prospectuses prepared by each such party it shall contain substantially the following legendlegend and may contain any other additional legends agreed to between the Company and the Underwriters: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in the that registration statement and other documents the depositor has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity depositor and this offering. You may get these documents for free by visiting XXXXX EDGAR on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxxwww.sec.gov. Alternatively, the depositor, Deutsche Bank Securities, Inc.xxx xssuer, any underwriter or any dealer ox xxx xxxxxr participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll toll-free 1-8008[xx-503xxx-4611 or by emailing xxxxxxxxxx.xxxx@xx.xxxxxxx]
5.13 Each Underwriter agrees to comply with the requirements of Rule 433 applicable to it, including, without limitation, the record retention requirements therein.”
(k) The Company 5.14 Consistent with the manner in which written records are maintained for its own purposes, each Underwriter agrees to keep and the Underwriters each agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 maintain, for a period of not less than three (3) years following the date of initial bona fide offering issuance of the Offered Underwritten Certificates.
(l) In , written records documenting, as to each investor in Underwritten Certificates, the event that the Company becomes aware, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an date on which each Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Issuer Free Writing Prospectus”), the Company shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any and each Underwriter that informed the Company of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects was conveyed to such investor.
5.15 In the material misstatement event of any litigation or omission in written notice of potential litigation against the Defective Issuer Company or any of its affiliates with respect to the Underwritten Certificates, each Underwriter shall, upon the request of the Company, make available to the Company copies of all records required to be maintained by it pursuant to Section 5.14 and any Free Writing Prospectus required to be retained by it pursuant to Section 5.13.
(i) Each Underwriter will not enter into, and each Underwriter will obligate in writing each dealer to whom it sells any Underwritten Certificates (which obligation may be in the form of a trade stipulation and which, in any event, shall name the Company as an intended third party beneficiary) not to enter into, any Contract of Sale with respect to the Underwritten Certificates with any investor other than an institutional investor, unless such corrected Issuer Free Writing Underwriter or such dealer has delivered to such investor a copy of the final Prospectus.
(ii) Each Underwriter shall not enter into any Contract of Sale with respect to the Underwritten Certificates with any institutional investor unless such Underwriter complies with the prospectus delivery and notice requirements of Rules 172 and 173 under the Securities Act.
(iii) With respect to any Contract of Sale that was entered into prior to the availability of the final Prospectus, the related Underwriter shall use its best efforts to subsequently terminate such Contract of Sale and enter into a “Corrected Issuer Free Writing Prospectus”). In new Contract of Sale by mutual agreement between the event that, at any time between applicable investor and the applicable Underwriter in which the Time of Sale or any Subsequent Time of Sale and Information is based solely upon the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing information contained in the final Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”"Final Reformed Contract"), such Underwriter . The Final Reformed Contract shall notify either be effected by (a) the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale reformation with such each investor, clearly identifying or highlighting which reformation shall be in the Corrective Information, form substantially attached hereto as Exhibit C or (Bb) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for manner sufficient to constitute a reformation of the original contract within the contemplation of sale with such investor, as described in Section IV.A.2.c IV.2.c of the Commission’s Securities Offering Reform Act Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company that after the Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor unless such information is preceded or accompanied by the final Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (National City Mortgage Capital Trust 2008-1)
Offering Communications; Free Writing Prospectuses. (a) (i) The Underwriter will not enter into any Contract of Sale with respect to the Certificates with any investor unless the Underwriter has delivered to such investor a copy of the final Prospectus and (ii) The Underwriter shall not enter into any Contract of Sale with respect to the Certificates with any investor unless the Underwriter complies with the prospectus delivery and notice requirements of Rules 172 and 173 under the Act.
(b) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no the Underwriter shall not convey or deliver any written communication communication, as defined in Rule 405 under the Act (other than the Prospectus) a "Written Communication"), to any person in connection with the initial offering of the Offered Certificates, unless such written communication Written Communication (i) is made in reliance on and in conformity with Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iviii) constitutes a “"free writing prospectus,” " as defined in Rule 405 under the Securities Act (a “"Free Writing Prospectus”) or (v) such other written communication approved by "). Notwithstanding anything to the Company contrary contained in advance. Without limitation therebythis Agreement, without the prior written consent of the Company (WFASC, which consent may be withheld for any reason)in its sole discretion, no the Underwriter shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates Certificates, any Free Writing Prospectus or “unless such Free Writing Prospectus contains only ABS informational Informational and computational material,” Computational Material, as defined in Item 1101(a) of Regulation AB under the Securities Act (“"ABS Informational and Computational Material”"); provided however, that any such Free Writing Prospectus may also contain a column showing the status of subscriptions for and allotments of the Certificates. The Underwriter shall not convey or deliver any ABS Informational and Computational Material in reliance upon on Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter . Any Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(b) Each Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such the Underwriter or any affiliate thereof (each, is referred to as an “"Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) business day prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:."
(i) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such The Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such deliver to WFASC each Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and
(ii) any such Free Writing Prospectus that contains only ABS Informational any "issuer information," as defined in Rule 433(h) under the Act and Computational Materials may footnote 271 of Securities Act Release No. 33-8591 ("Issuer Information") if such Underwriter Free Writing Prospectus or the portion thereof consisting of Issuer Information is required to be filed by WFASC with the Commission pursuant to Rule 433 under the Act ("Rule 433").
(ii) Any Underwriter Free Writing Prospectus that is required to be delivered pursuant to Section 9(c)(i) shall be delivered by an the Underwriter to the Company not WFASC no later than the later of (A) one (1) two business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (B) Act; provided however, that if such Underwriter Free Writing Prospectus contains any information other than ABS Informational and Computational Material, it shall instead be delivered by the Underwriter to WFASC not later than two business days prior to the date of first use of such Free Writing Prospectus.
(ciii) Each To facilitate the filing thereof by WFASC, the Underwriter shall provide the Issuer Information contained in any Underwriter Free Writing Prospectus that is required to be delivered to WFASC pursuant to this Section 9(c) in a separate document from the portion of such Free Writing Prospectus which contains information other than Issuer Information.
(d) The Underwriter represents and warrants to the Company WFASC that the Underwriter Free Writing Prospectuses required to be furnished to WFASC by the Company by such Underwriter pursuant to Section 9(b9(c) hereof will constitute all Underwriter Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such the Underwriter in connection with its offer and sale of the Offered Certificates.
(de) Each The Underwriter represents and warrants to the Company WFASC that each Underwriter Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to an investor in the Company pursuant to Section 9(b) hereof Certificates did not, as of the date Time of Sale to any prospective investor to which such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective investorconveyed, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and when considered in conjunction with the Prospectus; provided however, that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, no Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon were the result of any misstatements in or arise out of an untrue statement or omission in omissions from the Issuer Information Mortgage Loan Data supplied by WFASC to the Company to such Underwriter, the Loan Seller Information Underwriter which misstatements or the Transaction Party Information, which information was omissions were not corrected by information subsequently supplied by WFASC to the Company, the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period sufficiently prior to the Time of Sale to the applicable investor of to reasonably permit the Offered Certificates (including without limitation, delivery thereof by means of a contract of sale)the Underwriter to such investor.
(ef) The Company Unless WFASC determines that such filing is not required under Rule 433, WFASC agrees to file with the Commission Commission, within the following:applicable time periods specified in Rule 433, any Underwriter Free Writing Prospectus delivered by the Underwriter to WFASC pursuant to Section 9(c) or, at the election of WFASC, the portion of such Underwriter Free Writing Prospectus which consists of Issuer Information.
(ig) The Preliminary FWPUnderwriter shall file with the Commission, each Additional FWP and within the applicable time period specified in Rule 433, any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Issuer Free Writing Prospectus”);
(ii) Any Free Writing Prospectus or portion thereof delivered by an Underwriter to the Company pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e) hereof by the Company shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv) hereof may, if no payment has been made or consideration has been given distributed by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(g) Each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than dissemination. Any access codes or passwords needed by the date of Underwriter to complete the first use of such Free Writing Prospectusfiling shall be provided by WFASC.
(h) Notwithstanding the provisions of Section 9(g) hereof, each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g) and 9(h) hereof, neither the Company nor any Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company WFASC and the Underwriters Underwriter each agree agrees that any Free Writing Prospectuses prepared by each such party it shall contain substantially the following legend: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in the that registration statement and other documents the depositor issuer has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity depositor and this offering. You may get these documents for free by visiting XXXXX EDGAR on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxxwww.sec.gov. Alternatively, the depositor, Deutsche Bank Securities, Inc.xxx xssuer, any underwriter or any dealer ox xxx xxxxxr participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll toll-free 1-8008[xx-503xxx-4611 or by emailing xxxxxxxxxx.xxxx@xx.xxx.”xxxx]
(ki) The Company Underwriter agrees to comply with the requirements of Rule 433 under the Act applicable to the Underwriter including, without limitation, the record retention requirements therein.
(i) Consistent with the manner in which written records are maintained for its own purposes, the Underwriter agrees to keep and the Underwriters each agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 maintain, for a period of not less than three (3) years following the date of initial bona fide offering issuance of the Offered Certificates, written records documenting, as to each investor in Certificates, the Time of Sale and the date on which each Underwriter Free Writing Prospectus was conveyed to such investor.
(lii) In the event of any litigation or written notice of potential litigation against WFASC or any of its affiliates with respect to the Certificates, the Underwriter shall, upon the request of WFASC, make available to WFASC copies of all records required to be maintained by it pursuant to Section 9(j)(i) and any Free Writing Prospectus required to be retained by it pursuant to Section 9(i).
(i) In the event that the Company Underwriter becomes awareaware that, at any time between as of the applicable Time of Sale or to an investor in the Certificates, any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Underwriter Free Writing Prospectus prepared by or any Issuer Information contains on behalf of the Underwriter and delivered to such investor contained any untrue statement of a material fact or omits omitted to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information)therein, in light of the circumstances under which they were made, not misleading misleading, when considered in conjunction with the Prospectus (a “Defective Issuer such Free Writing Prospectus”, a "Defective Underwriter Free Writing Prospectus"), the Company Underwriter shall notify the Underwriters of such untrue statement or omission WFASC thereof within one business day after discovery discovery.
(except for any ii) The Underwriter that informed the Company of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the CompanyWFASC:
(iA) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that which corrects the material misstatement in or omission from the Defective Underwriter Free Writing Prospectus (together with a Corrected Issuer such corrected Underwriter Free Writing Prospectus, a “"Corrected Underwriter Free Writing Prospectus”"), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (AB) deliver the Corrected Underwriter Free Writing Prospectus to each investor which received the Defective Underwriter Free Writing Prospectus prior to entering into a contract Contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or Sale;
(B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (yC) provide such investor with an opportunity the following:
(1) adequate disclosure of the contractual arrangement;
(2) adequate disclosure of the investor's rights under the existing Contract of Sale at the time termination is sought;
(3) adequate disclosure of the new information that is necessary to affirmatively agree in writing to purchase correct the Offered Certificates on the terms described misstatements or omissions in the Corrected Free Writing Prospectusinformation given at the time of the original Contract of Sale; and
(iii4) a meaningful ability to elect to terminate or not terminate the prior Contract of Sale and to elect to enter into or not enter into a new Contract of Sale; and
(D) comply with any other requirements for reformation of the original contract Contract of sale with such investor, as Sale described in Section IV.A.2.c IV.2.c of the Commission’s Securities Offering Reform Act Release No. Act 33-8591.
(ml) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each The Underwriter covenants with the Company that, upon reasonable request, WFASC that it will make available to the Company WFASC, upon reasonable prior notice and at reasonable times during normal business hours, such personnel as are familiar with the Underwriter’s 's compliance procedures for the purpose of answering questions concerning the Underwriter’s 's practices and procedures for the preparation and dissemination of written materials Written Communications concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(om) Each The Underwriter covenants with the Company WFASC that after the final Prospectus is available available, the Underwriter shall not distribute any written information Written Communication concerning the Offered Certificates to a prospective investor unless such information communication is preceded or accompanied by the final Prospectus. The foregoing covenant shall not apply to any secondary market offers or sales of the Certificates by the Underwriter.
(n) The Underwriter agrees, upon request of WFASC, to provide to WFASC any information within the control of the Underwriter which WFASC may reasonably request to enable WFASC to timely and accurately meet its disclosure and reporting obligations under the Act and the Exchange Act.
(o) The Underwriter agrees to cause any credit enhancement provider, derivative counterparty, special servicer or credit risk manager arranged by the Underwriter in connection with the Certificates to provide to WFASC such narrative disclosure, financial information, including required accountants' consents, and other information as WFASC may reasonably request to enable WFASC to timely and accurately meet its disclosure and reporting obligations under the Act and the Exchange Act.
(p) Notwithstanding any other provision herein, the Underwriter and WFASC each agree to pay all costs and expenses of the other party including, without limitation, legal fees and expenses, incurred in connection with any successful action by the Underwriter or WFASC against the other party to enforce any of its rights set forth in this Section 9.
Appears in 1 contract
Samples: Underwriting Agreement (Wells Fargo Mortgage Backed Securities 2006-1 Trust)
Offering Communications; Free Writing Prospectuses. It is understood that the Underwriter proposes to offer the Offered Certificates for sale as set forth in this Agreement, the Time of Sale Information and the Prospectus. In connection with the offering of the Offered Certificates, the Underwriter may prepare and provide to prospective investors Free Writing Prospectuses, or portions thereof, subject to the following conditions (ato which such conditions the Underwriter agrees:
(i) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of Prospectus, the Securities Act, no Underwriter shall not convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i1) is made in reliance on Rule 134 under the Securities 1933 Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii2) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities 1933 Act, (iv3) is made in reliance on Rule 172 under the 1933 Act, (4) constitutes Time of Sale Information or a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) Prospectus that does not constitute Time of Sale Information, or (v5) constitutes such other written communication approved by the Company Depositor in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason)Depositor, no the Underwriter shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus “computational materials” or “ABS term sheets” in reliance on the “Kxxxxx/PSA” no-action letters or any “ABS informational and computational material,” as defined in Item 1101(a) of Regulation AB under the Securities 1933 Act (“ABS Informational and Computational Material”), in reliance upon Rules 167 and 426 under the Securities 1933 Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(bii) Each The Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (eachDepositor, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) business day prior to the date of first use thereof or such later date as may be agreed to by the CompanyDepositor, any Free Writing Prospectus that was prepared by or on behalf of the Underwriter (an “Underwriter Free Writing Prospectus”) and that contains any “issuer information,” as defined in Rule 433(h) under the 1933 Act and footnote 271 of the Commission’s Securities Offering Reform Release No. 33-8591 (“Issuer Information”) (which the parties hereto agree includes, without limitation, Mortgage Loan Seller Information); except that:
provided that (ia) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such the Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such the Underwriter to the Company by Depositor no later than the later of (Ax) the date such final terms have been established for all classes of the Offered Certificates or and (By) the date of first use; and
, and (iib) any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an the Underwriter to the Company not Depositor no later than the later of (Ax) one (1) business day prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities 1933 Act or such later date as may be agreed to by the Depositor and (By) the date of first use of such Free Writing Prospectus.
(ciii) Each The Underwriter represents and warrants to the Company Depositor that the Free Writing Prospectuses to be furnished to the Company Depositor by such the Underwriter pursuant to Section 9(b4(ii) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such the Underwriter in connection with its offer and sale of the Offered Certificates.
(div) Each The Underwriter represents and warrants to the Company Depositor that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company Depositor pursuant to Section 9(b4(ii) hereof did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investorTime of Sale, and will not as of the Closing Date, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained thereintherein (when read in conjunction with the Time of Sale Information), in the light of the circumstances under which they were made, not misleading and that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Actmisleading; provided, no however, that the Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company to such UnderwriterInformation, the Mortgage Loan Seller Information or the Transaction Party Information), which information was not corrected by information Corrective Information subsequently supplied by the Company, Depositor or the related Mortgage Loan Seller or to the related Transaction Party to such Underwriter within a reasonable period of time prior to the Time of Sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale)Sale.
(ev) The Company Depositor agrees to file with the Commission the following:
(iA) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Each Issuer Free Writing Prospectus”);
(iiB) Any Free Writing Prospectus or portion thereof delivered by an the Underwriter to the Company Depositor pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed4(ii);
(iiiC) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and;
(ivD) Any Free Writing Prospectus for which the Company Depositor or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(vE) any Any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus. The Depositor is required to file such Free Writing Prospectuses with the Commission in electronic format and the Underwriter shall 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) or such other format as is acceptable to the Depositor, except to the extent that the Depositor, in its sole discretion, waives such requirements.
(fvi) Any Free Writing Prospectus required to be filed pursuant to Section 9(e4(v) hereof by the Company Depositor shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(iA) any Any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may shall be filed by the Company Depositor with the Commission within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(iiB) any Any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may shall be filed by the Company Depositor with the Commission not no later than the later of (i) the due date for filing of the final Prospectus relating to the Offered Certificates pursuant to Rule 424(b) under the Securities 1933 Act or and (ii) two (2) business days after the date of first use of such Free Writing Prospectus; and
(iiiC) any Any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv4(v)(D) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company Depositor for the Free Writing Prospectus or its dissemination, be filed by the Company Depositor with the Commission not later than four (4) business days after the Company Depositor becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(gvii) Each The Underwriter (with the reasonable cooperation of the CompanyDepositor) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company Depositor pursuant to Section 9(b)4(ii) hereof) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or it and distributed by or on behalf of such the Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(hviii) Notwithstanding the provisions of Section 9(g4(vii) hereof, each the Underwriter (with the reasonable cooperation of the CompanyDepositor) shall file with the Commission any Free Writing Prospectus for which such the Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company Depositor or any other offering participant, not later than four (4) business days after such the Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(iix) Notwithstanding the provisions of Sections 9(e4(v) (other than 9(e)(iii4(v)(C)), 9(g4(vii) and 9(h4(viii) hereof, (A) neither the Company Depositor nor any the Underwriter shall be required to file (A1) any Issuer Information contained in any Underwriter Free Writing Prospectus or Free Writing Prospectus of an Underwriter or any other offering participant other than the CompanyDepositor, if such information is included (including through incorporation by reference) in a prospectus or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B2) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof thereof, or (C3) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission, and (B) the Underwriter shall not be required to file any Free Writing Prospectus to the extent that the information contained therein is included in a prospectus or Free Writing Prospectus previously filed that relates to the offering of the Offered Certificates.
(jx) The Company Depositor and the Underwriters Underwriter each agree that any Free Writing Prospectuses prepared by each such party it shall contain the following legend, or substantially equivalent legend that complies with Rule 433 of the 1933 Act: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission SEC (File No. Number 333-193376180779) for the offering to which this communication free writing prospectus relates. Before you invest, you should read the prospectus in the registration statement and other documents the depositor has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity and this offering. You may get these documents for free by visiting XXXXX EXXXX on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxxwxx.xxx.xxx. Alternatively, the depositor, Deutsche Bank Securities, Inc., any the underwriter or any dealer participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll free 1-800000-503000-4611 0000 or by emailing xxxxxxxxxx.xxxx@xx.xxxemail to pxxxxxxxxx@xx.xxx.”
(kxi) The Company Depositor and the Underwriters each Underwriter agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 4, and that have not been filed, for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(lxii) In (A) If the event that the Company Depositor becomes awareaware that, at any time between as of the Time of Sale or any Subsequent Time as of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in the light of the circumstances under which they were made, not misleading misleading, or conflicted or conflicts with the information contained in the Registration Statement (a “Defective Issuer Free Writing Prospectus”), the Company Depositor shall notify the Underwriters Underwriter of such untrue statement or omission or conflict within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company Depositor shall, if requested by the UnderwritersUnderwriter, prepare and deliver to the Underwriters Underwriter a Free Writing Prospectus that corrects the material misstatement misstatement, omission or omission conflict in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company that after the Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor unless such information is preceded or accompanied by the final Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Morgan Stanley Capital I Trust 2015-Ms1)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of Long Beach Preliminary Prospectus, the Securities ActUnderwriters have not conveyed or delivered, no Underwriter and shall not convey or deliver deliver, any written communication communication, as defined in Rule 405 under the Act (other than the Prospectus) a “Written Communication”), to any person in connection with the initial offering of the Offered Underwritten Certificates, unless such written communication Written Communication (i) is has been, or is, made in reliance on and in conformity with Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iviii) constituted or constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by ). Notwithstanding anything to the Company contrary contained in advance. Without limitation therebythis Agreement, without the prior written consent of the Company (Depositor, which consent may be withheld for any reason)in its sole discretion, no Underwriter the Underwriters have not conveyed or delivered, and shall prepare, not convey or deliver deliver, in connection with the initial offering of the Offered Certificates Underwritten Certificates, any Free Writing Prospectus or “unless such Free Writing Prospectus contains only ABS informational Informational and computational material,” Computational Material, as defined in Item 1101(a) of Regulation AB under the Securities Act (“ABS Informational and Computational Material”); provided however, that any such Free Writing Prospectus may also contain a column showing the status of subscriptions for the Underwritten Certificates. The Underwriters have not conveyed or delivered, and shall not convey or deliver, any ABS Informational and Computational Material in reliance upon on Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter . Any Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(b) Each Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such any Underwriter or any affiliate thereof (each, is referred to as an “Underwriter Free Writing Prospectus.”
(i) [Reserved].
(ii) The Underwriters have not conveyed or delivered, and shall not convey or deliver, a Free Writing Prospectus that contains general information about the offering, the expected parameters of the Mortgage Pool, transaction parties known to the Depositor and the tax and SMMEA treatment of the Certificates (the “Issuer Free Writing Prospectus”) to any person or entity until the Depositor has notified the Representatives that contains it has filed or will subsequently file the Issuer Free Writing Prospectus with the Commission. Thereafter, an Issuer Free Writing Prospectus may be used by the Underwriters solely in connection with the marketing of the Underwritten Certificates to institutional investors; provided however, the Underwriters shall not enter into any Issuer Information by “contract of sale” with any investor, within the meaning of Rule 159 under the Securities Act (a “Contract of Sale”) except as provided in Section 9(p).
(c) [Reserved].
(d) [Reserved].
(i) The Underwriters shall deliver to the Depositor, no later than one (1) business day prior to the date of first use thereof, each Underwriter Free Writing Prospectus that contains any “issuer information,” as defined in Rule 433(h) under the Securities Act and footnote 271 of Securities Act Release No. 33-8591 (“Issuer Information”) unless an Underwriter Free Writing Prospectus including such Issuer Information was previously delivered to the Depositor pursuant to this Section 9(e)(i) or was included in any Issuer Free Writing Prospectus or in the Long Beach Preliminary Prospectus.
(ii) Subject to Section 9(e)(i), to facilitate the filing thereof or such later date as may be agreed to by the Company; except that:
(i) Depositor, the Underwriters have provided, or shall provide, the Issuer Information contained in any Underwriter Free Writing Prospectus in a separate document from the portion of such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that which contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by no later information other than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; andIssuer Information.
(iiiii) Notwithstanding the provisions of Section 9(e)(i), any such Free Writing Prospectus described therein that contains only ABS Informational and Computational Materials may be delivered by an Underwriter the Representatives to the Company Depositor not later than the later of (Aa) one (1) business day four Business Days prior to the due date for filing of the Long Beach Prospectus pursuant to Rule 424(b) under the Securities Act or (Bb) the date of first use of such Free Writing Prospectus.
(cf) Each Underwriter represents The Underwriters represent and warrants warrant to the Company Depositor that the Underwriter Free Writing Prospectuses furnished, or to be furnished furnished, to the Company Depositor by such Underwriter the Representatives pursuant to Section 9(b9(e) hereof constitute, or will constitute constitute, all Underwriter Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such Underwriter the Underwriters in connection with its offer and sale of the Offered Underwritten Certificates.
(dg) Each Underwriter represents The Underwriters severally and warrants not jointly represent and warrant to the Company Depositor that each Underwriter Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it any of them to an investor in the Company pursuant to Section 9(b) hereof Underwritten Certificates did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investorits date, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and misleading; provided however, that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, no Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, which information (i) any Pool Error that was not corrected by information subsequently supplied by the Company, Depositor to the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period Underwriters prior to the Time of Sale to the applicable investor of investor, (ii) any information that is Issuer Information or contained in an Issuer Free Writing Prospectus, the Offered Certificates Long Beach Preliminary Prospectus or the Long Beach Prospectus, including any information incorporated therein by reference (including without limitation, other than information incorporated by means of a contract of sale)reference from the Underwriter Free Writing Prospectus) or (iii) any information that is contained in Pool Information.
(eh) The Company Depositor has filed, or agrees to file file, with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Any Issuer Free Writing Prospectus”);; and
(ii) Any Underwriter Free Writing Prospectus or portion thereof delivered by an Underwriter the Underwriters to the Company Depositor pursuant to Section 9(b9(e) hereof (but not any subsequent or, at the election of the Depositor, the portion of such Underwriter Free Writing Prospectus containing only information prepared by or on behalf which consists of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing ProspectusInformation.
(fi) Any Free Writing Prospectus required to be filed pursuant to Section 9(e9(h) hereof by the Company Depositor shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may be filed by the Company Depositor within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;; and
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains consists of only ABS Informational and Computational Material may be filed by the Company Depositor with the Commission not later than the later of the due date for filing of the Long Beach Prospectus relating to the Certificates pursuant to Rule 424(b) under the Securities Act or two (2) business days Business Days after the date of first use of such Free Writing Prospectus; and
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(gj) Each Notwithstanding the provisions of Section 9(h), the Depositor shall not be required to file (A) Issuer Information contained in any Underwriter (Free Writing Prospectus if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the reasonable cooperation Commission that relates to the offering of the CompanyUnderwritten Certificates, or (B) any Free Writing Prospectus or portion thereof that contains a description of the Underwritten Certificates or the offering of the Underwritten Certificates which does not reflect the final terms thereof.
(k) The Underwriters have filed, or shall file file, with the Commission any Underwriter Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that was or is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or distributed by or on behalf of such Underwriter any of the Underwriters in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Underwriter Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g) hereof, each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(il) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g9(h) and 9(h) hereof9(k), neither the Company Depositor nor any Underwriter the Underwriters shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(jm) The Company Depositor and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party it shall contain the following legend: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in the that registration statement and other documents the depositor issuer has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity depositor and this offering. You may get these documents for free by visiting XXXXX on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxx. Alternatively, the depositor, Deutsche Bank Securities, Inc.issuer, any underwriter or any dealer participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll toll-free 1-8008[xx-503xxx-4611 or by emailing xxxxxxxxxx.xxxx@xx.xxx.”xxxx]
(kn) The Company and Each Underwriter will comply with the Underwriters each agree record retention requirements of Rule 433(g) under the Securities Act relating to retain all Free Writing Prospectuses that they have used Prospectuses.
(i) Each Underwriter agrees to keep and that are not required to be filed pursuant to this Section 9 maintain, for a period of not less that three (3) years following the date of initial bona fide offering issuance of the Offered Underwritten Certificates, written records documenting, as to each investor in Underwritten Certificates, the Time of Sale and the date on which each Issuer Free Writing Prospectus and each Underwriter Free Writing Prospectus was conveyed to such investor.
(lii) In the event of any litigation or threatened litigation against the Depositor or any of its affiliates with respect to the Certificates, each Underwriter shall, upon the request of the Depositor, make available to the Depositor copies of all records required to be maintained by it pursuant to Section 9(o)(i) and any Free Writing Prospectus required to be retained by it pursuant to Section 9(n).
(p) The Underwriters have not entered into, and will not enter into, nor have they permitted, or will they permit, any dealer to enter into, any Contract of Sale with respect to the Underwritten Certificates with any investor, unless the Underwriters or such dealer have delivered to such investor a copy of the Long Beach Preliminary Prospectus (which delivery may be made by electronic delivery).
(q) (i) In the event that the Company Depositor becomes aware, at any time between aware that the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Long Beach Preliminary Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information)therein, in light of the circumstances under which they were made, not misleading (such Long Beach Preliminary Prospectus, a “Defective Issuer Free Writing Long Beach Preliminary Prospectus”), the Company Depositor shall notify the Underwriters of such untrue statement or omission thereof within one business day Business Day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company Depositor shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus Corrected Long Beach Preliminary Prospectus.
(such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein ii) [Reserved].
(when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omissioniii) and the The Underwriters shall, if requested by the CompanyDepositor:
(iA) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses[Reserved];
(ii) either (AB) deliver the Corrected Free Writing Long Beach Preliminary Prospectus to each investor which received the Defective Free Writing Long Beach Preliminary Prospectus prior to entering into a contract Contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing ProspectusSale; and
(iiiC) [Reserved];
(D) [Reserved];
(E) comply with any other the requirements for reformation of the original contract Contract of sale with such investor, as Sale described in Section IV.A.2.c IV.2.c of the Commission’s Securities Offering Reform Act Release No. 33-8591.
(miv) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs[Reserved].
(nr) Each Underwriter covenants with the Company that, upon reasonable request, Depositor that it will make available to the Company Depositor upon reasonable prior notice and at reasonable times such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials Written Communications concerning the Offered Certificates to prospective investors prior to the delivery of the final Long Beach Prospectus to such investors.
(os) Each Underwriter covenants with the Company Depositor that after the Long Beach Prospectus is available available, the Underwriter shall not distribute any written information Written Communication concerning the Offered Underwritten Certificates to a prospective investor unless such information communication is preceded or accompanied by the final Long Beach Prospectus.
(t) Each Underwriter agrees, upon request of the Depositor, to provide to the Depositor any information within the control of the Underwriter that the Depositor may reasonably request to enable the Depositor to timely and accurately meet its disclosure and reporting obligations under the Securities Act and the Exchange Act.
(u) Each Underwriter agrees to use reasonable efforts to cause any credit enhancement provider, derivative counterparty, special servicer or credit risk manager arranged by the Underwriter in connection with the Certificates to provide to the Depositor such narrative disclosure, financial information, including required accountants’ consents, and other information as the Depositor may reasonably request to enable the Depositor to timely and accurately meet its disclosure and reporting obligations under the Securities Act and the Exchange Act.
(v) Notwithstanding any other provision herein, the Underwriters, on one hand, and the Depositor, on the other hand, agree to pay all costs and expenses of the other parties including, without limitation, legal fees and expenses, incurred in connection with any successful action by the Underwriters or the Depositor against the other parties to enforce any of their rights set forth in this Section 9.
Appears in 1 contract
Samples: Underwriting Agreement (Long Beach Securities Corp)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no Underwriter shall convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, (iv) constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no Underwriter shall prepare, convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “ABS informational and computational material,” as defined in Item 1101(a) of Regulation AB under the Securities Act (“ABS Informational and Computational Material”), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter[ ], [ ], [ ] and [ ]) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(b) Each Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (each, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) business day prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
(i) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and
(ii) any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an Underwriter to the Company not later than the later of (A) one (1) business day prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (B) the date of first use of such Free Writing Prospectus.
(c) Each Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such Underwriter pursuant to Section 9(b) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each Underwriter represents and warrants to the Company that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company pursuant to Section 9(b) hereof did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investor, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, however, no Underwriter makes any representation or warranty to the extent such misstatements or omissions are based upon or arise out of an untrue statement or omission in the Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, which information was not corrected by information subsequently supplied by the Company, the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time time of Sale sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale).
(e) The Company agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Issuer Free Writing Prospectus”);
(ii) Any Free Writing Prospectus or portion thereof delivered by an Underwriter to the Company pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e) hereof by the Company shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(g) Each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g) hereof, each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g) and 9(h) hereof, neither the Company nor any Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party shall contain the following legend: “The depositor filed a registration statement (including a prospectus) with the Securities and Exchange Commission (SEC File No. 333-193376172143) for the offering to which this communication relates. Before you invest, you should read the prospectus in the registration statement and other documents the depositor has filed with the Securities and Exchange Commission for more complete information about the depositor, the issuing entity and this offering. You may get these documents for free by visiting XXXXX EXXXX on the Securities and Exchange Commission website web site at xxx.xxx.xxxwxx.xxx.xxx. Alternatively, the depositor, Deutsche Bank Securities, Inc., any underwriter or any dealer participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll free 1-800-503-4611 or by emailing xxxxxxxxxx.xxxx@xx.xxxemail to the following address: pxxxxxxxxx.xxxx@xx.xxx.”
(k) The Company and the Underwriters each agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(l) In the event that the Company becomes aware, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Issuer Free Writing Prospectus”), the Company shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company Issuer of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company Issuer shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company that after the Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor unless such information is preceded or accompanied by the final Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Deutsche Mortgage & Asset Receiving Corp)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no the Underwriter shall not convey or deliver any written communication communication, as defined in Rule 405 under the Act (other than the Prospectus) a "Written Communication"), to any person in connection with the initial offering of the Offered Certificates, unless such written communication Written Communication (i) is made in reliance on and in conformity with Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iviii) constitutes a “"free writing prospectus,” " as defined in Rule 405 under the Securities Act (a “"Free Writing Prospectus”) or (v) such other written communication approved by "). Notwithstanding anything to the Company contrary contained in advance. Without limitation therebythis Agreement, without the prior written consent of the Company (WFASC, which consent may be withheld for any reason)in its sole discretion, no the Underwriter shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates Certificates, any Free Writing Prospectus or “unless such Free Writing Prospectus contains only ABS informational Informational and computational material,” Computational Material, as defined in Item 1101(a) of Regulation AB under the Securities Act (“"ABS Informational and Computational Material”"), . The Underwriter shall not convey or deliver any ABS Informational and Computational Material in reliance upon on Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter . Any Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(b) Each Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such the Underwriter or any affiliate thereof (each, is referred to as an “"Underwriter Free Writing Prospectus”."
(b) WFASC shall prepare a Free Writing Prospectus (the "Issuer Free Writing Prospectus") and shall deliver such Issuer Free Writing Prospectus to the Underwriter after it files such Issuer Free Writing Prospectus with the Commission and the Underwriter shall not convey or deliver such Issuer Free Writing Prospectus to any person or entity until WFASC has notified the Underwriter that contains it has completed such filing. Thereafter, the Issuer Free Writing Prospectus may be used by the Underwriter solely in connection with the marketing of the Certificates to institutional investors; provided however, the Underwriter shall not enter into any Issuer Information by no later than one "contract of sale" with any investor, within the meaning of Rule 159 under the Act (1) business day a "Contract of Sale"), with respect to any Certificates, unless prior to the date Time of first use Sale to each investor in the Certificates, the Underwriter shall have delivered to such investor the Issuer Free Writing Prospectus and any additional Time of Sale Information, together with any amendment or supplement thereto supplied by WFASC to the Underwriter sufficiently prior to the Time of Sale to such investor to reasonably permit delivery thereof or such later date as may be agreed to by the Company; except that:Underwriter to such investor.
(i) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such The Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such deliver to WFASC each Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and
(ii) any such Free Writing Prospectus that contains only ABS Informational any "issuer information," as defined in Rule 433(h) under the Act and Computational Materials may footnote 271 of Securities Act Release No. 33-8591 ("Issuer Information") if such Underwriter Free Writing Prospectus or the portion thereof consisting of Issuer Information is required to be filed by WFASC with the Commission pursuant to Rule 433 under the Act ("Rule 433").
(ii) Any Underwriter Free Writing Prospectus that is required to be delivered pursuant to Section 9(c)(i) shall be delivered by an the Underwriter to the Company not WFASC no later than the later of (A) one (1) two business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (B) Act; provided however, that if such Underwriter Free Writing Prospectus contains any information other than ABS Informational and Computational Material, it shall instead be delivered by the Underwriter to WFASC not later than two business days prior to the date of first use of such Free Writing Prospectus.
(ciii) Each Not later than one business day after the Underwriter has determined the final structure of all classes of Certificates, and in no event later than the fourth business day preceding the due date for filing the final Prospectus pursuant to Rule 424(b) under the Act, the Underwriter shall prepare and deliver to WFASC an Underwriter Free Writing Prospectus (which may consist of a term sheet) containing a description of the final structure of the Certificates, irrespective of whether such Underwriter Free Writing Prospectus has been or will be conveyed or delivered by the Underwriter to any investor in the Certificates.
(iv) To facilitate the filing thereof by WFASC, the Underwriter shall provide the Issuer Information contained in any Underwriter Free Writing Prospectus that is required to be delivered to WFASC pursuant to this Section 9(c) in a separate document from the portion of such Free Writing Prospectus which contains information other than Issuer Information.
(d) The Underwriter represents and warrants to the Company WFASC that the Underwriter Free Writing Prospectuses required to be furnished to WFASC by the Company by such Underwriter pursuant to Section 9(b9(c) hereof will constitute all Underwriter Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such the Underwriter in connection with its offer and sale of the Offered Certificates.
(de) Each The Underwriter represents and warrants to the Company WFASC that each Underwriter Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to an investor in the Company pursuant to Section 9(b) hereof Certificates did not, as of the date Time of Sale to any prospective investor to which such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective investorconveyed, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and when considered in conjunction with the Time of Sale Information; provided however, that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, no Underwriter makes any no representation or warranty to the extent such misstatements or omissions were the result of any misstatements that are based upon or arise out a substantial restatement in all material respects of an untrue statement or omission a misstatement made in the Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, Free Writing Prospectus which information was misstatements were not corrected by information subsequently supplied by the Company, the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period WFASC sufficiently prior to the Time of Sale to the applicable investor of to reasonably permit delivery thereof by the Offered Certificates (including without limitation, by means of a contract of sale)Underwriter to such investor.
(ef) The Company Unless WFASC determines that such filing is not required under Rule 433, WFASC agrees to file with the Commission Commission, within the applicable time periods specified in Rule 433, the following:
(i) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Any Issuer Free Writing Prospectus”);
(ii) Any Free Writing Prospectus or portion thereof delivered by an Underwriter to the Company pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e) hereof by the Company shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and
(iiiii) Any Underwriter Free Writing Prospectus delivered by the Underwriter to WFASC pursuant to Section 9(c) or, at the election of WFASC, the portion of such Underwriter Free Writing Prospectus which consists of Issuer Information.
(g) The Underwriter shall file with the Commission, within the applicable time period specified in Rule 433, any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv) hereof may, if no payment has been made or consideration has been given that is distributed by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(g) Each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectusdissemination.
(h) Notwithstanding the provisions of Section 9(g) hereof, each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g) and 9(h) hereof, neither the Company nor any Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company WFASC and the Underwriters Underwriter each agree agrees that any Free Writing Prospectuses prepared by each such party it shall contain substantially the following legend: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in the that registration statement and other documents the depositor issuer has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity depositor and this offering. You may get these documents for free by visiting XXXXX EDGAR on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxxwww.sec.gov. AlternativelyAlternativxxx, the depositor, Deutsche Bank Securities, Inc.issuer, any underwriter or any xxx dealer participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll toll-free 1-8008[xx-503xxx-4611 xxxx] The asset-backed securities referred to in these materials, and the asset pools backing them, are subject to modification or revision (including the possibility that one or more classes of securities may be split, combined or eliminated at any time prior to issuance or availability of a final prospectus) and are offered on a "when, as and if issued" basis. You understand that, when you are considering the purchase of these securities, a contract of sale will come into being no sooner than the date on which the relevant class has been priced and the underwriter has confirmed the allocation of securities to be made to you; any "indications of interest" expressed by emailing xxxxxxxxxx.xxxx@xx.xxxyou, and any "soft circles" generated by the underwriter, will not create binding contractual obligations for you, the underwriter or us.”
(i) The Underwriter agrees to comply with the requirements of Rule 433 under the Act applicable to the Underwriter including, without limitation, the record retention requirements therein.
(i) The Underwriter agrees to keep and maintain, for a period of not less than three years following the date of initial issuance of the Certificates, written records documenting, as to each investor in Certificates, the Time of Sale and the date on which each Issuer Free Writing Prospectus and each Underwriter Free Writing Prospectus was conveyed to such investor.
(ii) In the event of any litigation or written notice of potential litigation against WFASC or any of its affiliates with respect to the Certificates, the Underwriter shall, upon the request of WFASC, make available to WFASC copies of all records required to be maintained by it pursuant to Section 9(j)(i) and any Free Writing Prospectus required to be retained by it pursuant to Section 9(i).
(k) The Company and the Underwriters each agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.[Reserved]
(li) In the event that WFASC becomes aware that the Company becomes aware, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information)therein, in light of the circumstances under which they were made, not misleading (such Free Writing Prospectus, a “"Defective Issuer Free Writing Prospectus”"), the Company WFASC shall notify the Underwriters of such untrue statement or omission Underwriter thereof within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company shall, if requested by the Underwriters, WFASC shall prepare and deliver to the Underwriters Underwriter a Free Writing Prospectus that which corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “"Corrected Issuer Free Writing Prospectus”"). .
(ii) In the event that the Underwriter becomes aware that, at any time between as of the applicable Time of Sale or any Subsequent Time of Sale and to an investor in the Closing DateCertificates, any Underwriter becomes aware that any Underwriter Free Writing Prospectus prepared by or on behalf of the Underwriter and delivered thereby to an such investor in any Offered Certificates contains contained any untrue statement of a material fact or omits omitted to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information)therein, in light of the circumstances under which they were made, not misleading misleading, when considered in conjunction with the Time of Sale Information (such Free Writing Prospectus, a “"Defective Underwriter Free Writing Prospectus” Prospectus and, together with a Defective Issuer Free Writing Prospectus, a “"Defective Free Writing Prospectus”"), such the Underwriter shall notify the Company of such untrue statement or omission WFASC thereof within one business day after discovery discovery.
(unless the Company was the party that informed such iii) The Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the CompanyWFASC:
(iA) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that which corrects the material misstatement in or omission from the Defective Underwriter Free Writing Prospectus (such corrected Underwriter Free Writing Prospectus, a "Corrected Underwriter Free Writing Prospectus" and, together with a Corrected Issuer Free Writing Prospectus, a “"Corrected Free Writing Prospectus”"), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (AB) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract Contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or Sale;
(B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (yC) provide such investor with an opportunity the following:
(1) adequate disclosure of the contractual arrangement;
(2) adequate disclosure of the investor's rights under the existing Contract of Sale at the time termination is sought;
(3) adequate disclosure of the new information that is necessary to affirmatively agree in writing to purchase correct the Offered Certificates on the terms described misstatements or omissions in the Corrected Free Writing Prospectusinformation given at the time of the original Contract of Sale; and
(iii4) a meaningful ability to elect to terminate or not terminate the prior Contract of Sale and to elect to enter into or not enter into a new Contract of Sale; and
(D) comply with any other requirements for reformation of the original contract Contract of sale with such investor, as Sale described in Section IV.A.2.c IV.2.c of the Commission’s Securities Offering Reform Act Release No. Act 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each The Underwriter covenants with the Company that, upon reasonable request, WFASC that it will make available to the Company WFASC, upon reasonable prior notice and at reasonable times during normal business hours, such personnel as are familiar with the Underwriter’s 's compliance procedures for the purpose of answering questions concerning the Underwriter’s 's practices and procedures for the preparation and dissemination of written materials Written Communications concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(on) Each The Underwriter covenants with the Company WFASC that after the final Prospectus is available available, the Underwriter shall not distribute any written information Written Communication concerning the Offered Certificates to a prospective investor unless such information communication is preceded or accompanied by the final Prospectus.
(o) The Underwriter agrees, upon request of WFASC, to provide to WFASC any information within the control of the Underwriter which WFASC may reasonably request to enable WFASC to timely and accurately meet its disclosure and reporting obligations under the Act and the Exchange Act.
(p) The Underwriter agrees to cause any credit enhancement provider, derivative counterparty, special servicer or credit risk manager arranged by the Underwriter in connection with the Certificates to provide to WFASC such narrative disclosure, financial information, including required accountants' consents, and other information as WFASC may reasonably request to enable WFASC to timely and accurately meet its disclosure and reporting obligations under the Act and the Exchange Act. In addition, upon request by WFASC, the Underwriter agrees to cause the party providing the information required by the immediately preceding sentence to provide indemnity satisfactory to WFASC relating to such disclosure and financial information.
(q) Notwithstanding any other provision herein, the Underwriter and WFASC each agree to pay all costs and expenses of the other party including, without limitation, legal fees and expenses, incurred in connection with any successful action by the Underwriter or WFASC against the other party to enforce any of its rights set forth in this Section 9.
Appears in 1 contract
Samples: Underwriting Agreement (Wells Fargo Asset Securities Corp)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities 1933 Act, no Underwriter shall convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities 1933 Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, 1933 Act or (iviii) constitutes Rule 159 Information or a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company Depositor (which consent may be withheld for any reason), no Underwriter shall prepare, convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “"ABS informational and computational material,” " as defined in Item 1101(a) of Regulation AB under the Securities 1933 Act (“"ABS Informational and Computational Material”"), in reliance upon Rules 167 and 426 under the Securities Act, 1933 Act other than materials provided to it by Credit Suisse Securities (USA) LLC or the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the CompanyDepositor.
(b) Each Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (eachDepositor, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one two (12) business day days prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
Depositor, (i) any Free Writing Prospectus that was prepared by or on behalf of such Underwriter (an "Underwriter Free Writing Prospectus") and that contains any "issuer information," as defined in Rule 433(h) under the 1933 Act and footnote 271 of the Commission's Securities Offering Reform Release No. 33-8591 ("Issuer Information") (which the parties hereto agree includes, without limitation, Mortgage Loan Sellers' Information), and (ii) any Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to Certificates. Notwithstanding the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and
(ii) foregoing, any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an Underwriter to the Company Depositor not later than the later of (A) one two (12) business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities 1933 Act or such later date as may be agreed to by the Depositor or (B) the date of first use of such Free Writing Prospectus. It is acknowledged and agreed that the Rule 159 Information does not include any Underwriter Free Writing Prospectus.
(c) Each Underwriter represents and warrants to the Company Depositor that the Free Writing Prospectuses to be furnished to the Company Depositor by such Underwriter pursuant to Section 9(b8(b) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each Underwriter represents and warrants to the Company Depositor that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company Depositor pursuant to Section 9(b8(b) hereof did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investor, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements contained thereintherein (when read in conjunction with the Rule 159 Information), in light of the circumstances under which they were made, not misleading and misleading; provided however, that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, no Underwriter makes any representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company Depositor or any Mortgage Loan Seller to such Underwriter, the Loan Seller Information or the Transaction Party Information, which information was not corrected by information subsequently supplied by the Company, the related Depositor or any Mortgage Loan Seller or the related Transaction Party to such Underwriter within a reasonable period of time prior to the Time of Sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale)Sale.
(e) The Company Depositor agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Any Issuer Free Writing Prospectus”);
(ii) Any Free Writing Prospectus or portion thereof delivered by an Underwriter to the Company Depositor pursuant to Section 9(b8(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);hereof; and
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company Depositor or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
. Notwithstanding the foregoing, the Depositor shall not be required to file (v1) Issuer Information contained in any Underwriter Free Writing Prospectus or Free Writing Prospectus of any other offering participant other than the Depositor, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (2) any ABS Informational and Computational Material that is not being treated as a Free Writing ProspectusProspectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does not reflect the final terms thereof.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e8(e) hereof by the Company Depositor shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may be filed by the Company Depositor within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company Depositor with the Commission not later than the later of the due date for filing of the final Prospectus relating to the Certificates pursuant to Rule 424(b) under the Securities 1933 Act or two (2) business days after the date of first use of such Free Writing Prospectus; and;
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv8(e)(iii) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company Depositor for the Free Writing Prospectus or its dissemination, be filed by the Company Depositor with the Commission not later than four (4) business days after the Company Depositor becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus; and
(iv) the Depositor shall not be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Depositor, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (B) any Free Writing Prospectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does not reflect the final terms thereof.
(g) Each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission Commission, or provide to the Depositor at least two (2) business days prior to the time such filing is required, any Free Writing Prospectus (other than a Free Writing Prospectus required that is used or referred to be delivered to the Company pursuant to Section 9(b)) that by it and distributed by or on behalf of such Underwriter which is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g8(g) hereof, each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company Depositor or any other offering participant, not later than four (4) business days after such the Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g8(e) and 9(h8(g) hereof, neither the Company Depositor nor any Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company Depositor and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party it shall contain the following legend, or substantially equivalent legend that complies with Rule 433 of the 1933 Act: “The depositor "We have filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) for the offering to which this communication relates. Before you invest, you should read the prospectus in the registration statement and other documents the depositor has filed with the Securities and Exchange Commission for more complete information about the depositorus, the issuing entity trust and this offering. You may get these documents for free by visiting XXXXX EDGAR on the Securities and Exchange Commission website web site at xxx.xxx.xxxwww.sec.gxx. AlternativelyXlternatively, the depositor, Deutsche Bank Securities, Inc., any underwriter or any dealer participating deaxxx xxxxxxxpating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll free 1-800-503-4611 1.800.221.1037 or by emailing xxxxxxxxxx.xxxx@xx.xxxemail to the following address: barry.polen@csfb.com.”"
(k) The Company Depositor and the Underwriters each agree to retain xxxx xxxxx xx xxxxxx all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 8 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(li) In the event that the Company Depositor becomes awareaware that, at any time between as of the Time of Sale or Sale, any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Rule 159 Information), in light of the circumstances under which they were made, not misleading (a “"Defective Issuer Free Writing Prospectus”"), the Company Depositor shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company Depositor shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “"Corrected Issuer Free Writing Prospectus”"). .
(ii) In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any Underwriter becomes aware that that, as of the Time of Sale, any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains contained any untrue statement of a material fact or omits omitted to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Rule 159 Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “"Defective Free Writing Prospectus”"), such Underwriter shall notify the Company Depositor of such untrue statement or omission within one business day after discovery discovery.
(unless the Company was the party that informed such Underwriter of such untrue statement or omissioniii) and the The Underwriters shall, if requested by the CompanyDepositor:
(i1) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “"Corrected Free Writing Prospectus”"), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A2) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or ;
(B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x3) notify in writing each such investor in a prominent fashion that the prior contract of sale with such the investor has been terminated, and of such the investor’s 's rights as a result of termination of such agreement and agreement;
(y4) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii5) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s 's Securities Offering Reform Release No. 33-8591.
(miv) In the event that a the Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and or in the defective information was not event that any Underwriter Supplied Information, Free Writing Prospectus contains any inaccurate Issuer Information supplied by the Depositor or any Mortgage Loan Seller Information or Transaction Party Information to the related Underwriter, and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company Depositor agrees to reimburse the Underwriters for such costs; provided that, before incurring such costs, the Underwriters first permits the Depositor access to the applicable investor and an opportunity to attempt to mitigate such costs through direct negotiation with such investor.
(nv) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company Depositor that after the final Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor unless such information is preceded or accompanied by the final Prospectus.
(m) Each Underwriter covenants with the Depositor that it will make available to the Depositor, upon reasonable request, such personnel as are familiar with the Underwriter's compliance procedures for the purpose of answering questions concerning the Underwriter's practices and procedures for the preparation and dissemination of written materials concerning the Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
Appears in 1 contract
Samples: Underwriting Agreement (Credit Suisse Commercial Mortgage Trust Series 2006-C5)
Offering Communications; Free Writing Prospectuses. It is understood that the Underwriters propose to offer the Offered Certificates for sale as set forth in this Agreement, the Time of Sale Information and the Prospectus. In connection with the offering of the Offered Certificates, the Underwriters may each prepare and provide to prospective investors Free Writing Prospectuses, or portions thereof, subject to the following conditions (ato which such conditions each Underwriter agrees (provided that no Underwriter shall be responsible for any breach of the following conditions by any other Underwriter)):
(i) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of Prospectus, the Securities Act, no Underwriter Underwriters shall not convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i1) is made in reliance on Rule 134 under the Securities 1933 Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii2) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities 1933 Act, (iv3) is made in reliance on Rule 172 under the 1933 Act, (4) constitutes Time of Sale Information or a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) Prospectus that does not constitute Time of Sale Information, or (v5) constitutes such other written communication approved by the Company Depositor in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason)Depositor, no Underwriter the Underwriters shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus “computational materials” or “ABS term sheets” in reliance on the “Xxxxxx/PSA” no-action letters or any “ABS informational and computational material,” as defined in Item 1101(a) of Regulation AB under the Securities 1933 Act (“ABS Informational and Computational Material”), in reliance upon Rules 167 and 426 under the Securities 1933 Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(bii) Each Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (eachDepositor, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) business day prior to the date of first use thereof or such later date as may be agreed to by the CompanyDepositor, any Free Writing Prospectus that was prepared by or on behalf of such Underwriter (an “Underwriter Free Writing Prospectus”) and that contains any “issuer information,” as defined in Rule 433(h) under the 1933 Act and footnote 271 of the Commission’s Securities Offering Reform Release No. 33-8591 (“Issuer Information”) (which the parties hereto agree includes, without limitation, Mortgage Loan Seller Information); except that:
provided that (ia) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by Depositor no later than the later of (Ax) the date such final terms have been established for all classes of the Offered Certificates or and (By) the date of first use; and
, and (iib) any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an such Underwriter to the Company not Depositor no later than the later of (Ax) one (1) business day prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities 1933 Act or such later date as may be agreed to by the Depositor and (By) the date of first use of such Free Writing Prospectus.
(ciii) Each Underwriter represents and warrants to the Company Depositor that the Free Writing Prospectuses to be furnished to the Company Depositor by such Underwriter pursuant to Section 9(b4(ii) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such Underwriter in connection with its offer and sale of the Offered Certificates.
(div) Each Underwriter represents and warrants to the Company Depositor that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company Depositor pursuant to Section 9(b4(ii) hereof did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investorTime of Sale, and will not as of the Closing Date, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained thereintherein (when read in conjunction with the Time of Sale Information), in the light of the circumstances under which they were made, not misleading and that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Actmisleading; provided, no however, that such Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company to such UnderwriterInformation, the Mortgage Loan Seller Information, Transaction Party Information or the Transaction Party LNR Information), which information was not corrected by information Corrective Information subsequently supplied by the Company, the related Loan Seller Depositor or the related Transaction Party Mortgage Loan Seller to such Underwriter within a reasonable period of time prior to the Time of Sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale)Sale.
(ev) The Company Depositor agrees to file with the Commission the following:
(iA) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Each Issuer Free Writing Prospectus”);
(iiB) Any Free Writing Prospectus or portion thereof delivered by an any Underwriter to the Company Depositor pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed4(ii);
(iiiC) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and;
(ivD) Any Free Writing Prospectus for which the Company Depositor or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(vE) any Any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus. The Depositor is required to file such Free Writing Prospectuses with the Commission in electronic format and the Underwriters shall 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) or such other format as is acceptable to the Depositor, except to the extent that the Depositor, in its sole discretion, waives such requirements.
(fvi) Any Free Writing Prospectus required to be filed pursuant to Section 9(e4(v) hereof by the Company Depositor shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(iA) any Any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may shall be filed by the Company Depositor with the Commission within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(iiB) any Any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may shall be filed by the Company Depositor with the Commission not no later than the later of (i) the due date for filing of the final Prospectus relating to the Offered Certificates pursuant to Rule 424(b) under the Securities 1933 Act or and (ii) two (2) business days after the date of first use of such Free Writing Prospectus; and
(iiiC) any Any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv4(v)(D) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company Depositor for the Free Writing Prospectus or its dissemination, be filed by the Company Depositor with the Commission not later than four (4) business days after the Company Depositor becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(gvii) Each Underwriter (with the reasonable cooperation of the CompanyDepositor) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company Depositor pursuant to Section 9(b)4(ii) hereof) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or it and distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(hviii) Notwithstanding the provisions of Section 9(g4(vii) hereof, each Underwriter (with the reasonable cooperation of the CompanyDepositor) shall file with the Commission any Free Writing Prospectus for which such Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company Depositor or any other offering participant, not later than four (4) business days after such Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(iix) Notwithstanding the provisions of Sections 9(e4(v) (other than 9(e)(iii4(v)(C)), 9(g4(vii) and 9(h4(viii) hereof, (A) neither the Company Depositor nor any Underwriter shall be required to file (A1) any Issuer Information contained in any Underwriter Free Writing Prospectus or Free Writing Prospectus of an Underwriter or any other offering participant other than the CompanyDepositor, if such information is included (including through incorporation by reference) in a prospectus or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B2) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof thereof, or (C3) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission, and (B) no Underwriter shall be required to file any Free Writing Prospectus to the extent that the information contained therein is included in a prospectus or Free Writing Prospectus previously filed that relates to the offering of the Offered Certificates.
(jx) The Company Depositor and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party it shall contain the following legend, or substantially equivalent legend that complies with Rule 433 of the 1933 Act: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission SEC (File No. Number 333-193376180779) for the offering to which this communication free writing prospectus relates. Before you invest, you should read the prospectus in the registration statement and other documents the depositor has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity and this offering. You may get these documents for free by visiting XXXXX on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxx. Alternatively, the depositor, Deutsche Bank Securities, Inc., any underwriter or any dealer participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll free 10-800000-503000-4611 0000 or by emailing xxxxxxxxxx.xxxx@xx.xxxemail to xxxxxxxxxx@xx.xxx.”
(kxi) The Company Depositor and the Underwriters each Underwriter agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 4, and that have not been filed, for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(lxii) In (A) If the event that the Company Depositor becomes awareaware that, at any time between as of the Time of Sale or any Subsequent Time as of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in the light of the circumstances under which they were made, not misleading misleading, or conflicted or conflicts with the information contained in the Registration Statement (a “Defective Issuer Free Writing Prospectus”), the Company Depositor shall notify the Underwriters of such untrue statement or omission or conflict within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company Depositor shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement misstatement, omission or omission conflict in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company that after the Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor unless such information is preceded or accompanied by the final Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2015-C22)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities 1933 Act, no Underwriter shall convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities 1933 Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, 1933 Act or (iviii) constitutes Rule 159 Information or a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company Depositor (which consent may be withheld for any reason), no Underwriter shall prepare, convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “"ABS informational and computational material,” " as defined in Item 1101(a) of Regulation AB under the Securities 1933 Act (“"ABS Informational and Computational Material”"), in reliance upon Rules 167 and 426 under the Securities Act, 1933 Act other than materials provided to it by Credit Suisse Securities (USA) LLC or the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the CompanyDepositor.
(b) Each Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (eachDepositor, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) two business day days prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
Depositor, (i) any Free Writing Prospectus that was prepared by or on behalf of such Underwriter (an "Underwriter Free Writing Prospectus") and that contains any "issuer information," as defined in Rule 433(h) under the 1933 Act and footnote 271 of the Commission's Securities Offering Reform Release No. 33-8591 ("Issuer Information") (which the parties hereto agree includes, without limitation, Mortgage Loan Seller Information), and (ii) any Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to Certificates. Notwithstanding the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and
(ii) foregoing, any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an Underwriter to the Company Depositor not later than the later of (A) one (1) two business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities 1933 Act or such later date as may be agreed to by the Depositor or (B) the date of first use of such Free Writing Prospectus.
(c) Each Underwriter represents and warrants to the Company Depositor that the Free Writing Prospectuses to be furnished to the Company Depositor by such Underwriter pursuant to Section 9(b8(b) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each Underwriter represents and warrants to the Company Depositor that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company Depositor pursuant to Section 9(b8(b) hereof did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investor, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements contained thereintherein (when read in conjunction with the Rule 159 Information), in light of the circumstances under which they were made, not misleading and misleading; provided however, that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, no Underwriter makes any representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company Depositor or any Mortgage Loan Seller to such Underwriter, the Loan Seller Information or the Transaction Party Information, which information was not corrected by information subsequently supplied by the Company, the related Depositor or any Mortgage Loan Seller or the related Transaction Party to such Underwriter within a reasonable period of time prior to the Time of Sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale)Sale.
(e) The Company Depositor agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Any Issuer Free Writing Prospectus”);
(ii) Any Free Writing Prospectus or portion thereof delivered by an Underwriter to the Company Depositor pursuant to Section 9(b8(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);hereof; and
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company Depositor or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
. Notwithstanding the foregoing, the Depositor shall not be required to file (v1) Issuer Information contained in any Underwriter Free Writing Prospectus or Free Writing Prospectus of any other offering participant other than the Depositor, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (2) any ABS Informational and Computational Material that is not being treated as a Free Writing ProspectusProspectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does not reflect the final terms thereof.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e8(e) hereof by the Company Depositor shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may be filed by the Company Depositor within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company Depositor with the Commission not later than the later of the due date for filing of the final Prospectus relating to the Certificates pursuant to Rule 424(b) under the Securities 1933 Act or two (2) business days after the date of first use of such Free Writing Prospectus; and;
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv8(e)(iii) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company Depositor for the Free Writing Prospectus or its dissemination, be filed by the Company Depositor with the Commission not later than four (4) business days after the Company Depositor becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus; and
(iv) the Depositor shall not be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Depositor, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (B) any Free Writing Prospectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does not reflect the final terms thereof.
(g) Each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission Commission, or provide to the Depositor at least two business days prior to the time such filing is required, any Free Writing Prospectus (other than a Free Writing Prospectus required that is used or referred to be delivered to the Company pursuant to Section 9(b)) that by it and distributed by or on behalf of such Underwriter which is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g8(g) hereof, each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company Depositor or any other offering participant, not later than four (4) business days after such the Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g8(e) and 9(h8(g) hereof, neither the Company Depositor nor any Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company Depositor and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party it shall contain the following legend, or substantially equivalent legend that complies with Rule 433 of the 1933 Act: “The depositor "We have filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) for the offering to which this communication relates. Before you invest, you should read the prospectus in the registration statement and other documents the depositor has filed with the Securities and Exchange Commission for more complete information about the depositorus, the issuing entity trust and this offering. You may get these documents for free by visiting XXXXX EDGAR on the Securities and Exchange Commission website web site at xxx.xxx.xxxwww.sec.gxx. AlternativelyXlternatively, the depositor, Deutsche Bank Securities, Inc., any underwriter or any dealer participating deaxxx xxxxxxxpating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll free 1-800-503-4611 1.800.221.1037 or by emailing xxxxxxxxxx.xxxx@xx.xxxemail to the following address: barry.polen@csfb.xxx.”"
(k) The Company Depositor and the Underwriters each agree to retain xxxx xxxxx xx xxxxxx all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 8 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(li) In the event that the Company Depositor becomes awareaware that, at any time between as of the Time of Sale or Sale, any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Rule 159 Information), in light of the circumstances under which they were made, not misleading (a “"Defective Issuer Free Writing Prospectus”"), the Company Depositor shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company Depositor shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “"Corrected Issuer Free Writing Prospectus”"). .
(ii) In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any Underwriter becomes aware that that, as of the Time of Sale, any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains contained any untrue statement of a material fact or omits omitted to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Rule 159 Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “"Defective Free Writing Prospectus”"), such Underwriter shall notify the Company Depositor of such untrue statement or omission within one business day after discovery discovery.
(unless the Company was the party that informed such Underwriter of such untrue statement or omissioniii) and the The Underwriters shall, if requested by the CompanyDepositor:
(ia) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “"Corrected Free Writing Prospectus”"), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (Ab) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or ;
(B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (xc) notify in writing each such investor in a prominent fashion that the prior contract of sale with such the investor has been terminated, and of such the investor’s 's rights as a result of termination of such agreement and agreement;
(yd) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iiie) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s 's Securities Offering Reform Release No. 33-8591.
(miv) In the event that a the Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied InformationProspectus, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company Depositor agrees to reimburse the Underwriters for such costs.
(n) Each Underwriter covenants with the Company ; provided that, upon reasonable requestbefore incurring such costs, it will make available the Underwriters first permits the Depositor access to the Company applicable investor and an opportunity to attempt to mitigate such personnel as are familiar costs through direct negotiation with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investorsinvestor.
(o) Each Underwriter covenants with the Company that after the Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor unless such information is preceded or accompanied by the final Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Credit Suisse Commercial Mortgage Trust Series 2006-C1)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no the Underwriter shall not convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iviii) constitutes a “"free writing prospectus,” " as defined in Rule 405 under the Securities Act (a “"Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance"). Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no the Underwriter shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “"ABS informational and computational material,” " as defined in Item 1101(a) of Regulation AB under the Securities Act (“"ABS Informational and Computational Material”"), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(bi) Each The Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (eachCompany, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) two business day days prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
thereof, (iA) any such Free Writing Prospectus prepared by or on behalf of the Underwriter that contains any "issuer information," as defined in Rule 433(h) under the Act ("Issuer Information"), and (B) any Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; andCertificates.
(ii) Notwithstanding the provisions of Section (b)(i), any such Free Writing Prospectus described therein that contains only ABS Informational and Computational Materials may be delivered by an the Underwriter to the Company not later than the later of (Aa) one (1) two business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (Bb) the date of first use of such Free Writing Prospectus.
(c) Each The Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such the Underwriter pursuant to Section 9(b9(b)(i) hereof or (ii) will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such the Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each The Underwriter represents and warrants to the Company that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company pursuant to Section 9(b11(b)(i) hereof or (ii) did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investor, include any untrue statement of a material fact or omit to state any material fact required to be stated therein necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and misleading; provided however, that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, no Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, Underwriter which information was not corrected by information subsequently supplied by the Company, Company to the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time of Sale sale to the applicable investor of the Offered Certificates (including without limitationwhich resulted in a loss, by means claim, damage or liability arising out of a contract of sale)or based upon such misstatement or omission.
(e) The Company agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Any Free Writing Prospectus that constitutes an “"issuer free writing prospectus,” " as defined in Rule 433(h) under the Securities Act (each, an “Issuer Free Writing Prospectus”)Act;
(ii) Any Free Writing Prospectus or portion thereof delivered by an the Underwriter to the Company pursuant to Section 9(b11(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offeringhereof; and
(iviii) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e11(e) hereof by the Company shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the final Prospectus relating to the Certificates pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and;
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv11(e)(3) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus; and
(iv) the Issuer shall not be required to file (A) Issuer Information contained in any Free Writing Prospectus of an offering participant other than the Issuer, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (B) any Free Writing Prospectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does reflect the final terms thereof.
(g) Each The Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or it and distributed by or on behalf of such the Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g) hereof11(g), each the Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such the Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such the Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g11(e) and 9(h) hereof11(g), neither the Company Issuer nor any the Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriters Underwriter each agree that any Free Writing Prospectuses prepared by each such party it shall contain the following legend: “The depositor issuer has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in the that registration statement and other documents the depositor issuer has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity issuer and this offering. You may get these documents for free by visiting XXXXX EDGAR on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxxwww.sec.gov. Alternatively, the depositor, Deutsche Bank Securities, Inc.xxx xssuer, any underwriter or any dealer ox xxx xxxxxr participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll toll-free 1-800-503294-4611 or by emailing xxxxxxxxxx.xxxx@xx.xxx1322.”
(k) The Company and the Underwriters each Underwriter agree to retain all Free rxxxxx xxx Xxxx Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(l) In the event that the Company becomes aware, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Issuer Free Writing Prospectus”), the Company shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company that after the Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor unless such information is preceded or accompanied by the final Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Banc of America Alternative Loan Trust 2006-1)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no Underwriter shall convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iv) constitutes a “"free writing prospectus,” " as defined in Rule 405 under the Securities Act (a “"Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance"). Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no Underwriter shall prepare, convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “"ABS informational and computational material,” " as defined in Item 1101(a) of Regulation AB under the Securities Act (“"ABS Informational and Computational Material”" and together with any Free Writing Prospectus "Disclosure Information"), in reliance upon Rules 167 and 426 under the Securities Act, Act other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP)Prospectuses; provided provided, that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(b) Each Underwriter shall deliver to the Company Company:
(i) any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (each, an “"Underwriter Free Writing Prospectus”") that contains any Issuer Information by no later than one two (12) business day days prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:and
(iii) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and
(ii) . Notwithstanding the foregoing, any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an Underwriter to the Company not later than the later of (A) one (1) two business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (B) the date of first use of such Free Writing Prospectus.
(c) Each Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such Underwriter pursuant to Section 9(b) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each Underwriter represents and warrants to the Company that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company pursuant to Section 9(b) hereof hereof, when used in conjunction with any information delivered prior to the Time of Sale, did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investor, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and that each such Free Writing Prospectus complied with Rules 164 164, 167, 426 and 433 433, as applicable, under the Securities Act; provided, however, that no Underwriter makes any representation or warranty to the extent such misstatements or omissions are based upon or arise out of an untrue statement or omission in the Issuer Information supplied by the Company to such Underwriter, the Mortgage Loan Seller Information or the Transaction Party Information, which information was not corrected by information subsequently supplied by the Company, the related Mortgage Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time of Sale sale to the applicable such investor of the Offered Certificates (including without limitation, by means of a contract of sale).
(e) The Company agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Any Free Writing Prospectus that constitutes an “"issuer free writing prospectus,” " as defined in Rule 433(h) under the Securities Act (each, an “"Issuer Free Writing Prospectus”");
(ii) Any Free Writing Prospectus or portion thereof delivered by an Underwriter to the Company pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e) hereof by the Company shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(g) Each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g) hereof, each Underwriter (with the reasonable cooperation of the Company, including, without limitation, providing any "CIK" and "CCC" information) shall file with the Commission any Free Writing Prospectus for which such Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g) and 9(h9(g) hereof, neither the Company nor any Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party shall contain the following legend: “"The depositor filed a registration statement (including a prospectus) with the Securities and Exchange Commission (SEC File No. 333-193376140740) for the offering to which this communication relates. Before you invest, you should read the prospectus in the registration statement and other documents the depositor has filed with the Securities and Exchange Commission for more complete information about the depositor, the issuing entity and this offering. You may get these documents for free by visiting XXXXX EDGAR on the Securities and Exchange Commission website Exchangx Xxxmission web site at xxx.xxx.xxxwww.sec.gov. Alternatively, the depositordepxxxxxx, Deutsche Bank Securities, Inc., any xxx underwriter or any dealer participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll free 1-800-503-4611 or by emailing xxxxxxxxxx.xxxx@xx.xxx1.800.745.2063.”
(k) The Company and Thx Xxxxxxx xxx the Underwriters each agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(l) In the event that the Company becomes aware, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “"Defective Issuer Free Writing Prospectus”"), the Company shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company Issuer of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “"Corrected Issuer Free Writing Prospectus”"). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “"Defective Underwriter Free Writing Prospectus” " and, together with a Defective Issuer Free Writing Prospectus, a “"Defective Free Writing Prospectus”"), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the and:
(i) The Underwriters shall, if requested by the Company:
(iA) if If the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “"Corrected Free Writing Prospectus”"), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company Issuer shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(iiB) either Either (Ai) deliver the Corrected Free Writing Prospectus to each investor which that received the Defective Free Writing Prospectus from such Underwriter prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (Bii) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus from such Underwriter and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s 's rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iiiC) comply Comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s 's Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Mortgage Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) . Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s 's compliance procedures for the purpose of answering questions concerning the Underwriter’s 's practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(on) Each Underwriter covenants with the Company that after the final Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor unless such information is preceded or accompanied by the final Prospectus.
(o) Each Underwriter further represents and warrants that it has offered and sold Offered Certificates only to, or directed at, persons who (i) are outside the United Kingdom;
(ii) have professional experience in participating in unregulated collective investment schemes; or (iii) are persons falling within Article 22(2)(a) through (d) of the Financial Services and Markets Act 2000 (Promotion of Collective Investment Schemes) (Exemptions) Order 2001.
Appears in 1 contract
Samples: Underwriting Agreement (COBALT CMBS Commercial Mortgage Trust 2007-C3)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no the Underwriter shall not convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iviii) constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no the Underwriter shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “"ABS informational and computational material,” " as defined in Item 1101(a) of Regulation AB under the Securities Act (“"ABS Informational and Computational Material”"), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(bi) Each The Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (eachCompany, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) two business day days prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
thereof, (iA) any such Free Writing Prospectus prepared by or on behalf of the Underwriter that contains any "issuer information," as defined in Rule 433(h) under the Act ("Issuer Information"), and (B) any Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; andCertificates.
(ii) Notwithstanding the provisions of Section 12(b)(i), any such Free Writing Prospectus described therein that contains only ABS Informational and Computational Materials Material, may be delivered by an the Underwriter to the Company not later than the later of (Aa) one (1) two business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (Bb) the date of first use of such Free Writing Prospectus.
(c) Each The Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such the Underwriter pursuant to Section 9(b12(b)(i) hereof or (ii) will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such the Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each The Underwriter represents and warrants to the Company that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company pursuant to Section 9(b12(b)(i) hereof or (ii) did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investor, include any untrue statement of a material fact or omit to state any material fact required to be stated therein necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Actmisleading; provided, no however, that the Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, Underwriter which information was not corrected by information subsequently supplied by the Company, Company to the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time of Sale sale to the applicable investor of the Offered Certificates (including without limitationwhich resulted in a loss, by means claim, damage or liability arising out of a contract of sale)based upon such misstatement or omission.
(e) The Company agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Any Free Writing Prospectus that constitutes an “"issuer free writing prospectus,” " as defined in Rule 433(h) under the Securities Act (each, an “"Issuer Free Writing Prospectus”");
(ii) Any Free Writing Prospectus or portion thereof delivered by an the Underwriter to the Company pursuant to Section 9(b12(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offeringhereof; and
(iviii) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e12(e) hereof by the Company shall may be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the Final Prospectus relating to the Certificates pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and;
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv12(e)(iii) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus; and
(iv) the Company shall not be required to file (A) Issuer Information contained in any Free Writing Prospectus of an offering participant other than the Issuer, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (B) any Free Writing Prospectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does reflect the final terms thereof.
(g) Each The Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or it and distributed by or on behalf of such the Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g) hereof12(g), each the Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such the Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such the Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g12(e) and 9(h) hereof12(g), neither the Company nor any the Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriters Underwriter each agree that any Free Writing Prospectuses prepared by each such party the Underwriter shall contain the following legendlegend and any other legend that the Underwriter shall deem necessary or appropriate: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in the that registration statement and other documents the depositor has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity and this offering. You may get these documents for free by visiting XXXXX EDGAR on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxxwww.sec.gov. Alternatively, the depositor, Deutsche Bank Securities, Inc.xxx xepositor, any underwriter or any dealer participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll toll-free 1-800-503294-4611 1322 or you e-mail a request to dg.prospectus_distribution@bofasecurities.com. The securitxxx xxx xxx xx xxxxxxxx xxx xxx investors. Banc of America Securities LLC and its affiliates may acquire, hold or sell positions in these securities, or in related derivatives, and may have an investment or commercial banking relationship with the depositor. The asset-backed securities referred to in these materials, and the asset pools backing them, are subject to modification or revision (including the possibility that one or more classes of securities may be split, combined or eliminated at any time prior to issuance or availability of a final prospectus) and are offered on a "when, as and if issued" basis. You understand that, when you are considering the purchase of these securities, a contract of sale will come into being no sooner than the date on which the relevant class has been priced and we have confirmed the allocation of securities to be made to you; any "indications of interest" expressed by emailing xxxxxxxxxx.xxxx@xx.xxxyou, and any "soft circles" generated by us, will not create binding contractual obligations for you or us. Because the asset-backed securities are being offered on a "when, as and if issued" basis, any such contract of sale will terminate, by its terms, without any further obligation or liability between us, if the securities themselves, or the particular class to which the contract relates, are not issued. Because the asset-backed securities are subject to modification or revision, any such contract also is conditioned upon the understanding that no material change will occur with respect to the relevant class of securities prior to the closing date. If a material change does occur with respect to such class, our contract will terminate, by its terms, without any further obligation or liability between us (the "Automatic Termination"). If an Automatic Termination occurs, we will provide you with revised offering materials reflecting the material change and give you an opportunity to purchase such class. To indicate your interest in purchasing the class, you must communicate to us your desire to do so within such timeframe as may be designated in connection with your receipt of the revised offering materials. The information contained in these materials may be based on assumptions regarding market conditions and other matters as reflected herein. Banc of America Securities LLC (the "Underwriter") makes no representation regarding the reasonableness of such assumptions or the likelihood that any such assumptions will coincide with actual market conditions or events, and these materials should not be relied upon for such purposes. The Underwriter and its affiliates, officers, directors, partners and employees, including persons involved in the preparation or issuance of these materials, may, from time to time, have long or short positions in, and buy and sell, the securities mentioned herein or derivatives thereof (including options). Information in these materials is current as of the date appearing on the material only. Information in these materials regarding any securities discussed herein supersedes all prior information regarding such securities. These materials are not to be construed as an offer to sell or the solicitation of any offer to buy any security in any jurisdiction where such an offer or solicitation would be illegal. This free writing prospectus is being delivered to you solely to provide you with information about the offering of the securities referred to in this free writing prospectus and to solicit an offer to purchase the securities, 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 securities until we have accepted your offer to purchase securities. You may withdraw your offer to purchase securities at any time prior to our acceptance of your offer. The information in this free writing prospectus supersedes information contained in any prior similar free writing prospectus relating to these securities prior to the time of your commitment to purchase. This free writing prospectus is not an offer to sell or solicitation of an offer to buy these securities in any state where such offer, solicitation or sale is not permitted. The Company and the Underwriter each agree that any Free Writing Prospectus prepared by the Underwriter and that is not an Issuer Free Writing Prospectus or that does not contain Issuer Information shall also contain the following legend: Neither the issuer of the securities nor any of its affiliates prepared, provided, approved or verified any statistical or numerical information presented herein, although that information may be based in part on loan level data provided by the issuer or its affiliates.”
(k) The Company and the Underwriters each Underwriter agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 12 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(l) In the event that the Company becomes aware, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Issuer Free Writing Prospectus”), the Company shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each The Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company Depositor that after the final Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor purchaser of Offered Certificates unless such information is preceded or accompanied by the final Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Banc of America Funding 2007-5 Trust)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no Underwriter shall convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i1) is made in reliance on Rule 134 under the Securities Act, (ii2) is made in reliance on Rule 172 under the Securities Act, (iii3) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iv4) constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no Underwriter The Underwriters shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “ABS informational and computational material,” as defined in Item 1101(a) of Regulation AB under the Securities Act (“ABS Informational and Computational Material”), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(b) Each Underwriter shall deliver to the Company Depositor, no later than two business days prior to the date of first use thereof, (a) any Underwriter Free Writing Prospectus prepared by or on behalf of such Underwriter that contains any “issuer information”, as defined in Rule 433(h) under the Securities Act1 (“Issuer Information”) (which the parties hereto agree includes, without limitation, the Sellers’ Information) and (b) any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (each, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) business day prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
(i) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to Certificates. Notwithstanding the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and
(ii) foregoing, any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an Underwriter the Underwriters to the Company Depositor not later than the later of (Aa) one (1) two business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (Bb) the date of first use of such Free Writing Prospectus.
(c) Each Underwriter represents and warrants to the Company Depositor that the Free Writing Prospectuses to be furnished to the Company Depositor by such the Underwriter pursuant to Section 9(b8(b) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors purchasers of Offered Certificates by such the Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each Underwriter represents and warrants to the Company Depositor that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company Depositor pursuant to Section 9(b) hereof 8(b), when read together with all other Time of Sale Information, did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investorTime of Sale, and will not as of the Closing Date, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and misleading; provided however, that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, no Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, which information was not corrected by information Corrective Information subsequently supplied by the Company, Depositor or any Seller to the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time of Sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale)Sale.
(e) The Company Depositor agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Any Issuer Free Writing Prospectus”);
(ii) Any Free Writing Prospectus or portion thereof delivered by an the Underwriter to the Company Depositor pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed8(b);; and
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company Depositor or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e8(e) hereof by the Company Depositor shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may shall be filed by the Company Depositor with the Commission within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may shall be filed by the Company Depositor with the Commission not later than the later of the due date for filing of the final Prospectus relating to the Offered Certificates pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and;
(iii) any Any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv8(e)(iii) hereof mayshall, if no payment has been made or consideration has been given by or on behalf of the Company Depositor for the Free Writing Prospectus or its dissemination, be filed by the Company Depositor with the Commission not later than four (4) business days after the Company Depositor becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus; and
(iv) The Depositor shall not be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any other offering participant other than the Depositor, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (B) any Free Writing Prospectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does not reflect the final terms thereof.
(g) Each Underwriter (with shall provide to the reasonable cooperation of the Company) shall file with the Commission Depositor any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or it and distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing ProspectusProspectus and the Depositor shall file such Free Writing Prospectus with the Commission.
(h) Notwithstanding the provisions of Section 9(g) hereof8(g), each Underwriter (with shall provide to the reasonable cooperation of the Company) Depositor, who shall then file with the Commission Commission, any Free Writing Prospectus for which such the Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company Depositor or any other offering participant, not later than four (4) business days after such the Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g8(e) and 9(h) hereof8(g), neither the Company Depositor nor any Underwriter the Underwriters shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company Depositor and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party it shall contain a legend substantially in the following legendform: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in the that registration statement and other documents the depositor has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity trust and this offering. You may get these documents for free by visiting XXXXX EXXXX on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxxwxx.xxx.xxx. Alternatively, the depositor, Deutsche Bank Securities, Inc., any underwriter or any dealer participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll free 1-800000-503000-4611 0000 or by emailing xxxxxxxxxx.xxxx@xx.xxx.”
(k) The Company and the Underwriters each agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 for a period of three (3) years following the initial bona fide offering of the Offered Certificatescxxx-xxxxxxxxxx@xxxxxxxx.xxx.
(l1) In the event that the Company Depositor becomes awareaware that, at any time between as of the Time of Sale or Sale, any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains contained any untrue statement of a material fact or omits omitted to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information)therein, in light of the circumstances under which they were made, not misleading misleading, when read in conjunction with the Time of Sale Information (such Issuer Free Writing Prospectus a “Defective Issuer Free Writing Prospectus”), the Company Depositor shall notify the Underwriters of such untrue statement or omission thereof within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company Depositor shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In ) and (2) in the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any Underwriter becomes aware that that, as of the Time of Sale, any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains contained any untrue statement of a material fact or omits omitted to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information)therein, in the light of the circumstances under which they were made, not misleading misleading, when read in conjunction with the Time of Sale Information (such Underwriter Free Writing Prospectus, a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission Depositor thereof within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the CompanyDepositor:
(iA) if If the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus with Corrective Information that corrects the material misstatement in or omission from the Defective Underwriter Free Writing Prospectus (such corrected Underwriter Free Writing Prospectus, a “Corrected Underwriter Free Writing Prospectus” and, together with a the Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(iiB) either (A) deliver Deliver the Corrected Free Writing Prospectus to each investor purchaser of an Offered Certificate which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or purchaser;
(BC) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each Notify such investor purchaser in a prominent prompt fashion that the any prior contract of sale with such investor purchaser has been terminated, and of such investorpurchaser’s rights as a result of termination of such agreement and agreement;
(yD) provide Provide such investor purchaser with an opportunity to affirmatively agree in writing to purchase the Offered Certificates enter into a new contract of sale on the terms described in the Corrected Free Writing Prospectus; and
(iiiE) comply Comply with any other requirements for reformation of the original contract of sale with such investorsale, as described in Section IV.A.2.c IV.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(nl) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company Depositor that after the final Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates that contains Issuer Information to a prospective investor purchaser of Offered Certificates unless such information is preceded or accompanied by the final Prospectus.
(m) The Depositor and each Underwriter agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 8 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
Appears in 1 contract
Samples: Underwriting Agreement (J.P. Morgan Chase Commercial Mortgage Securities Trust 2012-C6)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no Underwriter shall convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iviii) constitutes a “"free writing prospectus,” " as defined in Rule 405 under the Securities Act (a “"Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance"). Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no Underwriter shall prepare, convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “"ABS informational and computational material,” " as defined in Item 1101(a) of Regulation AB under the Securities Act (“"ABS Informational and Computational Material”"), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(bi) Each Underwriter shall deliver to the Company Company, no later than two business days prior to the date of first use thereof, (A) any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (each, an “Underwriter Free Writing Prospectus”) that contains any "issuer information," as defined in Rule 433(h) under the Act and footnote 271 of the Commission's Securities Offering Reform Release No. 33-8591 ("Issuer Information by no later than one Information"), and (1) business day prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
(iB) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; andCertificates.
(ii) Notwithstanding the provisions of Section 11(b)(i), any such Free Writing Prospectus described therein that contains only ABS Informational and Computational Materials Material, may be delivered by an any Underwriter to the Company not later than the later of (Aa) one (1) two business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (Bb) the date of first use of such Free Writing Prospectus.
(c) Each Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such Underwriter pursuant to Section 9(b11(b)(i) hereof or (ii) will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each Underwriter represents and warrants to the Company that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company pursuant to Section 9(b) hereof 11(b), when read in conjunction with the Time of Sale Information, did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investorTime of Sale, include any untrue statement of a material fact or omit to state any material fact required to be stated therein necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and misleading; provided however, that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, no Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, Underwriter which information was not corrected by information Corrective Information subsequently supplied by the Company, the related Loan Seller or the related Transaction Party Company to such each Underwriter within a reasonable period of time prior to the Time of Sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale)Sale.
(e) The Company agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Any Free Writing Prospectus that constitutes an “"issuer free writing prospectus,” " as defined in Rule 433(h) under the Securities Act (each, an “"Issuer Free Writing Prospectus”");
(ii) Any Free Writing Prospectus or portion thereof delivered by an any Underwriter to the Company pursuant to Section 9(b12(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offeringhereof; and
(iviii) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e11(e) hereof by the Company shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the final Prospectus relating to the Certificates pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and;
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv11(e)(iii) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus; and
(iv) the Company shall not be required to file (A) Issuer Information contained in any Free Writing Prospectus of an offering participant other than the Issuer, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (B) any Free Writing Prospectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does reflect the final terms thereof.
(g) Each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or it and distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g) hereof11(g), each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g11(e) and 9(h) hereof11(g), neither the Company nor any Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriters each Underwriter each agree that any Free Writing Prospectuses prepared by each such party Underwriter shall contain the following legend and any other legend: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in the that registration statement and other documents the depositor has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity issuer and this offering. You may get these documents for free by visiting XXXXX on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxx. Alternatively, the depositor, Deutsche Bank Securities, Inc., any underwriter or any dealer participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll toll-free 1-800xxx-503xxx-4611 xxxx or you e-mail a request to [____________]. The Company and each Underwriter each agree that any Free Writing Prospectus prepared by emailing xxxxxxxxxx.xxxx@xx.xxxsuch Underwriter and that is not an Issuer Free Writing Prospectus or that does not contain Issuer Information shall also contain the following legend: Neither the issuer of the securities nor any of its affiliates prepared, provided, approved or verified any statistical or numerical information presented herein, although that information may be based in part on loan level data provided by the issuer or its affiliates.”
(k) The Company and the Underwriters each agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(l) In the event that the Company becomes awareaware that, at any time between as of the Time of Sale or Sale, any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “"Defective Issuer Free Writing Prospectus”"), the Company shall notify the Underwriters of such untrue statement or omission each Underwriter within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company shall, if requested by the Underwriterssuch Underwriter, prepare and deliver to the Underwriters such Underwriter a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “"Corrected Issuer Free Writing Prospectus”"). .
(l) In the event that any Underwriter become aware that, at any time between as of the Time of Sale or any Subsequent Time of Sale and the Closing DateSale, any Underwriter becomes aware that any Underwriter Free Writing Prospectus prepared by or on behalf of such Underwriter delivered thereby to an investor in any Offered Certificates contains contained any untrue statement of a material fact or omits omitted to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading misleading, when considered in conjunction with the Time of Sale Information (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “"Defective Free Writing Prospectus”"), such Underwriter shall notify the Company of such untrue statement or omission thereof within one business day after discovery discovery.
(unless the Company was the party that informed such m) Each Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:;
(i) if the Defective Free Writing Prospectus was an Underwriter a Free Writing ProspectusProspectus prepared by or on behalf of such Underwriter, prepare a Free Writing Prospectus that which corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “"Corrected Free Writing Prospectus”"), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or ;
(B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (xiii) notify in writing each such investor in a prominent fashion that the prior contract of sale with such the investor has been terminated, and of such the investor’s 's rights as a result of termination of such agreement and agreement;
(yiv) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iiiv) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s 's Securities Offering Reform Release No. 33-8591.
(mn) In the event that a Defective The Company and each Underwriter agree to retain all Free Writing Prospectus was an Issuer Free Writing Prospectus Prospectuses that they have used and that are not required to be filed pursuant to this Section 11 for a period of three years following the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation initial bona fide offering of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investorsCertificates.
(o) Each Underwriter covenants with the Company that after the final Prospectus is available the such Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor purchaser of Offered Certificates unless such information is preceded or accompanied by the final Final Prospectus.
Appears in 1 contract
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities 1933 Act, no Underwriter shall convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i1) is made in reliance on Rule 134 under the Securities 1933 Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii2) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities 1933 Act, or (iv3) constitutes Time of Sale Information or a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advanceProspectus that does not constitute Time of Sale Information. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no The Underwriter shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “"ABS informational and computational material,” " as defined in Item 1101(a) of Regulation AB under the Securities 1933 Act (“"ABS Informational and Computational Material”"), in reliance upon Rules 167 and 426 under the Securities 1933 Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(b) Each Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (eachCompany, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) business day prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
thereof, (ia) any such Free Writing Prospectus prepared by or on behalf of the Underwriter that contains any Issuer Information or Mortgage Loan Seller Information, and (b) any Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to Certificates. Notwithstanding the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and
(ii) foregoing, any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an the Underwriter to the Company not later than the later of (Aa) one (1) business day prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities 1933 Act or (Bb) the date of first use of such Free Writing Prospectus.
(c) Each Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such the Underwriter pursuant to Section 9(b10(b) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors purchasers of Offered Certificates by such the Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each Underwriter represents and warrants to the Company that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company pursuant to Section 9(b10(b) hereof did hereof, when viewed together with all other Time of Sale Information, does not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investorTime of Sale, and will not as of the Closing Date, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and misleading; provided however, that each the Underwriter makes no representation with respect to any such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, no Underwriter makes that is misleading or inaccurate as a result of any representation misleading or warranty to the extent such misstatements inaccurate Issuer Information or omissions are based upon or arise out of an untrue statement or omission in the Issuer Mortgage Loan Seller Information supplied by the Company or any Seller to such the Underwriter, the Loan Seller Information or the Transaction Party Information, which information was not corrected by information Corrective Information subsequently supplied by the Company, Company or any Seller to the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time of Sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale)Sale.
(e) The Company agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Any Issuer Free Writing Prospectus”);
(ii) Any Free Writing Prospectus or portion thereof delivered by an the Underwriter to the Company pursuant to Section 9(b10(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offeringhereof; and
(iviii) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e10(b) hereof by the Company shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may shall be filed by the Company with the Commission within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may shall be filed by the Company with the Commission not later than the later of the due date for filing of the final Prospectus relating to the Offered Certificates pursuant to Rule 424(b) under the Securities 1933 Act or two (2) business days after the date of first use of such Free Writing Prospectus; and;
(iii) any Any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv10(e)(iii) hereof mayshall, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus; and
(iv) The Company shall not be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any other offering participant other than the Company, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (B) any Free Writing Prospectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does not reflect the final terms thereof.
(g) Each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or and distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus. Each Underwriter shall deliver such Free Writing Prospectus to the Company, not later than one business day prior to filing of such Free Writing Prospectus with the Commission.
(h) Notwithstanding the provisions of Section 9(g) hereof10(g), each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such the Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such the Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of the Free Writing Prospectus. Each Underwriter shall deliver such Free Writing ProspectusProspectus to the Company, not later than one business day prior to filing of such Free Writing Prospectus with the Commission.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g10(e) and 9(h) hereof10(g), neither the Company Issuer nor any the Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party it shall contain substantially the following legend: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in the that registration statement and other documents the depositor has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity trust and this offering. You may get these documents for free by visiting XXXXX EDGAR on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxxwww.sec.gov. Alternatively, the depositor, Deutsche Bank Securities, Inc.xxx xepositor, any underwriter or any dealer xxaler participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll toll-free 1-800888-503294-4611 1322 or by emailing xxxxxxxxxx.xxxx@xx.xxxa request to dg.prospectus_disxxxxxxxxx@xxxxsecurities.com.”
(k) The Company and the Underwriters each agree to retain all Free Writing Prospectuses Underwrxxxxx xxxx xxxxx xx xxxxxx xxx Xxxx Xxxxxxx Xrospectuses that they have used and that are not required to be filed pursuant to this Section 9 10 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(li) In the event that the Company any Underwriter becomes awareaware that, at any time between as of the Time of Sale or Sale, any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus prepared by or any Issuer Information contains on behalf of the Underwriter and delivered to a purchaser of an Offered Certificate contained any untrue statement of a material fact or omits omitted to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information)therein, in the light of the circumstances under which they were made, not misleading (a “Defective Issuer such Free Writing Prospectus”, a "Defective Free Writing Prospectus"), the Company Underwriter shall notify the Underwriters of such untrue statement or omission Company thereof within one business day after discovery discovery.
(except for any Underwriter ii) Provided that informed if the Company of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Defective Free Writing Prospectus that corrects the material misstatement or omission in the Defective was an Issuer Free Writing Prospectus (such corrected or contained Issuer Free Writing ProspectusInformation, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(iA) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare Prepare a Free Writing Prospectus with Corrective Information that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer such corrected Free Writing Prospectus, a “"Corrected Free Writing Prospectus”"), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(iiB) either (A) deliver Deliver the Corrected Free Writing Prospectus to each investor purchaser of an Offered Certificate which received the Defective Free Writing Prospectus prior to entering into a contract of sale with an agreement to purchase any Offered Certificates;
(C) Notify such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor purchaser in a prominent fashion that the prior contract of sale with such investor agreement to purchase Offered Certificates has been terminated, and of such investor’s purchaser's rights as a result of termination of such agreement and agreement; and
(yD) provide Provide such investor purchaser with an opportunity to affirmatively agree in writing to purchase the such Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company that after the Final Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor purchaser of Offered Certificates unless such information is preceded or accompanied by the final Final Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Ge Commercial Mortgage Corp)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no the Underwriter shall not convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iviii) constitutes a “"free writing prospectus,” " as defined in Rule 405 under the Securities Act (a “"Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance"). Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no the Underwriter shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “"ABS informational and computational material,” " as defined in Item 1101(a) of Regulation AB under the Securities Act (“"ABS Informational and Computational Material”"), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(bi) Each The Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (eachCompany, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) two business day days prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
thereof, (iA) any such Free Writing Prospectus prepared by or on behalf of the Underwriter that contains any "issuer information," as defined in Rule 433(h) under the Act ("Issuer Information"), and (B) any Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; andCertificates.
(ii) Notwithstanding the provisions of Section (b)(i), any such Free Writing Prospectus described therein that contains only ABS Informational and Computational Materials may be delivered by an the Underwriter to the Company not later than the later of (Aa) one (1) two business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (Bb) the date of first use of such Free Writing Prospectus.
(c) Each The Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such the Underwriter pursuant to Section 9(b9(b)(i) hereof or (ii) will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such the Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each The Underwriter represents and warrants to the Company that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company pursuant to Section 9(b11(b)(i) hereof or (ii) did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investor, include any untrue statement of a material fact or omit to state any material fact required to be stated therein necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and misleading; provided however, that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, no Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, Underwriter which information was not corrected by information subsequently supplied by the Company, Company to the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time of Sale sale to the applicable investor of the Offered Certificates (including without limitationwhich resulted in a loss, by means claim, damage or liability arising out of a contract of sale)or based upon such misstatement or omission.
(e) The Company agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Any Free Writing Prospectus that constitutes an “"issuer free writing prospectus,” " as defined in Rule 433(h) under the Securities Act (each, an “Issuer Free Writing Prospectus”)Act;
(ii) Any Free Writing Prospectus or portion thereof delivered by an the Underwriter to the Company pursuant to Section 9(b11(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offeringhereof; and
(iviii) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e11(e) hereof by the Company shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the final Prospectus relating to the Certificates pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and;
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv11(e)(3) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus; and
(iv) the Issuer shall not be required to file (A) Issuer Information contained in any Free Writing Prospectus of an offering participant other than the Issuer, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (B) any Free Writing Prospectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does reflect the final terms thereof.
(g) Each The Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or it and distributed by or on behalf of such the Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g) hereof11(g), each the Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such the Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such the Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g11(e) and 9(h) hereof11(g), neither the Company Issuer nor any the Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriters Underwriter each agree that any Free Writing Prospectuses prepared by each such party it shall contain the following legend: “The depositor issuer has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in the that registration statement and other documents the depositor issuer has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity issuer and this offering. You may get these documents for free by visiting XXXXX EDGAR on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxxwww.sec.gov. Alternatively, the depositor, Deutsche Bank Securities, Inc.xxx xssuer, any underwriter or any dealer ox xxx xxxxxr participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll toll-free 1-8008[xx-503xxx-4611 or by emailing xxxxxxxxxx.xxxx@xx.xxxxxxx].”
(k) The Company and the Underwriters each Underwriter agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 11 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(l) In the event that the Company becomes aware, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Issuer Free Writing Prospectus”), the Company shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company that after the Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor unless such information is preceded or accompanied by the final Prospectus.
Appears in 1 contract
Samples: Subordinate Underwriting Agreement (Banc of America Mortgage 2006-a Trust)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no the Underwriter shall not convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iviii) constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no the Underwriter shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “"ABS informational and computational material,” " as defined in Item 1101(a) of Regulation AB under the Securities Act (“"ABS Informational and Computational Material”"), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(bi) Each The Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (eachCompany, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) two business day days prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
thereof, (iA) any such Free Writing Prospectus prepared by or on behalf of the Underwriter that contains any "issuer information," as defined in Rule 433(h) under the Act ("Issuer Information"), and (B) any Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; andCertificates.
(ii) Notwithstanding the provisions of Section 12(b)(i), any such Free Writing Prospectus described therein that contains only ABS Informational and Computational Materials Material, may be delivered by an the Underwriter to the Company not later than the later of (Aa) one (1) two business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (Bb) the date of first use of such Free Writing Prospectus.
(c) Each The Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such the Underwriter pursuant to Section 9(b12(b)(i) hereof or (ii) will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such the Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each The Underwriter represents and warrants to the Company that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company pursuant to Section 9(b12(b)(i) hereof or (ii) did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investor, include any untrue statement of a material fact or omit to state any material fact required to be stated therein necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Actmisleading; provided, no however, that the Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, Underwriter which information was not corrected by information subsequently supplied by the Company, Company to the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time of Sale sale to the applicable investor of the Offered Certificates (including without limitationwhich resulted in a loss, by means claim, damage or liability arising out of a contract of sale)based upon such misstatement or omission.
(e) The Company agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Any Free Writing Prospectus that constitutes an “"issuer free writing prospectus,” " as defined in Rule 433(h) under the Securities Act (each, an “"Issuer Free Writing Prospectus”");
(ii) Any Free Writing Prospectus or portion thereof delivered by an the Underwriter to the Company pursuant to Section 9(b12(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offeringhereof; and
(iviii) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e12(e) hereof by the Company shall may be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the Final Prospectus relating to the Certificates pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and;
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv12(e)(iii) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus; and
(iv) the Company shall not be required to file (A) Issuer Information contained in any Free Writing Prospectus of an offering participant other than the Issuer, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (B) any Free Writing Prospectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does reflect the final terms thereof.
(g) Each The Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or it and distributed by or on behalf of such the Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g) hereof12(g), each the Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such the Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such the Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g12(e) and 9(h) hereof12(g), neither the Company nor any the Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriters Underwriter each agree that any Free Writing Prospectuses prepared by each such party the Underwriter shall contain the following legendlegend and any other legend that the Underwriter shall deem necessary or appropriate: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in the that registration statement and other documents the depositor has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity and this offering. You may get these documents for free by visiting XXXXX EDGAR on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxxwww.sec.gov. Alternatively, the xxx depositor, Deutsche Bank Securities, Inc., any underwriter or any underwxxxxx xx xxy dealer participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll toll-free 1-800-503294-4611 1322 or you e-mail a request to dg.prospxxxxx_xxxxxxxxtion@bofasecurities.com. The securities may xxx xx xxxxxxxx xxx xxx xxxxxxxxx. Banc of America Securities LLC and its affiliates may acquire, hold or sell positions in these securities, or in related derivatives, and may have an investment or commercial banking relationship with the depositor. The asset-backed securities referred to in these materials, and the asset pools backing them, are subject to modification or revision (including the possibility that one or more classes of securities may be split, combined or eliminated at any time prior to issuance or availability of a final prospectus) and are offered on a "when, as and if issued" basis. You understand that, when you are considering the purchase of these securities, a contract of sale will come into being no sooner than the date on which the relevant class has been priced and we have confirmed the allocation of securities to be made to you; any "indications of interest" expressed by emailing xxxxxxxxxx.xxxx@xx.xxxyou, and any "soft circles" generated by us, will not create binding contractual obligations for you or us. Because the asset-backed securities are being offered on a "when, as and if issued" basis, any such contract of sale will terminate, by its terms, without any further obligation or liability between us, if the securities themselves, or the particular class to which the contract relates, are not issued. Because the asset-backed securities are subject to modification or revision, any such contract also is conditioned upon the understanding that no material change will occur with respect to the relevant class of securities prior to the closing date. If a material change does occur with respect to such class, our contract will terminate, by its terms, without any further obligation or liability between us (the "Automatic Termination"). If an Automatic Termination occurs, we will provide you with revised offering materials reflecting the material change and give you an opportunity to purchase such class. To indicate your interest in purchasing the class, you must communicate to us your desire to do so within such timeframe as may be designated in connection with your receipt of the revised offering materials. The information contained in these materials may be based on assumptions regarding market conditions and other matters as reflected herein. Banc of America Securities LLC (the "Underwriter") makes no representation regarding the reasonableness of such assumptions or the likelihood that any such assumptions will coincide with actual market conditions or events, and these materials should not be relied upon for such purposes. The Underwriter and its affiliates, officers, directors, partners and employees, including persons involved in the preparation or issuance of these materials, may, from time to time, have long or short positions in, and buy and sell, the securities mentioned herein or derivatives thereof (including options). Information in these materials is current as of the date appearing on the material only. Information in these materials regarding any securities discussed herein supersedes all prior information regarding such securities. These materials are not to be construed as an offer to sell or the solicitation of any offer to buy any security in any jurisdiction where such an offer or solicitation would be illegal. This free writing prospectus is being delivered to you solely to provide you with information about the offering of the securities referred to in this free writing prospectus and to solicit an offer to purchase the securities, 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 securities until we have accepted your offer to purchase securities. You may withdraw your offer to purchase securities at any time prior to our acceptance of your offer. The information in this free writing prospectus supersedes information contained in any prior similar free writing prospectus relating to these securities prior to the time of your commitment to purchase. This free writing prospectus is not an offer to sell or solicitation of an offer to buy these securities in any state where such offer, solicitation or sale is not permitted. The Company and the Underwriter each agree that any Free Writing Prospectus prepared by the Underwriter and that is not an Issuer Free Writing Prospectus or that does not contain Issuer Information shall also contain the following legend: Neither the issuer of the securities nor any of its affiliates prepared, provided, approved or verified any statistical or numerical information presented herein, although that information may be based in part on loan level data provided by the issuer or its affiliates.”
(k) The Company and the Underwriters each Underwriter agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 12 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(l) In the event that the Company becomes aware, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Issuer Free Writing Prospectus”), the Company shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each The Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company Depositor that after the final Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor purchaser of Offered Certificates unless such information is preceded or accompanied by the final Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Banc of America Funding 2007-a Trust)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no Underwriter shall convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i1) is made in reliance on Rule 134 under the Securities Act, (ii2) is made in reliance on Rule 172 under the Securities Act, (iii3) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iv4) constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no Underwriter The Underwriters shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “ABS informational and computational material,” as defined in Item 1101(a) of Regulation AB under the Securities Act (“ABS Informational and Computational Material”), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(b) Each Underwriter shall deliver to the Company Depositor, no later than two business days prior to the date of first use thereof, (a) any Underwriter Free Writing Prospectus prepared by or on behalf of such Underwriter that contains any “issuer information,” as defined in Rule 433(h) under the Securities Act1 (“Issuer Information”) (which the parties hereto agree includes, without limitation, the Sellers’ Information) and (b) any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (each, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) business day prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
(i) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to Certificates. Notwithstanding the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and
(ii) foregoing, any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an Underwriter the Underwriters to the Company Depositor not later than the later of (Aa) one (1) two business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (Bb) the date of first use of such Free Writing Prospectus.
(c) Each Underwriter represents and warrants to the Company Depositor that the Free Writing Prospectuses to be furnished to the Company Depositor by such the Underwriter pursuant to Section 9(b8(b) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors purchasers of Offered Certificates by such the Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each Underwriter represents and warrants to the Company Depositor that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company Depositor pursuant to Section 9(b) hereof 8(b), when read together with all other Time of Sale Information, did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investorTime of Sale, and will not as of the Closing Date, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and misleading; provided however, that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, no Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, which information was not corrected by information Corrective 1 Such definition of “issuer information” is further clarified by footnote 271 to SEC Release No. 33-8591. See 70 Fed. Reg. 44,722, at 44,751 (August 3, 2005). Information subsequently supplied by the Company, Depositor or any Seller to the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time of Sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale)Sale.
(e) The Company Depositor agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Any Issuer Free Writing Prospectus”);
(ii) Any Free Writing Prospectus or portion thereof delivered by an the Underwriter to the Company Depositor pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed8(b);; and
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company Depositor or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e8(e) hereof by the Company Depositor shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may shall be filed by the Company Depositor with the Commission within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may shall be filed by the Company Depositor with the Commission not later than the later of the due date for filing of the final Prospectus relating to the Offered Certificates pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and;
(iii) any Any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv8(e)(iii) hereof mayshall, if no payment has been made or consideration has been given by or on behalf of the Company Depositor for the Free Writing Prospectus or its dissemination, be filed by the Company Depositor with the Commission not later than four (4) business days after the Company Depositor becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.; and
(giv) Each Underwriter (with the reasonable cooperation of the Company) The Depositor shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g) hereof, each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g) and 9(h) hereof, neither the Company nor any Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any other offering participant other than the CompanyDepositor, if such information is included or incorporated by reference in the Prospectus a prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, or (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or thereof.
(Cg) Each Underwriter shall provide to the Depositor any Free Writing Prospectus that does not contain substantive changes from is used or additions referred to a Free Writing Prospectus previously filed with the Commission.
(j) The Company by it and the Underwriters each agree that any Free Writing Prospectuses prepared distributed by each such party shall contain the following legend: “The depositor filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) for the offering to which this communication relates. Before you invest, you should read the prospectus in the registration statement and other documents the depositor has filed with the Securities and Exchange Commission for more complete information about the depositor, the issuing entity and this offering. You may get these documents for free by visiting XXXXX or on the Securities and Exchange Commission website at xxx.xxx.xxx. Alternatively, the depositor, Deutsche Bank Securities, Inc., any underwriter or any dealer participating in this offering will arrange to send you the prospectus after filing if you request it by calling toll free 1-800-503-4611 or by emailing xxxxxxxxxx.xxxx@xx.xxx.”
(k) The Company and the Underwriters each agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(l) In the event that the Company becomes aware, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Issuer Free Writing Prospectus”), the Company shall notify the Underwriters behalf of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company that after the Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor unless such information is preceded or accompanied by the final Prospectus.in
Appears in 1 contract
Samples: Underwriting Agreement (JPMBB Commercial Mortgage Securities Trust 2015-C33)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no Underwriter shall convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iv) constitutes a “"free writing prospectus,” " as defined in Rule 405 under the Securities Act (a “"Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance"). Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no Underwriter shall prepare, convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “"ABS informational and computational material,” " as defined in Item 1101(a) of Regulation AB under the Securities Act (“"ABS Informational and Computational Material”" and together with any Free Writing Prospectus "Disclosure Information"), in reliance upon Rules 167 and 426 under the Securities Act, Act other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP)Prospectuses; provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(b) Each Underwriter shall deliver to the Company Company:
(i) any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (each, an “"Underwriter Free Writing Prospectus”") that contains any Issuer Information by no later than one (1) business day prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:and
(iii) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and
(ii) . Notwithstanding the foregoing, any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an Underwriter to the Company not later than the later of (A) one (1) business day prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (B) the date of first use of such Free Writing Prospectus.
(c) Each Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such Underwriter pursuant to Section 9(b) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each Underwriter represents and warrants to the Company that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company pursuant to Section 9(b) hereof did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investor, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and that each such Free Writing Prospectus complied with Rules 164 164, 167, 426 and 433 under the Securities Act; provided, however, no Underwriter makes any representation or warranty to the extent such misstatements or omissions are based upon or arise out of an untrue statement or omission in the Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, which information was not corrected by information subsequently supplied by the Company, the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time of Sale sale to the applicable such investor of the Offered Certificates (including without limitation, by means of a contract of sale).
(e) The Company agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Any Free Writing Prospectus that constitutes an “"issuer free writing prospectus,” " as defined in Rule 433(h) under the Securities Act (each, an “"Issuer Free Writing Prospectus”");
(ii) Any Free Writing Prospectus or portion thereof delivered by an Underwriter to the Company pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e) hereof by the Company shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(g) Each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g) hereof, each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g) and 9(h9(g) hereof, neither the Company nor any Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party shall contain the following legend: “"The depositor filed a registration statement (including a prospectus) with the Securities and Exchange Commission (SEC File No. 333-193376130390) for the offering to which this communication relates. Before you invest, you should read the prospectus in the registration statement and other documents the depositor has filed with the Securities and Exchange Commission for more complete information about the depositor, the issuing entity and this offering. You may get these documents for free by visiting XXXXX EDGAR on the Securities and Exchange Commission website Exchanxx Xxmmission web site at xxx.xxx.xxxwww.sec.gov. Alternatively, the depositordexxxxxxx, Deutsche Bank Securities, Inc., any xxy underwriter or any dealer participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll free 1-800-503-4611 or by emailing xxxxxxxxxx.xxxx@xx.xxxemail to the following address: brian.trotta@db.com.”"
(kx) The Company and Xxx Xxxxxxx xxd the Underwriters each agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(l) In the event that the Company becomes aware, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “"Defective Issuer Free Writing Prospectus”"), the Company shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company Issuer of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “"Corrected Issuer Free Writing Prospectus”"). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “"Defective Underwriter Free Writing Prospectus” " and, together with a Defective Issuer Free Writing Prospectus, a “"Defective Free Writing Prospectus”"), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the and:
(i) The Underwriters shall, if requested by the Company:
(iA) if If the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “"Corrected Free Writing Prospectus”"), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company Issuer shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(iiB) either Either (Ai) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (Bii) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s 's rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iiiC) comply Comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s 's Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s 's compliance procedures for the purpose of answering questions concerning the Underwriter’s 's practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company that after the final Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor unless such information is preceded or accompanied by the final Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (CD 2007-Cd5 Mortgage Trust)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no the Underwriter shall not convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iviii) constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no the Underwriter shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “"ABS informational and computational material,” " as defined in Item 1101(a) of Regulation AB under the Securities Act (“"ABS Informational and Computational Material”"), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(bi) Each The Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (eachCompany, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) two business day days prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
thereof, (iA) any such Free Writing Prospectus prepared by or on behalf of the Underwriter that contains any "issuer information," as defined in Rule 433(h) under the Act ("Issuer Information"), and (B) any Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; andCertificates.
(ii) Notwithstanding the provisions of Section 12(b)(i), any such Free Writing Prospectus described therein that contains only ABS Informational and Computational Materials Material, may be delivered by an the Underwriter to the Company not later than the later of (Aa) one (1) two business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (Bb) the date of first use of such Free Writing Prospectus.
(c) Each The Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such the Underwriter pursuant to Section 9(b12(b)(i) hereof or (ii) will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such the Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each The Underwriter represents and warrants to the Company that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company pursuant to Section 9(b12(b)(i) hereof or (ii) did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investor, include any untrue statement of a material fact or omit to state any material fact required to be stated therein necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Actmisleading; provided, no however, that the Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, Underwriter which information was not corrected by information subsequently supplied by the Company, Company to the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time of Sale sale to the applicable investor of the Offered Certificates (including without limitationwhich resulted in a loss, by means claim, damage or liability arising out of a contract of sale)based upon such misstatement or omission.
(e) The Company agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Any Free Writing Prospectus that constitutes an “"issuer free writing prospectus,” " as defined in Rule 433(h) under the Securities Act (each, an “"Issuer Free Writing Prospectus”");
(ii) Any Free Writing Prospectus or portion thereof delivered by an the Underwriter to the Company pursuant to Section 9(b12(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offeringhereof; and
(iviii) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e12(e) hereof by the Company shall may be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the Final Prospectus relating to the Certificates pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and;
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv12(e)(iii) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus; and
(iv) the Company shall not be required to file (A) Issuer Information contained in any Free Writing Prospectus of an offering participant other than the Issuer, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (B) any Free Writing Prospectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does reflect the final terms thereof.
(g) Each The Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or it and distributed by or on behalf of such the Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g) hereof12(g), each the Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such the Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such the Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g12(e) and 9(h) hereof12(g), neither the Company nor any the Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriters Underwriter each agree that any Free Writing Prospectuses prepared by each such party the Underwriter shall contain the following legendlegend and any other legend that the Underwriter shall deem necessary or appropriate: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in the that registration statement and other documents the depositor has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity and this offering. You may get these documents for free by visiting XXXXX EDGAR on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxxwww.sec.gov. Alternatively, the depositor, Deutsche Bank Securities, Inc.txx xepositor, any underwriter or any dealer underwritxx xx xxx xealer participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll toll-free 1-800-503294-4611 1322 or you e-mail a request to dg.prospectus_distribution@bofasecurities.com. The securities may not xx xxxxxxxx xxx xxx xxxxxxxxx. Xxnc of America Securities LLC and its affiliates may acquire, hold or sell positions in these securities, or in related derivatives, and may have an investment or commercial banking relationship with the depositor. The asset-backed securities referred to in these materials, and the asset pools backing them, are subject to modification or revision (including the possibility that one or more classes of securities may be split, combined or eliminated at any time prior to issuance or availability of a final prospectus) and are offered on a "when, as and if issued" basis. You understand that, when you are considering the purchase of these securities, a contract of sale will come into being no sooner than the date on which the relevant class has been priced and we have confirmed the allocation of securities to be made to you; any "indications of interest" expressed by emailing xxxxxxxxxx.xxxx@xx.xxxyou, and any "soft circles" generated by us, will not create binding contractual obligations for you or us. Because the asset-backed securities are being offered on a "when, as and if issued" basis, any such contract of sale will terminate, by its terms, without any further obligation or liability between us, if the securities themselves, or the particular class to which the contract relates, are not issued. Because the asset-backed securities are subject to modification or revision, any such contract also is conditioned upon the understanding that no material change will occur with respect to the relevant class of securities prior to the closing date. If a material change does occur with respect to such class, our contract will terminate, by its terms, without any further obligation or liability between us (the "Automatic Termination"). If an Automatic Termination occurs, we will provide you with revised offering materials reflecting the material change and give you an opportunity to purchase such class. To indicate your interest in purchasing the class, you must communicate to us your desire to do so within such timeframe as may be designated in connection with your receipt of the revised offering materials. The information contained in these materials may be based on assumptions regarding market conditions and other matters as reflected herein. Banc of America Securities LLC (the "Underwriter") makes no representation regarding the reasonableness of such assumptions or the likelihood that any such assumptions will coincide with actual market conditions or events, and these materials should not be relied upon for such purposes. The Underwriter and its affiliates, officers, directors, partners and employees, including persons involved in the preparation or issuance of these materials, may, from time to time, have long or short positions in, and buy and sell, the securities mentioned herein or derivatives thereof (including options). Information in these materials is current as of the date appearing on the material only. Information in these materials regarding any securities discussed herein supersedes all prior information regarding such securities. These materials are not to be construed as an offer to sell or the solicitation of any offer to buy any security in any jurisdiction where such an offer or solicitation would be illegal. This free writing prospectus is being delivered to you solely to provide you with information about the offering of the securities referred to in this free writing prospectus and to solicit an offer to purchase the securities, 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 securities until we have accepted your offer to purchase securities. You may withdraw your offer to purchase securities at any time prior to our acceptance of your offer. The information in this free writing prospectus supersedes information contained in any prior similar free writing prospectus relating to these securities prior to the time of your commitment to purchase. This free writing prospectus is not an offer to sell or solicitation of an offer to buy these securities in any state where such offer, solicitation or sale is not permitted. The Company and the Underwriter each agree that any Free Writing Prospectus prepared by the Underwriter and that is not an Issuer Free Writing Prospectus or that does not contain Issuer Information shall also contain the following legend:ot contain Issuer Information shall also contain the following legend: Neither the issuer of the securities nor any of its affiliates prepared, provided, approved or verified any statistical or numerical information presented herein, although that information may be based in part on loan level data provided by the issuer or its affiliates.”
(k) The Company and the Underwriters each Underwriter agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 12 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(l) In the event that the Company becomes aware, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Issuer Free Writing Prospectus”), the Company shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each The Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company Depositor that after the final Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor purchaser of Offered Certificates unless such information is preceded or accompanied by the final Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Banc of America Funding 2006-8t2 Trust)
Offering Communications; Free Writing Prospectuses. It is understood that the Underwriters propose to offer the Offered Certificates for sale as set forth in this Agreement, the Time of Sale Information and the Prospectus. In connection with the offering of the Offered Certificates, the Underwriters may each prepare and provide to prospective investors Free Writing Prospectuses, or portions thereof, subject to the following conditions (ato which such conditions each Underwriter agrees (provided that no Underwriter shall be responsible for any breach of the following conditions by any other Underwriter)):
(i) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of Prospectus, the Securities Act, no Underwriter Underwriters shall not convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i1) is made in reliance on Rule 134 under the Securities 1933 Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii2) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities 1933 Act, (iv3) is made in reliance on Rule 172 under the 1933 Act, (4) constitutes Time of Sale Information or a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) Prospectus that does not constitute Time of Sale Information, or (v5) constitutes such other written communication approved by the Company Depositor in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason)Depositor, no Underwriter the Underwriters shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus “computational materials” or “ABS term sheets” in reliance on the “Kxxxxx/PSA” no-action letters or any “ABS informational and computational material,” as defined in Item 1101(a) of Regulation AB under the Securities 1933 Act (“ABS Informational and Computational Material”), in reliance upon Rules 167 and 426 under the Securities 1933 Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(bii) Each Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (eachDepositor, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) business day prior to the date of first use thereof or such later date as may be agreed to by the CompanyDepositor, any Free Writing Prospectus that was prepared by or on behalf of such Underwriter (an “Underwriter Free Writing Prospectus”) and that contains any “issuer information,” as defined in Rule 433(h) under the 1933 Act and footnote 271 of the Commission’s Securities Offering Reform Release No. 33-8591 (“Issuer Information”) (which the parties hereto agree includes, without limitation, Mortgage Loan Seller Information); except that:
provided that (ia) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by Depositor no later than the later of (Ax) the date such final terms have been established for all classes of the Offered Certificates or and (By) the date of first use; and
, and (iib) any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an such Underwriter to the Company not Depositor no later than the later of (Ax) one (1) business day prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities 1933 Act or such later date as may be agreed to by the Depositor and (By) the date of first use of such Free Writing Prospectus.
(ciii) Each Underwriter represents and warrants to the Company Depositor that the Free Writing Prospectuses to be furnished to the Company Depositor by such Underwriter pursuant to Section 9(b4(ii) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such Underwriter in connection with its offer and sale of the Offered Certificates.
(div) Each Underwriter represents and warrants to the Company Depositor that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company Depositor pursuant to Section 9(b4(ii) hereof did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investorTime of Sale, and will not as of the Closing Date, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained thereintherein (when read in conjunction with the Time of Sale Information), in the light of the circumstances under which they were made, not misleading and that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Actmisleading; provided, no however, that such Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company to such UnderwriterInformation, the Mortgage Loan Seller Information or the Transaction Party Information), which information was not corrected by information Corrective Information subsequently supplied by the Company, the related Loan Seller Depositor or the related Transaction Party Mortgage Loan Seller to such Underwriter within a reasonable period of time prior to the Time of Sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale)Sale.
(ev) The Company Depositor agrees to file with the Commission the following:
(iA) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Each Issuer Free Writing Prospectus”);
(iiB) Any Free Writing Prospectus or portion thereof delivered by an any Underwriter to the Company Depositor pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed4(ii);
(iiiC) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and;
(ivD) Any Free Writing Prospectus for which the Company Depositor or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(vE) any Any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus. The Depositor is required to file such Free Writing Prospectuses with the Commission in electronic format and the Underwriters shall 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) or such other format as is acceptable to the Depositor, except to the extent that the Depositor, in its sole discretion, waives such requirements.
(fvi) Any Free Writing Prospectus required to be filed pursuant to Section 9(e4(v) hereof by the Company Depositor shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(iA) any Any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may shall be filed by the Company Depositor with the Commission within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(iiB) any Any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may shall be filed by the Company Depositor with the Commission not no later than the later of (i) the due date for filing of the final Prospectus relating to the Offered Certificates pursuant to Rule 424(b) under the Securities 1933 Act or and (ii) two (2) business days after the date of first use of such Free Writing Prospectus; and
(iiiC) any Any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv4(v)(D) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company Depositor for the Free Writing Prospectus or its dissemination, be filed by the Company Depositor with the Commission not later than four (4) business days after the Company Depositor becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(gvii) Each Underwriter (with the reasonable cooperation of the CompanyDepositor) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company Depositor pursuant to Section 9(b4(ii)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or it and distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(hviii) Notwithstanding the provisions of Section 9(g) hereof4(vii), each Underwriter (with the reasonable cooperation of the CompanyDepositor) shall file with the Commission any Free Writing Prospectus for which such Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company Depositor or any other offering participant, not later than four (4) business days after such Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(iix) Notwithstanding the provisions of Sections 9(e4(v) (other than 9(e)(iii4(v)(C)), 9(g4(vii) and 9(h4(viii), (A) hereof, neither the Company Depositor nor any Underwriter shall be required to file (A1) any Issuer Information contained in any Underwriter Free Writing Prospectus or Free Writing Prospectus of an Underwriter or any other offering participant other than the CompanyDepositor, if such information is included (including through incorporation by reference) in a prospectus or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B2) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof thereof, or (C3) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission, and (B) no Underwriter shall be required to file any Free Writing Prospectus to the extent that the information contained therein is included in a prospectus or Free Writing Prospectus previously filed that relates to the offering of the Offered Certificates.
(jx) The Company Depositor and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party it shall contain the following legend, or substantially equivalent legend that complies with Rule 433 of the 1933 Act: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission SEC (File No. Number 333-193376180779) for the offering to which this communication free writing prospectus relates. Before you invest, you should read the prospectus in the registration statement and other documents the depositor has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity and this offering. You may get these documents for free by visiting XXXXX EXXXX on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxxwxx.xxx.xxx. Alternatively, the depositor, Deutsche Bank Securities, Inc., any underwriter or any dealer participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll free 1-800000-503000-4611 0000 or by emailing xxxxxxxxxx.xxxx@xx.xxxemail to pxxxxxxxxx@xx.xxx.”
(kxi) The Company Depositor and the Underwriters each Underwriter agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 4, and that have not been filed, for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(lxii) In (A) If the event that the Company Depositor becomes awareaware that, at any time between as of the Time of Sale or any Subsequent Time as of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in the light of the circumstances under which they were made, not misleading misleading, or conflicted or conflicts with the information contained in the Registration Statement (a “Defective Issuer Free Writing Prospectus”), the Company Depositor shall notify the Underwriters of such untrue statement or omission or conflict within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company Depositor shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement misstatement, omission or omission conflict in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company that after the Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor unless such information is preceded or accompanied by the final Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2013-C12)
Offering Communications; Free Writing Prospectuses. It is understood that the Underwriters propose to offer the Offered Certificates for sale as set forth in this Agreement, the Time of Sale Information and the Prospectus. In connection with the offering of the Offered Certificates, the Underwriters may each prepare and provide to prospective investors Free Writing Prospectuses, or portions thereof, subject to the following conditions (ato which such conditions each Underwriter agrees (provided that no Underwriter shall be responsible for any breach of the following conditions by any other Underwriter)):
(i) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of Prospectus, the Securities Act, no Underwriter Underwriters shall not convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i1) is made in reliance on Rule 134 under the Securities 1933 Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii2) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities 1933 Act, (iv3) is made in reliance on Rule 172 under the 1933 Act, (4) constitutes Time of Sale Information or a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) Prospectus that does not constitute Time of Sale Information, or (v5) constitutes such other written communication approved by the Company Depositor in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason)Depositor, no Underwriter the Underwriters shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus “computational materials” or “ABS term sheets” in reliance on the “Xxxxxx/PSA” no-action letters or any “ABS informational and computational material,” as defined in Item 1101(a) of Regulation AB under the Securities 1933 Act (“ABS Informational and Computational Material”), in reliance upon Rules 167 and 426 under the Securities 1933 Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(bii) Each Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (eachDepositor, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) business day prior to the date of first use thereof or such later date as may be agreed to by the CompanyDepositor, any Free Writing Prospectus that was prepared by or on behalf of such Underwriter (an “Underwriter Free Writing Prospectus”) and that contains any “issuer information,” as defined in Rule 433(h) under the 1933 Act and footnote 271 of the Commission’s Securities Offering Reform Release No. 33-8591 (“Issuer Information”) (which the parties hereto agree includes, without limitation, Mortgage Loan Seller Information); except that:
provided that (ia) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by Depositor no later than the later of (Ax) the date such final terms have been established for all classes of the Offered Certificates or and (By) the date of first use; and
, and (iib) any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an such Underwriter to the Company not Depositor no later than the later of (Ax) one (1) business day prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities 1933 Act or such later date as may be agreed to by the Depositor and (By) the date of first use of such Free Writing Prospectus.
(ciii) Each Underwriter represents and warrants to the Company Depositor that the Free Writing Prospectuses to be furnished to the Company Depositor by such Underwriter pursuant to Section 9(b4(ii) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such Underwriter in connection with its offer and sale of the Offered Certificates.
(div) Each Underwriter represents and warrants to the Company Depositor that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company Depositor pursuant to Section 9(b4(ii) hereof did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investorTime of Sale, and will not as of the Closing Date, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained thereintherein (when read in conjunction with the Time of Sale Information), in the light of the circumstances under which they were made, not misleading and that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Actmisleading; provided, no however, that such Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company to such UnderwriterInformation, the Mortgage Loan Seller Information or the Transaction Party Information), which information was not corrected by information Corrective Information subsequently supplied by the Company, the related Loan Seller Depositor or the related Transaction Party Mortgage Loan Seller to such Underwriter within a reasonable period of time prior to the Time of Sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale)Sale.
(ev) The Company Depositor agrees to file with the Commission the following:
(iA) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Each Issuer Free Writing Prospectus”);
(iiB) Any Free Writing Prospectus or portion thereof delivered by an any Underwriter to the Company Depositor pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed4(ii);
(iiiC) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and;
(ivD) Any Free Writing Prospectus for which the Company Depositor or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(vE) any Any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus. The Depositor is required to file such Free Writing Prospectuses with the Commission in electronic format and the Underwriters shall 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) or such other format as is acceptable to the Depositor, except to the extent that the Depositor, in its sole discretion, waives such requirements.
(fvi) Any Free Writing Prospectus required to be filed pursuant to Section 9(e4(v) hereof by the Company Depositor shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(iA) any Any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may shall be filed by the Company Depositor with the Commission within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(iiB) any Any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may shall be filed by the Company Depositor with the Commission not no later than the later of (i) the due date for filing of the final Prospectus relating to the Offered Certificates pursuant to Rule 424(b) under the Securities 1933 Act or and (ii) two (2) business days after the date of first use of such Free Writing Prospectus; and
(iiiC) any Any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv4(v)(D) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company Depositor for the Free Writing Prospectus or its dissemination, be filed by the Company Depositor with the Commission not later than four (4) business days after the Company Depositor becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(gvii) Each Underwriter (with the reasonable cooperation of the CompanyDepositor) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company Depositor pursuant to Section 9(b)4(ii) hereof) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or it and distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(hviii) Notwithstanding the provisions of Section 9(g4(vii) hereof, each Underwriter (with the reasonable cooperation of the CompanyDepositor) shall file with the Commission any Free Writing Prospectus for which such Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company Depositor or any other offering participant, not later than four (4) business days after such Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(iix) Notwithstanding the provisions of Sections 9(e4(v) (other than 9(e)(iii4(v)(C)), 9(g4(vii) and 9(h4(viii) hereof, (A) neither the Company Depositor nor any Underwriter shall be required to file (A1) any Issuer Information contained in any Underwriter Free Writing Prospectus or Free Writing Prospectus of an Underwriter or any other offering participant other than the CompanyDepositor, if such information is included (including through incorporation by reference) in a prospectus or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B2) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof thereof, or (C3) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission, and (B) no Underwriter shall be required to file any Free Writing Prospectus to the extent that the information contained therein is included in a prospectus or Free Writing Prospectus previously filed that relates to the offering of the Offered Certificates.
(jx) The Company Depositor and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party it shall contain the following legend, or substantially equivalent legend that complies with Rule 433 of the 1933 Act: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission SEC (File No. Number 333-193376201743) for the offering to which this communication free writing prospectus relates. Before you invest, you should read the prospectus in the registration statement and other documents the depositor has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity and this offering. You may get these documents for free by visiting XXXXX on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxx. Alternatively, the depositor, Deutsche Bank Securities, Inc., any underwriter or any dealer participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll free 10-800000-503000-4611 0000 or by emailing xxxxxxxxxx.xxxx@xx.xxxemail to xx.Xxxxxxxxxx_Xxxxxxxx@xxxx.xxx.”
(kxi) The Company Depositor and the Underwriters each Underwriter agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 4, and that have not been filed, for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(lxii) In (A) If the event that the Company Depositor becomes awareaware that, at any time between as of the Time of Sale or any Subsequent Time as of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in the light of the circumstances under which they were made, not misleading misleading, or conflicted or conflicts with the information contained in the Registration Statement (a “Defective Issuer Free Writing Prospectus”), the Company Depositor shall notify the Underwriters of such untrue statement or omission or conflict within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company Depositor shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement misstatement, omission or omission conflict in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company that after the Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor unless such information is preceded or accompanied by the final Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Bank of America Merrill Lynch Commercial Mortgage Trust 2015-Ubs7)
Offering Communications; Free Writing Prospectuses. It is understood that the Underwriters propose to offer the Offered Certificates for sale as set forth in this Agreement, the Time of Sale Information and the Prospectus. In connection with the offering of the Offered Certificates, the Underwriters may each prepare and provide to prospective investors Free Writing Prospectuses, or portions thereof, subject to the following conditions (ato which such conditions each Underwriter agrees (provided that no Underwriter shall be responsible for any breach of the following conditions by any other Underwriter)):
(i) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of Prospectus, the Securities Act, no Underwriter Underwriters shall not convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i1) is made in reliance on Rule 134 under the Securities 1933 Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii2) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities 1933 Act, (iv3) is made in reliance on Rule 172 under the 1933 Act, (4) constitutes Time of Sale Information or a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) Prospectus that does not constitute Time of Sale Information, or (v5) constitutes such other written communication approved by the Company Depositor in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason)Depositor, no Underwriter the Underwriters shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus “computational materials” or “ABS term sheets” in reliance on the “Xxxxxx/PSA” no-action letters or any “ABS informational and computational material,” as defined in Item 1101(a) of Regulation AB under the Securities 1933 Act (“ABS Informational and Computational Material”), in reliance upon Rules 167 and 426 under the Securities 1933 Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(bii) Each Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (eachDepositor, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) business day prior to the date of first use thereof or such later date as may be agreed to by the CompanyDepositor, any Free Writing Prospectus that was prepared by or on behalf of such Underwriter (an “Underwriter Free Writing Prospectus”) and that contains any “issuer information,” as defined in Rule 433(h) under the 1933 Act and footnote 271 of the Commission’s Securities Offering Reform Release No. 33-8591 (“Issuer Information”) (which the parties hereto agree includes, without limitation, Mortgage Loan Seller Information); except that:
provided that (ia) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by Depositor no later than the later of (Ax) the date such final terms have been established for all classes of the Offered Certificates or and (By) the date of first use; and
, and (iib) any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an such Underwriter to the Company not Depositor no later than the later of (Ax) one (1) business day prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities 1933 Act or such later date as may be agreed to by the Depositor and (By) the date of first use of such Free Writing Prospectus.
(ciii) Each Underwriter represents and warrants to the Company Depositor that the Free Writing Prospectuses to be furnished to the Company Depositor by such Underwriter pursuant to Section 9(b4(ii) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such Underwriter in connection with its offer and sale of the Offered Certificates.
(div) Each Underwriter represents and warrants to the Company Depositor that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company Depositor pursuant to Section 9(b4(ii) hereof did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investorTime of Sale, and will not as of the Closing Date, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained thereintherein (when read in conjunction with the Time of Sale Information), in the light of the circumstances under which they were made, not misleading and that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Actmisleading; provided, no however, that such Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company to such UnderwriterInformation, the Mortgage Loan Seller Information or the Transaction Party Information), which information was not corrected by information Corrective Information subsequently supplied by the Company, the related Loan Seller Depositor or the related Transaction Party Mortgage Loan Seller to such Underwriter within a reasonable period of time prior to the Time of Sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale)Sale.
(ev) The Company Depositor agrees to file with the Commission the following:
(iA) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Each Issuer Free Writing Prospectus”);
(iiB) Any Free Writing Prospectus or portion thereof delivered by an any Underwriter to the Company Depositor pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed4(ii);
(iiiC) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and;
(ivD) Any Free Writing Prospectus for which the Company Depositor or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(vE) any Any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus. The Depositor is required to file such Free Writing Prospectuses with the Commission in electronic format and the Underwriters shall 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) or such other format as is acceptable to the Depositor, except to the extent that the Depositor, in its sole discretion, waives such requirements.
(fvi) Any Free Writing Prospectus required to be filed pursuant to Section 9(e4(v) hereof by the Company Depositor shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(iA) any Any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may shall be filed by the Company Depositor with the Commission within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(iiB) any Any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may shall be filed by the Company Depositor with the Commission not no later than the later of (i) the due date for filing of the final Prospectus relating to the Offered Certificates pursuant to Rule 424(b) under the Securities 1933 Act or and (ii) two (2) business days after the date of first use of such Free Writing Prospectus; and
(iiiC) any Any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv4(v)(D) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company Depositor for the Free Writing Prospectus or its dissemination, be filed by the Company Depositor with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(g) Each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g) hereof, each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g) and 9(h) hereof, neither the Company nor any Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party shall contain the following legend: “The depositor filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) for the offering to which this communication relates. Before you invest, you should read the prospectus in the registration statement and other documents the depositor has filed with the Securities and Exchange Commission for more complete information about the depositor, the issuing entity and this offering. You may get these documents for free by visiting XXXXX on the Securities and Exchange Commission website at xxx.xxx.xxx. Alternatively, the depositor, Deutsche Bank Securities, Inc., any underwriter or any dealer participating in this offering will arrange to send you the prospectus after filing if you request it by calling toll free 1-800-503-4611 or by emailing xxxxxxxxxx.xxxx@xx.xxx.”
(k) The Company and the Underwriters each agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(l) In the event that the Company becomes aware, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Issuer Free Writing Prospectus”), the Company shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company that after the Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor unless such information is preceded or accompanied by the final Prospectus.four
Appears in 1 contract
Samples: Underwriting Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2015-C24)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no the Underwriter shall not convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iviii) constitutes a “"free writing prospectus,” " as defined in Rule 405 under the Securities Act (a “"Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance"). Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no the Underwriter shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “"ABS informational and computational material,” " as defined in Item 1101(a) of Regulation AB under the Securities Act (“"ABS Informational and Computational Material”"), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(bi) Each The Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (eachCompany, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) two business day days prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
thereof, (iA) any such Free Writing Prospectus prepared by or on behalf of the Underwriter that contains any "issuer information," as defined in Rule 433(h) under the Act ("Issuer Information"), and (B) any Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; andCertificates.
(ii) Notwithstanding the provisions of Section (b)(i), any such Free Writing Prospectus described therein that contains only ABS Informational and Computational Materials may be delivered by an the Underwriter to the Company not later than the later of (Aa) one (1) two business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (Bb) the date of first use of such Free Writing Prospectus.
(c) Each The Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such the Underwriter pursuant to Section 9(b11(b)(i) hereof or (ii) will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such the Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each The Underwriter represents and warrants to the Company that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company pursuant to Section 9(b11(b)(i) hereof or (ii) did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investor, include any untrue statement of a material fact or omit to state any material fact required to be stated therein necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and misleading; provided however, that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, no Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, Underwriter which information was not corrected by information subsequently supplied by the Company, Company to the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time of Sale sale to the applicable investor of the Offered Certificates (including without limitationwhich resulted in a loss, by means claim, damage or liability arising out of a contract of sale)or based upon such misstatement or omission.
(e) The Company agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Any Free Writing Prospectus that constitutes an “"issuer free writing prospectus,” " as defined in Rule 433(h) under the Securities Act (each, an “Issuer Free Writing Prospectus”)Act;
(ii) Any Free Writing Prospectus or portion thereof delivered by an the Underwriter to the Company pursuant to Section 9(b11(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offeringhereof; and
(iviii) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e11(e) hereof by the Company shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the final Prospectus relating to the Certificates pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and;
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv11(e)(3) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus; and
(iv) the Company shall not be required to file (A) Issuer Information contained in any Free Writing Prospectus of an offering participant other than the Company, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (B) any Free Writing Prospectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does reflect the final terms thereof.
(g) Each The Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or it and distributed by or on behalf of such the Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g) hereof11(g), each the Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such the Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such the Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g11(e) and 9(h) hereof11(g), neither the Company nor any the Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriters Underwriter each agree that any Free Writing Prospectuses prepared by each such party it shall contain the following legend: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in the that registration statement and other documents the depositor has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity depositor and this offering. You may get these documents for free by visiting XXXXX EDGAR on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxxwww.sec.gov. AlternativelyAlternativelx, the xxe depositor, Deutsche Bank Securities, Inc., any underwriter or any dealer participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll toll-free 1-800-503294-4611 or by emailing xxxxxxxxxx.xxxx@xx.xxx1322.”
(k) The Company and the Underwriters each agree to retain Underwriter agxxx xx xxxxxx all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 11 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(l) In the event that the Company becomes aware, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Issuer Free Writing Prospectus”), the Company shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company that after the Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor unless such information is preceded or accompanied by the final Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Banc of America Mortgage 2007-4 Trust)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no the Underwriter shall not convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iviii) constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no the Underwriter shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “"ABS informational and computational material,” " as defined in Item 1101(a) of Regulation AB under the Securities Act (“"ABS Informational and Computational Material”"), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(bi) Each The Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (eachCompany, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) two business day days prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
thereof, (iA) any such Free Writing Prospectus prepared by or on behalf of the Underwriter that contains any "issuer information," as defined in Rule 433(h) under the Act ("Issuer Information"), and (B) any Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; andCertificates.
(ii) Notwithstanding the provisions of Section 12(b)(i), any such Free Writing Prospectus described therein that contains only ABS Informational and Computational Materials Material, may be delivered by an the Underwriter to the Company not later than the later of (Aa) one (1) two business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (Bb) the date of first use of such Free Writing Prospectus.
(c) Each The Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such the Underwriter pursuant to Section 9(b12(b)(i) hereof or (ii) will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such the Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each The Underwriter represents and warrants to the Company that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company pursuant to Section 9(b12(b)(i) hereof or (ii) did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investor, include any untrue statement of a material fact or omit to state any material fact required to be stated therein necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and misleading; provided however, that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, no Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, Underwriter which information was not corrected by information subsequently supplied by the Company, Company to the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time of Sale sale to the applicable investor of the Offered Certificates (including without limitationwhich resulted in a loss, by means claim, damage or liability arising out of a contract of sale)based upon such misstatement or omission.
(e) The Company agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Any Free Writing Prospectus that constitutes an “"issuer free writing prospectus,” " as defined in Rule 433(h) under the Securities Act (each, an “Issuer Free Writing Prospectus”)Act;
(ii) Any Free Writing Prospectus or portion thereof delivered by an the Underwriter to the Company pursuant to Section 9(b12(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offeringhereof; and
(iviii) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e12(e) hereof by the Company shall may be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the final Prospectus relating to the Certificates pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and;
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv12(e)(iii) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus; and
(iv) the Company shall not be required to file (A) Issuer Information contained in any Free Writing Prospectus of an offering participant other than the Issuer, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (B) any Free Writing Prospectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does reflect the final terms thereof.
(g) Each The Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or it and distributed by or on behalf of such the Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g) hereof12(g), each the Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such the Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such the Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g12(e) and 9(h) hereof12(g), neither the Company nor any the Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriters Underwriter each agree that any Free Writing Prospectuses prepared by each such party the Underwriter shall contain the following legendlegend and any other legend that the Underwriter shall deem necessary or appropriate: “The depositor issuer has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in the that registration statement and other documents the depositor issuer has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity issuer and this offering. You may get these documents for free by visiting XXXXX on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxx. Alternatively, the depositorissuer, Deutsche Bank Securities, Inc., any the underwriter or any dealer participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll toll-free 1-800-503294-4611 1322. The securities may not be suitable for all investors. The underwriter and its affiliates may acquire, hold or sell positions in these securities, or in related derivatives, and may have an investment or commercial banking relationship with the issuer. The asset-backed securities referred to in these materials, and the asset pools backing them, are subject to modification or revision (including the possibility that one or more classes of securities may be split, combined or eliminated at any time prior to issuance or availability of a final prospectus) and are offered on a "when, as and if issued" basis. Because the asset-backed securities are being offered on a "when, as and if issued" basis, any contract of sale will terminate, by emailing xxxxxxxxxx.xxxx@xx.xxxits terms, without any further obligation or liability between us, if the securities themselves, or the particular class to which the contract relates, are not issued. Because the asset-backed securities are subject to modification or revision, any such contract also is conditioned upon the understanding that no material change will occur with respect to the relevant class of securities prior to the closing date. If a material change does occur with respect to such class, our contract will terminate, by its terms, without any further obligation or liability between us (the "Automatic Termination"). If an Automatic Termination occurs, we will provide you with revised offering materials reflecting the material change and give you an opportunity to purchase such class. To indicate your interest in purchasing the class, you must communicate to us your desire to do so within such timeframe as may be designated in connection with your receipt of the revised offering materials. This free writing prospectus is being delivered to you solely to provide you with information about the offering of the securities referred to in this free writing prospectus and to solicit an offer to purchase the securities, 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 securities until we have accepted your offer to purchase securities. We will not accept any offer by you to purchase the securities, and you will not have any contractual commitment to purchase any of the securities until after you have received the preliminary prospectus. You may withdraw your offer to purchase securities at any time prior to our acceptance of your offer. The information in this free writing prospectus supersedes information contained in any prior similar free writing prospectus relating to these securities prior to the time of your commitment to purchase. This free writing prospectus is not an offer to sell or solicitation of an offer to buy these securities in any state where such offer, solicitation or sale is not permitted. The Company and the Underwriter each agree that any Free Writing Prospectus prepared by the Underwriter and that is not an Issuer Free Writing Prospectus or that does not contain Issuer Information shall also contain the following legend: Neither the issuer of the securities nor any of its affiliates prepared, provided, approved or verified any statistical or numerical information presented herein, although that information may be based in part on loan level data provided by the issuer or its affiliates.”
(k) The Company and the Underwriters each Underwriter agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 12 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(l) In the event that the Company becomes aware, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Issuer Free Writing Prospectus”), the Company shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each The Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company Depositor that after the final Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor purchaser of Offered Certificates unless such information is preceded or accompanied by the final Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Banc of America Funding 2006-2 Trust)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no Underwriter shall convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, (iv) constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no Underwriter shall prepare, convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “ABS informational and computational material,” as defined in Item 1101(a) of Regulation AB under the Securities Act (“ABS Informational and Computational Material”), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead UnderwriterKeyBanc, CF&Co. and Drexel) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(b) Each Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (each, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) business day prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
(i) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and
(ii) any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an Underwriter to the Company not later than the later of (A) one (1) business day prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (B) the date of first use of such Free Writing Prospectus.
(c) Each Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such Underwriter pursuant to Section 9(b) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each Underwriter represents and warrants to the Company that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company pursuant to Section 9(b) hereof did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investor, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, however, no Underwriter makes any representation or warranty to the extent such misstatements or omissions are based upon or arise out of an untrue statement or omission in the Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, which information was not corrected by information subsequently supplied by the Company, the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time of Sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale).
(e) The Company agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Issuer Free Writing Prospectus”);
(ii) Any Free Writing Prospectus or portion thereof delivered by an Underwriter to the Company pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e) hereof by the Company shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(g) Each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g) hereof, each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g) and 9(h) hereof, neither the Company nor any Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party shall contain the following legend: “The depositor filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376184376) for the offering to which this communication relates. Before you invest, you should read the prospectus in the registration statement and other documents the depositor has filed with the Securities and Exchange Commission for more complete information about the depositor, the issuing entity and this offering. You may get these documents for free by visiting XXXXX on the Securities and Exchange Commission website at xxx.xxx.xxx. Alternatively, the depositor, Deutsche Bank Securities, Inc., any underwriter or any dealer participating in this offering will arrange to send you the prospectus after filing if you request it by calling toll toll-free 1-800-503-4611 or by emailing xxxxxxxxxx.xxxx@xx.xxx.”
(k) The Company and the Underwriters each agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(l) In the event that the Company becomes aware, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Issuer Free Writing Prospectus”), the Company shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company that after the Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor unless such information is preceded or accompanied by the final Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (COMM 2014-Ubs2 Mortgage Trust)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no Underwriter shall convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, (iv) constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no Underwriter shall prepare, convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “ABS informational and computational material,” as defined in Item 1101(a) of Regulation AB under the Securities Act (“ABS Informational and Computational Material”), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead UnderwriterJPMorgan and Nomura) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(b) Each Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (each, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) business day prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
(i) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and
(ii) any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an Underwriter to the Company not later than the later of (A) one (1) business day prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (B) the date of first use of such Free Writing Prospectus.
(c) Each Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such Underwriter pursuant to Section 9(b) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each Underwriter represents and warrants to the Company that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company pursuant to Section 9(b) hereof did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investor, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, however, no Underwriter makes any representation or warranty to the extent such misstatements or omissions are based upon or arise out of an untrue statement or omission in the Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, which information was not corrected by information subsequently supplied by the Company, the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time time of Sale sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale).
(e) The Company agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Issuer Free Writing Prospectus”);
(ii) Any Free Writing Prospectus or portion thereof delivered by an Underwriter to the Company pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e) hereof by the Company shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(g) Each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g) hereof, each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g) and 9(h) hereof, neither the Company nor any Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party shall contain the following legend: “The depositor filed a registration statement (including a prospectus) with the Securities and Exchange Commission (SEC File No. 333-193376172143) for the offering to which this communication relates. Before you invest, you should read the prospectus in the registration statement and other documents the depositor has filed with the Securities and Exchange Commission for more complete information about the depositor, the issuing entity and this offering. You may get these documents for free by visiting XXXXX EXXXX on the Securities and Exchange Commission website web site at xxx.xxx.xxxwxx.xxx.xxx. Alternatively, the depositor, Deutsche Bank Securities, Inc., any underwriter or any dealer participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll free 1-800000-503000-4611 0000 or by emailing xxxxxxxxxx.xxxx@xx.xxxemail to the following address: pxxxxxxxxx.xxxx@xx.xxx.”
(k) The Company and the Underwriters each agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(l) In the event that the Company becomes aware, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Issuer Free Writing Prospectus”), the Company shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company Issuer of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company Issuer shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company that after the Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor unless such information is preceded or accompanied by the final Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (DBUBS 2011-Lc3 Mortgage Trust)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no the Underwriter shall not convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iviii) constitutes a “"free writing prospectus,” " as defined in Rule 405 under the Securities Act (a “"Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance"). Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no the Underwriter shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “"ABS informational and computational material,” " as defined in Item 1101(a) of Regulation AB under the Securities Act (“"ABS Informational and Computational Material”"), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(bi) Each The Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (eachCompany, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) two business day days prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
thereof, (iA) any such Free Writing Prospectus prepared by or on behalf of the Underwriter that contains any "issuer information," as defined in Rule 433(h) under the Act and footnote 271 of the Commission's Securities Offering Reform Release No. 33-8591 ("Issuer Information"), and (B) any Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; andCertificates.
(ii) Notwithstanding the provisions of Section (b)(i), any such Free Writing Prospectus described therein that contains only ABS Informational and Computational Materials Material may be delivered by an the Underwriter to the Company not later than the later of (Aa) one (1) two business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (Bb) the date of first use of such Free Writing Prospectus.
(c) Each The Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such the Underwriter pursuant to Section 9(b11(b)(i) hereof or (ii) will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such the Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each The Underwriter represents and warrants to the Company that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company pursuant to Section 9(b) hereof 11(b), when read in conjunction with the Time of Sale Information, did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investorTime of Sale, include any untrue statement of a material fact or omit to state any material fact required to be stated therein necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and misleading; provided however, that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, no Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, Underwriter which information was not corrected by information Corrective Information subsequently supplied by the Company, Company to the related Loan Seller or the related Transaction Party to such Underwriter within a reasonable period of time prior to the Time of Sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale)Sale.
(e) The Company agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Any Free Writing Prospectus that constitutes an “"issuer free writing prospectus,” " as defined in Rule 433(h) under the Securities Act (each, an “"Issuer Free Writing Prospectus”");
(ii) Any Free Writing Prospectus or portion thereof delivered by an the Underwriter to the Company pursuant to Section 9(b11(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offeringhereof; and
(iviii) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e11(e) hereof by the Company shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the final Prospectus relating to the Certificates pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and;
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv11(e)(iii) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus; and
(iv) the Company shall not be required to file (A) Issuer Information contained in any Free Writing Prospectus of an offering participant other than the Issuer, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (B) any Free Writing Prospectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does reflect the final terms thereof.
(g) Each The Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or it and distributed by or on behalf of such the Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g) hereof11(g), each the Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such the Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such the Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g11(e) and 9(h) hereof11(g), neither the Company nor any the Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriters Underwriter each agree that any Free Writing Prospectuses prepared by each such party the Underwriter shall contain the following legend: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in the that registration statement and other documents the depositor has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity issuer and this offering. You may get these documents for free by visiting XXXXX EDGAR on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxxwww.sec.gov. Alternatively, the depositor, Deutsche Bank Securities, Inc.xxx xepositor, any underwriter or any dealer underwritex xx xxx xxaler participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll toll-free 1-800-503294-4611 1322 or you e-mail a request to dg.prospectus_dxxxxxxxxxxx@xxfasecurities.com. The securities may xxx xx xxxxxxxx xxx xxx xxxxxxxxx. Xanc of America Securities LLC and its affiliates may acquire, hold or sell positions in these securities, or in the related derivatives, and may have an investment or commercial banking relationship with the depositor. The asset-backed securities referred to in these materials, and the asset pools backing them, are subject to modification or revision (including the possibility that one or more classes of securities may be split, combined or eliminated at any time prior to issuance or availability of a final prospectus) and are offered on a "when, as and if issued" basis. You understand that, when you are considering the purchase of these securities, a contract of sale will come into being no sooner than the date on which the relevant class has been priced and we have confirmed the allocation of securities to be made to you; any "indications of interest" expressed by emailing xxxxxxxxxx.xxxx@xx.xxx.”
you, and any "soft circles" generated by us, will not create binding contractual obligations for you or us. Because the asset-backed securities are being offered on a "when, as and if issued" basis, any contract of sale will terminate, by its terms, without any further obligation or liability between us, if the securities themselves, or the particular class to which the contract relates, are not issued. Because the asset-backed securities are subject to modification or revision, any such contract also is conditioned upon the understanding that no material change will occur with respect to the relevant class of securities prior to the closing date. If a material change does occur with respect to such class, our contract will terminate, by its terms, without any further obligation or liability between us (kthe "Automatic Termination"). If an Automatic Termination occurs, we will provide you with revised offering materials reflecting the material change and give you an opportunity to purchase such class. To indicate your interest in purchasing the class, you must communicate to us your desire to do so within such timeframe as may be designated in connection with your receipt of the revised offering materials. The information contained in these materials may be based on assumptions regarding market conditions and other matters as reflected herein. Banc of America Securities LLC (the "Underwriter") makes no representation regarding the reasonableness of such assumptions or the likelihood that any such assumptions will coincide with actual market conditions or events, and these materials should not be relied upon for such purposes. The Underwriter and its affiliates, officers, directors, partners and employees, including persons involved in the preparation or issuance of these materials, may, from time to time, have long or short positions in, and buy and sell, the securities mentioned herein or derivatives thereof (including options). Information in these materials is current as of the date appearing on the material only. Information in these materials regarding any securities discussed herein supersedes all prior information regarding such securities. These materials are not to be construed as an offer to sell or the solicitation of any offer to buy any security in any jurisdiction where such an offer or solicitation would be illegal. This free writing prospectus is being delivered to you solely to provide you with information about the offering of the securities referred to in this free writing prospectus and to solicit an offer to purchase the securities, 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 securities until we have accepted your offer to purchase securities. You may withdraw your offer to purchase securities at any time prior to our acceptance of your offer. The information in this free writing prospectus supersedes information contained in any prior similar free writing prospectus relating to these securities prior to the time of your commitment to purchase. This free writing prospectus is not an offer to sell or solicitation of an offer to buy these securities in any state where such offer, solicitation or sale is not permitted. The Company and the Underwriters Underwriter each agree to retain all that any Free Writing Prospectuses that they have used Prospectus prepared by the Underwriter and that are is not required to be filed pursuant to this Section 9 for a period of three (3) years an Issuer Free Writing Prospectus or that does not contain Issuer Information shall also contain the following legend: Neither the initial bona fide offering issuer of the Offered Certificatessecurities nor any of its affiliates prepared, provided, approved or verified any statistical or numerical information presented herein, although that information may be based in part on loan level data provided by the issuer or its affiliates.
(lk) In the event that the Company becomes awareaware that, at any time between as of the Time of Sale or Sale, any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “"Defective Issuer Free Writing Prospectus”"), the Company shall notify the Underwriters of such untrue statement or omission Underwriter within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company shall, if requested by the UnderwritersUnderwriter, prepare and deliver to the Underwriters Underwriter a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “"Corrected Issuer Free Writing Prospectus”"). .
(l) In the event that the Underwriter become aware that, at any time between as of the Time of Sale or any Subsequent Time of Sale and the Closing DateSale, any Underwriter becomes aware that any Underwriter Free Writing Prospectus prepared by or on behalf of the Underwriter delivered thereby to an investor in any Offered Certificates contains contained any untrue statement of a material fact or omits omitted to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading misleading, when considered in conjunction with the Time of Sale Information (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “"Defective Free Writing Prospectus”"), such the Underwriter shall notify the Company of such untrue statement or omission thereof within one business day after discovery discovery.
(unless the Company was the party that informed such m) The Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter a Free Writing ProspectusProspectus prepared by or on behalf of the Underwriter, prepare a Free Writing Prospectus that which corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “"Corrected Free Writing Prospectus”"), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or ;
(B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (xiii) notify in writing each such investor in a prominent fashion that the prior contract of sale with such the investor has been terminated, and of such the investor’s 's rights as a result of termination of such agreement and agreement;
(yiv) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iiiv) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s 's Securities Offering Reform Release No. 33-8591.
(mn) In The Company and the event that a Defective Underwriter agree to retain all Free Writing Prospectus was an Issuer Free Writing Prospectus Prospectuses that they have used and that are not required to be filed pursuant to this Section 11 for a period of three years following the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation initial bona fide offering of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investorsCertificates.
(o) Each The Underwriter covenants with the Company that after the final Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor purchaser of Offered Certificates unless such information is preceded or accompanied by the final Prospectus.
Appears in 1 contract
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no Underwriter shall convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, (iv) constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no Underwriter shall prepare, convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “ABS informational and computational material,” as defined in Item 1101(a) of Regulation AB under the Securities Act (“ABS Informational and Computational Material”), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any the Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(b) Each Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (each, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) business day prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
(i) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and
(ii) any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an Underwriter to the Company not later than the later of (A) one (1) business day prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (B) the date of first use of such Free Writing Prospectus.
(c) Each Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such Underwriter pursuant to Section 9(b) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each Underwriter represents and warrants to the Company that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company pursuant to Section 9(b) hereof did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investor, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, no Underwriter makes any representation or warranty to the extent such misstatements or omissions are based upon or arise out of an untrue statement or omission in the Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, which information was not corrected by information subsequently supplied by the Company, the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time of Sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale).
(e) The Company agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Issuer Free Writing Prospectus”);
(ii) Any Free Writing Prospectus or portion thereof delivered by an Underwriter to the Company pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e) hereof by the Company shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(g) Each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g) hereof, each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g) and 9(h) hereof, neither the Company nor any Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party shall contain the following legend: “The depositor filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) for the offering to which this communication relates. Before you invest, you should read the prospectus in the registration statement and other documents the depositor has filed with the Securities and Exchange Commission for more complete information about the depositor, the issuing entity and this offering. You may get these documents for free by visiting XXXXX EXXXX on the Securities and Exchange Commission website at xxx.xxx.xxxwxx.xxx.xxx. Alternatively, the depositor, Deutsche Bank Securities, Inc., any underwriter or any dealer participating in this offering will arrange to send you the prospectus after filing if you request it by calling toll free 1-800-503-4611 or by emailing xxxxxxxxxx.xxxx@xx.xxxpxxxxxxxxx.xxxx@xx.xxx.”
(k) The Company and the Underwriters each agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(l) In the event that the Company becomes aware, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Issuer Free Writing Prospectus”), the Company shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company that after the Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor unless such information is preceded or accompanied by the final Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (COMM 2015-Ccre27 Mortgage Trust)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities 1933 Act, no Underwriter shall convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities 1933 Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, 1933 Act or (iviii) constitutes Rule 159 Information or a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company Depositor (which consent may be withheld for any reason), no Underwriter shall prepare, convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “"ABS informational and computational material,” " as defined in Item 1101(a) of Regulation AB under the Securities 1933 Act (“"ABS Informational and Computational Material”"), in reliance upon Rules 167 and 426 under the Securities Act, 1933 Act other than materials provided to it by Credit Suisse Securities (USA) LLC or the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the CompanyDepositor.
(b) Each Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (eachDepositor, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one two (12) business day days prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
Depositor, (i) any Free Writing Prospectus that was prepared by or on behalf of such Underwriter (an "Underwriter Free Writing Prospectus") and that contains any "issuer information," as defined in Rule 433(h) under the 1933 Act and footnote 271 of the Commission's Securities Offering Reform Release No. 33-8591 ("Issuer Information") (which the parties hereto agree includes, without limitation, Mortgage Loan Sellers' Information), and (ii) any Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to Certificates. Notwithstanding the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and
(ii) foregoing, any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an Underwriter to the Company Depositor not later than the later of (A) one two (12) business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities 1933 Act or such later date as may be agreed to by the Depositor or (B) the date of first use of such Free Writing Prospectus. It is acknowledged and agreed that the Rule 159 Information does not include any Underwriter Free Writing Prospectus.
(c) Each Underwriter represents and warrants to the Company Depositor that the Free Writing Prospectuses to be furnished to the Company Depositor by such Underwriter pursuant to Section 9(b8(b) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each Underwriter represents and warrants to the Company Depositor that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company Depositor pursuant to Section 9(b8(b) hereof did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investor, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements contained thereintherein (when read in conjunction with the Rule 159 Information), in light of the circumstances under which they were made, not misleading and misleading; provided however, that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, no Underwriter makes any representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company Depositor or any Mortgage Loan Seller to such Underwriter, the Loan Seller Information or the Transaction Party Information, which information was not corrected by information subsequently supplied by the Company, the related Depositor or any Mortgage Loan Seller or the related Transaction Party to such Underwriter within a reasonable period of time prior to the Time of Sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale)Sale.
(e) The Company Depositor agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Any Issuer Free Writing Prospectus”);
(ii) Any Free Writing Prospectus or portion thereof delivered by an Underwriter to the Company Depositor pursuant to Section 9(b8(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);hereof; and
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company Depositor or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
. Notwithstanding the foregoing, the Depositor shall not be required to file (v1) Issuer Information contained in any Underwriter Free Writing Prospectus or Free Writing Prospectus of any other offering participant other than the Depositor, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (2) any ABS Informational and Computational Material that is not being treated as a Free Writing ProspectusProspectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does not reflect the final terms thereof.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e8(e) hereof by the Company Depositor shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may be filed by the Company Depositor within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company Depositor with the Commission not later than the later of the due date for filing of the final Prospectus relating to the Certificates pursuant to Rule 424(b) under the Securities 1933 Act or two (2) business days after the date of first use of such Free Writing Prospectus; and;
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv8(e)(iii) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company Depositor for the Free Writing Prospectus or its dissemination, be filed by the Company Depositor with the Commission not later than four (4) business days after the Company Depositor becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus; and
(iv) the Depositor shall not be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Depositor, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (B) any Free Writing Prospectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does not reflect the final terms thereof.
(g) Each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission Commission, or provide to the Depositor at least two (2) business days prior to the time such filing is required, any Free Writing Prospectus (other than a Free Writing Prospectus required that is used or referred to be delivered to the Company pursuant to Section 9(b)) that by it and distributed by or on behalf of such Underwriter which is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g8(g) hereof, each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company Depositor or any other offering participant, not later than four (4) business days after such the Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g8(e) and 9(h8(g) hereof, neither the Company Depositor nor any Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company Depositor and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party it shall contain the following legend, or substantially equivalent legend that complies with Rule 433 of the 1933 Act: “The depositor "We have filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) for the offering to which this communication relates. Before you invest, you should read the prospectus in the registration statement and other documents the depositor has filed with the Securities and Exchange Commission for more complete information about the depositorus, the issuing entity trust and this offering. You may get these documents for free by visiting XXXXX EDGAR on the Securities and Exchange Commission website web site at xxx.xxx.xxxwww.sec.gox. AlternativelyXxternatively, the depositor, Deutsche Bank Securities, Inc., any underwriter or any dealer participating dealxx xxxxxxxxating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll free 1-800-503-4611 1.800.221.1037 or by emailing xxxxxxxxxx.xxxx@xx.xxxemail to the following address: barry.polen@csfb.com.”"
(k) The Company Depositor and the Underwriters each agree to retain exxx xxxxx xx xxxxxx all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 8 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(li) In the event that the Company Depositor becomes awareaware that, at any time between as of the Time of Sale or Sale, any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Rule 159 Information), in light of the circumstances under which they were made, not misleading (a “"Defective Issuer Free Writing Prospectus”"), the Company Depositor shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company Depositor shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “"Corrected Issuer Free Writing Prospectus”"). .
(ii) In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any Underwriter becomes aware that that, as of the Time of Sale, any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains contained any untrue statement of a material fact or omits omitted to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Rule 159 Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “"Defective Free Writing Prospectus”"), such Underwriter shall notify the Company Depositor of such untrue statement or omission within one business day after discovery discovery.
(unless the Company was the party that informed such Underwriter of such untrue statement or omissioniii) and the The Underwriters shall, if requested by the CompanyDepositor:
(i1) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “"Corrected Free Writing Prospectus”"), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A2) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or ;
(B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x3) notify in writing each such investor in a prominent fashion that the prior contract of sale with such the investor has been terminated, and of such the investor’s 's rights as a result of termination of such agreement and agreement;
(y4) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii5) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s 's Securities Offering Reform Release No. 33-8591.
(miv) In the event that a the Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and or in the defective information was not event that any Underwriter Supplied Information, Free Writing Prospectus contains any inaccurate Issuer Information supplied by the Depositor or any Mortgage Loan Seller Information or Transaction Party Information to the related Underwriter, and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company Depositor agrees to reimburse the Underwriters for such costs; provided that, before incurring such costs, the Underwriters first permits the Depositor access to the applicable investor and an opportunity to attempt to mitigate such costs through direct negotiation with such investor.
(nv) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company Depositor that after the final Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor unless such information is preceded or accompanied by the final Prospectus.
(m) Each Underwriter covenants with the Depositor that it will make available to the Depositor, upon reasonable request, such personnel as are familiar with the Underwriter's compliance procedures for the purpose of answering questions concerning the Underwriter's practices and procedures for the preparation and dissemination of written materials concerning the Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
Appears in 1 contract
Samples: Underwriting Agreement (Credit Suisse Commercial Mortgage Trust 2007-C3)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no Underwriter shall convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i1) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii2) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iv3) constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no The Underwriter shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “"ABS informational and computational material,” " as defined in Item 1101(a) of Regulation AB under the Securities Act (“"ABS Informational and Computational Material”"), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(b) Each Underwriter shall deliver to the Company Depositor, no later than two business days prior to the date of first use thereof, (a) any Underwriter Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (each, an “Underwriter Free Writing Prospectus”) that contains any "issuer information", as defined in Rule 433(h) under the Securities Act(1) ("Issuer Information by no later than one Information") (1which the parties hereto agree includes, without limitation, Seller's Information) business day prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
and (ib) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to Certificates. Notwithstanding the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and
(ii) foregoing, any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an the Underwriter to the Company Depositor not later than the later of (Aa) one (1) two business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (Bb) the date of first use of such Free Writing Prospectus.
(c) Each Underwriter represents and warrants to the Company Depositor that the Free Writing Prospectuses to be furnished to the Company Depositor by such the Underwriter pursuant to Section 9(b8(b) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors purchasers of Offered Certificates by such the Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each Underwriter represents and warrants to the Company Depositor that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company Depositor pursuant to Section 9(b) hereof 8(b), when read together with all Time of Sale Information, did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investorTime of Sale, and will not as of the Closing Date, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and misleading; provided however, that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, no Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, which information was not corrected by information Corrective Information subsequently supplied by the Company, Depositor or any Seller to the related Loan Seller or Underwriter far enough in advance of the related Transaction Party Time of Sale so that the Underwriter could have provided the Corrective Information to such Underwriter a reasonable period any prospective purchaser prior to the Time of Sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale)for such prospective purchaser.
(e) The Company Depositor agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Any Issuer Free Writing Prospectus”);
(ii) Any Free Writing Prospectus or portion thereof delivered by an the Underwriter to the Company Depositor pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed8(b);; and
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company Depositor or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e8(e) hereof by the Company Depositor shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may shall be filed by the Company Depositor with the Commission within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may shall be filed by the Company Depositor with the Commission not later than the later of the due date for filing of the final Prospectus relating to the Offered Certificates pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and;
(iii) any Any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv8(e)(iii) hereof mayshall, if no payment has been made or consideration has been given by or on behalf of the Company Depositor for the Free Writing Prospectus or its dissemination, be filed by the Company Depositor with the Commission not later than four (4) business days after the Company Depositor becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus; and
(iv) The Depositor shall not be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any other offering participant other than the Depositor, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (B) any Free Writing Prospectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does not reflect the final terms thereof.
(g) Each Underwriter (with shall provide to the reasonable cooperation of the Company) shall file with the Commission Depositor any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or it and distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing ProspectusProspectus and the Depositor shall file such Free Writing Prospectus with the Commission.
(h) Notwithstanding the provisions of Section 9(g) hereof8(g), each Underwriter (with shall provide to the reasonable cooperation of the Company) Depositor, who shall then file with the Commission Commission, any Free Writing Prospectus for which such the Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company Depositor or any other offering participant, not later than four (4) business days after such the Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g8(e) and 9(h) hereof8(g), neither the Company Depositor nor any the Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company Depositor and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party it shall contain a legend substantially in the following legendform: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in the that registration statement and other documents the depositor has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity trust and this offering. You may get these documents for free by visiting XXXXX EDGAR on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxxwww.sec.gov. Alternatively, the depositor, Deutsche Bank Securities, Inc.thx xxxositor, any underwriter or any dealer xxxxer participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll free 1-800866-503400-4611 7834 or by emailing xxxxxxxxxx.xxxx@xx.xxx.”
(k) The Company and the Underwriters each agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 for a period of three (3) years following the initial bona fide offering of the Offered CertificatesAvinash Bappanad at bappanad_avixxxx@xxxxxxxx.com.
(l1) In the event that the Company becomes awarethx xxxxx xxxx xxx Depxxxxxx xxxxxxx xxxxx xxxx, at any time between xx of the Time of Sale or Sale, any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains contained any untrue statement of a material fact or omits omitted to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information)therein, in light of the circumstances under which they were made, not misleading misleading, when read in conjunction with the Time of Sale Information (such Issuer Free Writing Prospectus a “"Defective Issuer Free Writing Prospectus”"), the Company Depositor shall notify the Underwriters of such untrue statement or omission thereof within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company Depositor shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “"Corrected Issuer Free Writing Prospectus”). In ") and (2) in the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any Underwriter becomes aware that that, as of the Time of Sale, any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains contained any untrue statement of a material fact or omits omitted to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information)therein, in the light of the circumstances under which they were made, not misleading misleading, when read in conjunction with the Time of Sale Information, (such Underwriter Free Writing Prospectus, a “"Defective Underwriter Free Writing Prospectus” " and, together with a Defective Issuer Free Writing Prospectus, a “"Defective Free Writing Prospectus”"), such Underwriter shall notify the Company of such untrue statement or omission Depositor thereof within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the CompanyDepositor:
(iA) if If the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus with Corrective Information that corrects the material misstatement in or omission from the Defective Underwriter Free Writing Prospectus (such corrected Underwriter Free Writing Prospectus, a "Corrected Underwriter Free Writing Prospectus" and, together with a the Corrected Issuer Free Writing Prospectus, a “"Corrected Free Writing Prospectus”"), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(iiB) either (A) deliver Deliver the Corrected Free Writing Prospectus to each investor purchaser of an Offered Certificate which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or purchaser;
(BC) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each Notify such investor purchaser in a prominent prompt fashion that the any prior contract of sale with such investor purchaser has been terminated, and of such investor’s purchaser's rights as a result of termination of such agreement and agreement;
(yD) provide Provide such investor purchaser with an opportunity to affirmatively agree in writing to purchase the Offered Certificates enter into a new contract of sale on the terms described in the Corrected Free Writing Prospectus; and
(iiiE) comply Comply with any other requirements for reformation of the original contract of sale with such investorsale, as described in Section IV.A.2.c IV.2.c of the Commission’s 's Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(nl) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company Depositor that after the final Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates that contains Issuer Information to a prospective investor purchaser of Offered Certificates unless such information is preceded or accompanied by the final Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (JP Morgan Chase Commercial Mortgage Securities Trust 2006-Ldp6)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no Underwriter shall convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, (iv) constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no Underwriter shall prepare, convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “ABS informational and computational material,” as defined in Item 1101(a) of Regulation AB under the Securities Act (“ABS Informational and Computational Material”), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead UnderwriterCastleOak) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(b) Each Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (each, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) business day prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
(i) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and
(ii) any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an Underwriter to the Company not later than the later of (A) one (1) business day prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (B) the date of first use of such Free Writing Prospectus.
(c) Each Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such Underwriter pursuant to Section 9(b) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each Underwriter represents and warrants to the Company that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company pursuant to Section 9(b) hereof did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investor, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, however, no Underwriter makes any representation or warranty to the extent such misstatements or omissions are based upon or arise out of an untrue statement or omission in the Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, which information was not corrected by information subsequently supplied by the Company, the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time time of Sale sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale).
(e) The Company agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Issuer Free Writing Prospectus”);
(ii) Any Free Writing Prospectus or portion thereof delivered by an Underwriter to the Company pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e) hereof by the Company shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(g) Each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g) hereof, each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g) and 9(h) hereof, neither the Company nor any Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party shall contain the following legend: “The depositor filed a registration statement (including a prospectus) with the Securities and Exchange Commission (SEC File No. 333-193376172143) for the offering to which this communication relates. Before you invest, you should read the prospectus in the registration statement and other documents the depositor has filed with the Securities and Exchange Commission for more complete information about the depositor, the issuing entity and this offering. You may get these documents for free by visiting XXXXX EXXXX on the Securities and Exchange Commission website web site at xxx.xxx.xxxwxx.xxx.xxx. Alternatively, the depositor, Deutsche Bank Securities, Inc., any underwriter or any dealer participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll free 1-800-503-4611 or by emailing xxxxxxxxxx.xxxx@xx.xxxemail to the following address: pxxxxxxxxx.xxxx@xx.xxx.”
(k) The Company and the Underwriters each agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(l) In the event that the Company becomes aware, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Issuer Free Writing Prospectus”), the Company shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company Issuer of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company Issuer shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company that after the Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor unless such information is preceded or accompanied by the final Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (COMM 2012-Ccre1 Mortgage Trust)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no the Underwriter shall not convey or deliver any written communication communication, as defined in Rule 405 under the Act (other than the Prospectus) a "Written Communication"), to any person in connection with the initial offering of the Offered Certificates, unless such written communication Written Communication (i) is made in reliance on and in conformity with Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iviii) constitutes a “"free writing prospectus,” " as defined in Rule 405 under the Securities Act (a “"Free Writing Prospectus”) or (v) such other written communication approved by "). Notwithstanding anything to the Company contrary contained in advance. Without limitation therebythis Agreement, without the prior written consent of the Company (WFASC, which consent may be withheld for any reason)in its sole discretion, no the Underwriter shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates Certificates, any Free Writing Prospectus or “unless such Free Writing Prospectus contains only ABS informational Informational and computational material,” Computational Material, as defined in Item 1101(a) of Regulation AB under the Securities Act (“"ABS Informational and Computational Material”"), ; provided that any such Free Writing Prospectus may also contain a column showing the status of subscriptions for and allotments of the Certificates. The Underwriter shall not convey or deliver any ABS Informational and Computational Material in reliance upon on Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter . Any Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(b) Each Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such the Underwriter or any affiliate thereof (each, is referred to as an “"Underwriter Free Writing Prospectus”."
(b) WFASC shall prepare a Free Writing Prospectus (the "Issuer Free Writing Prospectus") and shall deliver such Issuer Free Writing Prospectus to the Underwriter after it files such Issuer Free Writing Prospectus with the Commission and the Underwriter shall not convey or deliver such Issuer Free Writing Prospectus to any person or entity until WFASC has notified the Underwriter that contains it has completed such filing. Thereafter, the Issuer Free Writing Prospectus may be used by the Underwriter solely in connection with the marketing of the Certificates to institutional investors; provided however, the Underwriter shall not enter into any Issuer Information by no later than one "contract of sale" with any investor, within the meaning of Rule 159 under the Act (1) business day a "Contract of Sale"), with respect to any Certificates, unless prior to the date Time of first use Sale to each investor in the Certificates, the Underwriter shall have delivered to such investor the Issuer Free Writing Prospectus and any additional Time of Sale Information, together with any amendment or supplement thereto supplied by WFASC to the Underwriter sufficiently prior to the Time of Sale to such investor to reasonably permit delivery thereof or such later date as may be agreed to by the Company; except that:Underwriter to such investor.
(i) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such The Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such deliver to WFASC each Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and
(ii) any such Free Writing Prospectus that contains only ABS Informational any "issuer information," as defined in Rule 433(h) under the Act and Computational Materials may footnote 271 of Securities Act Release No. 33-8591 ("Issuer Information") if such Underwriter Free Writing Prospectus or the portion thereof consisting of Issuer Information is required to be filed by WFASC with the Commission pursuant to Rule 433 under the Act ("Rule 433").
(ii) Any Underwriter Free Writing Prospectus that is required to be delivered pursuant to Section 9(c)(i) shall be delivered by an the Underwriter to the Company not WFASC no later than the later of (A) one (1) two business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (B) Act; provided however, that if such Underwriter Free Writing Prospectus contains any information other than ABS Informational and Computational Material, it shall instead be delivered by the Underwriter to WFASC not later than two business days prior to the date of first use of such Free Writing Prospectus.
(ciii) Each Not later than one business day after the Underwriter has determined the final structure of all classes of Certificates, and in no event later than the fourth business day preceding the due date for filing the final Prospectus pursuant to Rule 424(b) under the Act, the Underwriter shall prepare and deliver to WFASC an Underwriter Free Writing Prospectus (which may consist of a term sheet) containing a description of the final structure of the Certificates, irrespective of whether such Underwriter Free Writing Prospectus has been or will be conveyed or delivered by the Underwriter to any investor in the Certificates.
(iv) To facilitate the filing thereof by WFASC, the Underwriter shall provide the Issuer Information contained in any Underwriter Free Writing Prospectus that is required to be delivered to WFASC pursuant to this Section 9(c) in a separate document from the portion of such Free Writing Prospectus which contains information other than Issuer Information.
(d) The Underwriter represents and warrants to the Company WFASC that the Underwriter Free Writing Prospectuses required to be furnished to WFASC by the Company by such Underwriter pursuant to Section 9(b9(c) hereof will constitute all Underwriter Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such the Underwriter in connection with its offer and sale of the Offered Certificates.
(de) Each The Underwriter represents and warrants to the Company WFASC that each Underwriter Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to an investor in the Company pursuant to Section 9(b) hereof Certificates did not, as of the date Time of Sale to any prospective investor to which such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective investorconveyed, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and when considered in conjunction with the Time of Sale Information; provided however, that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, no Underwriter makes any no representation or warranty to the extent such misstatements or omissions were the result of any misstatements in or omissions from any Issuer Information in any Underwriter Writing Prospectus or, to the extent that such misstatements are based upon or arise out a substantial restatement in all material respects of an untrue statement or omission a misstatement made in the Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information Free Writing Prospectus which misstatements or the Transaction Party Information, which information was omissions were not corrected by information subsequently supplied by the Company, the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period WFASC sufficiently prior to the Time of Sale to the applicable investor of to reasonably permit delivery thereof by the Offered Certificates (including without limitation, by means of a contract of sale)Underwriter to such investor.
(ef) The Company Unless WFASC determines that such filing is not required under Rule 433, WFASC agrees to file with the Commission Commission, within the applicable time periods specified in Rule 433, the following:
(i) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Any Issuer Free Writing Prospectus”);
(ii) Any Free Writing Prospectus or portion thereof delivered by an Underwriter to the Company pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e) hereof by the Company shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and
(iiiii) Any Underwriter Free Writing Prospectus delivered by the Underwriter to WFASC pursuant to Section 9(c) or, at the election of WFASC, the portion of such Underwriter Free Writing Prospectus which consists of Issuer Information.
(g) The Underwriter shall file with the Commission, within the applicable time period specified in Rule 433, any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv) hereof may, if no payment has been made or consideration has been given that is distributed by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(g) Each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than dissemination. Any access codes or passwords needed by the date of Underwriter to complete the first use of such Free Writing Prospectusfiling shall be provided by WFASC.
(h) Notwithstanding the provisions of Section 9(g) hereof, each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g) and 9(h) hereof, neither the Company nor any Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company WFASC and the Underwriters Underwriter each agree agrees that any Free Writing Prospectuses prepared by each such party it shall contain substantially the following legend: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in the that registration statement and other documents the depositor issuer has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity depositor and this offering. You may get these documents for free by visiting XXXXX EDGAR on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxxwww.sec.gov. Alternatively, the depositor, Deutsche Bank Securities, Inc.xxx xssuer, any underwriter or any dealer ox xxx xxxxxr participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll toll-free 1-8008[xx-503xxx-4611 xxxx]. The asset-backed securities referred to in these materials, and the asset pools backing them, are subject to modification or revision (including the possibility that one or more classes of securities may be split, combined or eliminated at any time prior to issuance or availability of a final prospectus) and are offered on a "when, as and if issued" basis. You understand that, when you are considering the purchase of these securities, a contract of sale will come into being no sooner than the date on which the relevant class has been priced and the underwriter has confirmed the allocation of securities to be made to you; any "indications of interest" expressed by emailing xxxxxxxxxx.xxxx@xx.xxxyou, and any "soft circles" generated by the underwriter, will not create binding contractual obligations for you, the underwriter or us.”
(i) The Underwriter agrees to comply with the requirements of Rule 433 under the Act applicable to the Underwriter including, without limitation, the record retention requirements therein.
(i) Consistent with the manner in which written records are maintained for its own purposes, the Underwriter agrees to keep and maintain, for a period of not less than three years following the date of initial issuance of the Certificates, written records documenting, as to each investor in Certificates, the Time of Sale and the date on which each Issuer Free Writing Prospectus and each Underwriter Free Writing Prospectus was conveyed to such investor.
(ii) In the event of any litigation or written notice of potential litigation against WFASC or any of its affiliates with respect to the Certificates, the Underwriter shall, upon the request of WFASC, make available to WFASC copies of all records required to be maintained by it pursuant to Section 9(j)(i) and any Free Writing Prospectus required to be retained by it pursuant to Section 9(i).
(k) The Company and the Underwriters each agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.[Reserved]
(li) In the event that WFASC becomes aware that the Company becomes aware, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information)therein, in light of the circumstances under which they were made, not misleading (such Free Writing Prospectus, a “"Defective Issuer Free Writing Prospectus”"), the Company WFASC shall notify the Underwriters of such untrue statement or omission Underwriter thereof within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company shall, if requested by the Underwriters, WFASC shall prepare and deliver to the Underwriters Underwriter a Free Writing Prospectus that which corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “"Corrected Issuer Free Writing Prospectus”"). .
(ii) In the event that the Underwriter becomes aware that, at any time between as of the applicable Time of Sale or any Subsequent Time of Sale and to an investor in the Closing DateCertificates, any Underwriter becomes aware that any Underwriter Free Writing Prospectus prepared by or on behalf of the Underwriter and delivered thereby to an such investor in any Offered Certificates contains contained any untrue statement of a material fact or omits omitted to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information)therein, in light of the circumstances under which they were made, not misleading misleading, when considered in conjunction with the Time of Sale Information (such Free Writing Prospectus, a “"Defective Underwriter Free Writing Prospectus” Prospectus and, together with a Defective Issuer Free Writing Prospectus, a “"Defective Free Writing Prospectus”"), such the Underwriter shall notify the Company of such untrue statement or omission WFASC thereof within one business day after discovery discovery.
(unless the Company was the party that informed such iii) The Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the CompanyWFASC:
(iA) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that which corrects the material misstatement in or omission from the Defective Underwriter Free Writing Prospectus (such corrected Underwriter Free Writing Prospectus, a "Corrected Underwriter Free Writing Prospectus" and, together with a Corrected Issuer Free Writing Prospectus, a “"Corrected Free Writing Prospectus”"), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (AB) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract Contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or Sale;
(B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (yC) provide such investor with an opportunity the following:
(1) adequate disclosure of the contractual arrangement;
(2) adequate disclosure of the investor's rights under the existing Contract of Sale at the time termination is sought;
(3) adequate disclosure of the new information that is necessary to affirmatively agree in writing to purchase correct the Offered Certificates on the terms described misstatements or omissions in the Corrected Free Writing Prospectusinformation given at the time of the original Contract of Sale; and
(iii4) a meaningful ability to elect to terminate or not terminate the prior Contract of Sale and to elect to enter into or not enter into a new Contract of Sale; and
(D) comply with any other requirements for reformation of the original contract Contract of sale with such investor, as Sale described in Section IV.A.2.c IV.2.c of the Commission’s Securities Offering Reform Act Release No. Act 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each The Underwriter covenants with the Company that, upon reasonable request, WFASC that it will make available to the Company WFASC, upon reasonable prior notice and at reasonable times during normal business hours, such personnel as are familiar with the Underwriter’s 's compliance procedures for the purpose of answering questions concerning the Underwriter’s 's practices and procedures for the preparation and dissemination of written materials Written Communications concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(on) Each The Underwriter covenants with the Company WFASC that after the final Prospectus is available available, the Underwriter shall not distribute any written information Written Communication concerning the Offered Certificates to a prospective investor unless such information communication is preceded or accompanied by the final Prospectus.
(o) The Underwriter agrees, upon request of WFASC, to provide to WFASC any information within the control of the Underwriter which WFASC may reasonably request to enable WFASC to timely and accurately meet its disclosure and reporting obligations under the Act and the Exchange Act.
(p) The Underwriter agrees to cause any credit enhancement provider, derivative counterparty, special servicer or credit risk manager arranged by the Underwriter in connection with the Certificates to provide to WFASC such narrative disclosure, financial information, including required accountants' consents, and other information as WFASC may reasonably request to enable WFASC to timely and accurately meet its disclosure and reporting obligations under the Act and the Exchange Act. In addition, upon request by WFASC, the Underwriter agrees to cause the party providing the information required by the immediately preceding sentence to provide indemnity satisfactory to WFASC relating to such disclosure and financial information.
(q) Notwithstanding any other provision herein, the Underwriter and WFASC each agree to pay all costs and expenses of the other party including, without limitation, legal fees and expenses, incurred in connection with any successful action by the Underwriter or WFASC against the other party to enforce any of its rights set forth in this Section 9.
Appears in 1 contract
Samples: Underwriting Agreement (Wells Fargo Home Equity Asset-Backed Securities 2006-1 Trust)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no Underwriter shall convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i1) is made in reliance on Rule 134 under the Securities Act, (ii2) is made in reliance on Rule 172 under the Securities Act, (iii3) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iv4) constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no Underwriter The Underwriters shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “ABS informational and computational material,” as defined in Item 1101(a) of Regulation AB under the Securities Act (“ABS Informational and Computational Material”), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(b) Each Underwriter shall deliver to the Company Depositor, no later than two business days prior to the date of first use thereof, (a) any Underwriter Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (each, an “Underwriter Free Writing Prospectus”) that contains any “issuer information”, as defined in Rule 433(h) under the Securities Act1 (“Issuer Information by no later than one Information”) (1which the parties hereto agree includes, without limitation, the Seller’s Information) business day prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
and (ib) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to Certificates. Notwithstanding the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and
(ii) foregoing, any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an Underwriter the Underwriters to the Company Depositor not later than the later of (Aa) one (1) two business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (Bb) the date of first use of such Free Writing Prospectus.
(c) Each Underwriter represents and warrants to the Company Depositor that the Free Writing Prospectuses to be furnished to the Company Depositor by such the Underwriter pursuant to Section 9(b8(b) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors purchasers of Offered Certificates by such the Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each Underwriter represents and warrants to the Company Depositor that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company Depositor pursuant to Section 9(b) hereof 8(b), when read together with all other Time of Sale Information, did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investorTime of Sale, and will not as of the Closing Date, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and misleading; provided however, that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, no Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, which information was not corrected by information Corrective Information subsequently supplied by the Company, the related Loan Seller Depositor or the related Transaction Party Seller to such the Underwriter a reasonable period prior to the Time of Sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale)Sale.
(e) The Company Depositor agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Any Issuer Free Writing Prospectus”);
(ii) Any Free Writing Prospectus or portion thereof delivered by an the Underwriter to the Company Depositor pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed8(b);; and
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company Depositor or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e8(e) hereof by the Company Depositor shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may shall be filed by the Company Depositor with the Commission within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may shall be filed by the Company Depositor with the Commission not later than the later of the due date for filing of the final Prospectus relating to the Offered Certificates pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and;
(iii) any Any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv8(e)(iii) hereof mayshall, if no payment has been made or consideration has been given by or on behalf of the Company Depositor for the Free Writing Prospectus or its dissemination, be filed by the Company Depositor with the Commission not later than four (4) business days after the Company Depositor becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus; and
(iv) The Depositor shall not be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any other offering participant other than the Depositor, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (B) any Free Writing Prospectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does not reflect the final terms thereof.
(g) Each Underwriter (with shall provide to the reasonable cooperation of the Company) shall file with the Commission Depositor any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or it and distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing ProspectusProspectus and the Depositor shall file such Free Writing Prospectus with the Commission.
(h) Notwithstanding the provisions of Section 9(g) hereof8(g), each Underwriter (with shall provide to the reasonable cooperation of the Company) Depositor, who shall then file with the Commission Commission, any Free Writing Prospectus for which such the Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company Depositor or any other offering participant, not later than four (4) business days after such the Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g8(e) and 9(h) hereof8(g), neither the Company Depositor nor any Underwriter the Underwriters shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company Depositor and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party it shall contain a legend substantially in the following legendform: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in the that registration statement and other documents the depositor has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity trust and this offering. You may get these documents for free by visiting XXXXX EXXXX on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxxwxx.xxx.xxx. Alternatively, the depositor, Deutsche Bank Securities, Inc., any underwriter or any dealer participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll free 1-800000-503000-4611 0000 or by emailing xxxxxxxxxx.xxxx@xx.xxx.”
(k) The Company and the Underwriters each agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 for a period of three (3) years following the initial bona fide offering of the Offered Certificatescxxx-xxxxxxxxxx@xxxxxxxx.xxx.
(l1) In the event that the Company Depositor becomes awareaware that, at any time between as of the Time of Sale or Sale, any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains contained any untrue statement of a material fact or omits omitted to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information)therein, in light of the circumstances under which they were made, not misleading misleading, when read in conjunction with the Time of Sale Information (such Issuer Free Writing Prospectus a “Defective Issuer Free Writing Prospectus”), the Company Depositor shall notify the Underwriters of such untrue statement or omission thereof within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company Depositor shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In ) and (2) in the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any Underwriter becomes aware that that, as of the Time of Sale, any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains contained any untrue statement of a material fact or omits omitted to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information)therein, in the light of the circumstances under which they were made, not misleading misleading, when read in conjunction with the Time of Sale Information (such Underwriter Free Writing Prospectus, a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission Depositor thereof within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the CompanyDepositor:
(iA) if If the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus with Corrective Information that corrects the material misstatement in or omission from the Defective Underwriter Free Writing Prospectus (such corrected Underwriter Free Writing Prospectus, a “Corrected Underwriter Free Writing Prospectus” and, together with a the Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(iiB) either (A) deliver Deliver the Corrected Free Writing Prospectus to each investor purchaser of an Offered Certificate which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or purchaser;
(BC) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each Notify such investor purchaser in a prominent prompt fashion that the any prior contract of sale with such investor purchaser has been terminated, and of such investorpurchaser’s rights as a result of termination of such agreement and agreement;
(yD) provide Provide such investor purchaser with an opportunity to affirmatively agree in writing to purchase the Offered Certificates enter into a new contract of sale on the terms described in the Corrected Free Writing Prospectus; and
(iiiE) comply Comply with any other requirements for reformation of the original contract of sale with such investorsale, as described in Section IV.A.2.c IV.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(nl) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company Depositor that after the final Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates that contains Issuer Information to a prospective investor purchaser of Offered Certificates unless such information is preceded or accompanied by the final Prospectus.
(m) The Depositor and each Underwriter agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 8 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
Appears in 1 contract
Samples: Underwriting Agreement (J.P. Morgan Chase Commercial Mortgage Securities Trust 2011-C5)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no the Underwriter shall not convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iviii) constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no the Underwriter shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “"ABS informational and computational material,” " as defined in Item 1101(a) of Regulation AB under the Securities Act (“"ABS Informational and Computational Material”"), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(bi) Each The Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (eachCompany, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) two business day days prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
thereof, (iA) any such Free Writing Prospectus prepared by or on behalf of the Underwriter that contains any "issuer information," as defined in Rule 433(h) under the Act ("Issuer Information"), and (B) any Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; andCertificates.
(ii) Notwithstanding the provisions of Section 12(b)(i), any such Free Writing Prospectus described therein that contains only ABS Informational and Computational Materials Material, may be delivered by an the Underwriter to the Company not later than the later of (Aa) one (1) two business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (Bb) the date of first use of such Free Writing Prospectus.
(c) Each The Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such the Underwriter pursuant to Section 9(b12(b)(i) hereof or (ii) will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such the Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each The Underwriter represents and warrants to the Company that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company pursuant to Section 9(b12(b)(i) hereof or (ii) did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investor, include any untrue statement of a material fact or omit to state any material fact required to be stated therein necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and misleading; provided however, that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, no Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, Underwriter which information was not corrected by information subsequently supplied by the Company, Company to the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time of Sale sale to the applicable investor of the Offered Certificates (including without limitationwhich resulted in a loss, by means claim, damage or liability arising out of a contract of sale)based upon such misstatement or omission.
(e) The Company agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Any Free Writing Prospectus that constitutes an “"issuer free writing prospectus,” " as defined in Rule 433(h) under the Securities Act (each, an “"Issuer Free Writing Prospectus”");
(ii) Any Free Writing Prospectus or portion thereof delivered by an the Underwriter to the Company pursuant to Section 9(b12(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offeringhereof; and
(iviii) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e12(e) hereof by the Company shall may be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the final Prospectus relating to the Certificates pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and;
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv12(e)(iii) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus; and
(iv) the Company shall not be required to file (A) Issuer Information contained in any Free Writing Prospectus of an offering participant other than the Issuer, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (B) any Free Writing Prospectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does reflect the final terms thereof.
(g) Each The Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or it and distributed by or on behalf of such the Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g) hereof12(g), each the Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such the Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such the Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g12(e) and 9(h) hereof12(g), neither the Company nor any the Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriters Underwriter each agree that any Free Writing Prospectuses prepared by each such party the Underwriter shall contain the following legendlegend and any other legend that the Underwriter shall deem necessary or appropriate: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in the that registration statement and other documents the depositor has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity and this offering. You may get these documents for free by visiting XXXXX on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxx. Alternatively, the depositor, Deutsche Bank Securities, Inc., any underwriter or any dealer participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll toll-free 1-800-503294-4611 1322 or you e-mail a request to xx.xxxxxxxxxx_xxxxxxxxxxxx@xxxxxxxxxxxxxx.xxx. The securities may not be suitable for all investors. Banc of America Securities LLC and its affiliates may acquire, hold or sell positions in these securities, or in related derivatives, and may have an investment or commercial banking relationship with the depositor. The asset-backed securities referred to in these materials, and the asset pools backing them, are subject to modification or revision (including the possibility that one or more classes of securities may be split, combined or eliminated at any time prior to issuance or availability of a final prospectus) and are offered on a "when, as and if issued" basis. You understand that, when you are considering the purchase of these securities, a contract of sale will come into being no sooner than the date on which the relevant class has been priced and we have confirmed the allocation of securities to be made to you; any "indications of interest" expressed by emailing xxxxxxxxxx.xxxx@xx.xxxyou, and any "soft circles" generated by us, will not create binding contractual obligations for you or us. Because the asset-backed securities are being offered on a "when, as and if issued" basis, any such contract of sale will terminate, by its terms, without any further obligation or liability between us, if the securities themselves, or the particular class to which the contract relates, are not issued. Because the asset-backed securities are subject to modification or revision, any such contract also is conditioned upon the understanding that no material change will occur with respect to the relevant class of securities prior to the closing date. If a material change does occur with respect to such class, our contract will terminate, by its terms, without any further obligation or liability between us (the "Automatic Termination"). If an Automatic Termination occurs, we will provide you with revised offering materials reflecting the material change and give you an opportunity to purchase such class. To indicate your interest in purchasing the class, you must communicate to us your desire to do so within such timeframe as may be designated in connection with your receipt of the revised offering materials. The information contained in these materials may be based on assumptions regarding market conditions and other matters as reflected herein. Banc of America Securities LLC (the "Underwriter") makes no representation regarding the reasonableness of such assumptions or the likelihood that any such assumptions will coincide with actual market conditions or events, and these materials should not be relied upon for such purposes. The Underwriter and its affiliates, officers, directors, partners and employees, including persons involved in the preparation or issuance of these materials, may, from time to time, have long or short positions in, and buy and sell, the securities mentioned herein or derivatives thereof (including options). Information in these materials is current as of the date appearing on the material only. Information in these materials regarding any securities discussed herein supersedes all prior information regarding such securities. These materials are not to be construed as an offer to sell or the solicitation of any offer to buy any security in any jurisdiction where such an offer or solicitation would be illegal. This free writing prospectus is being delivered to you solely to provide you with information about the offering of the securities referred to in this free writing prospectus and to solicit an offer to purchase the securities, 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 securities until we have accepted your offer to purchase securities. You may withdraw your offer to purchase securities at any time prior to our acceptance of your offer. The information in this free writing prospectus supersedes information contained in any prior similar free writing prospectus relating to these securities prior to the time of your commitment to purchase. This free writing prospectus is not an offer to sell or solicitation of an offer to buy these securities in any state where such offer, solicitation or sale is not permitted. The Company and the Underwriter each agree that any Free Writing Prospectus prepared by the Underwriter and that is not an Issuer Free Writing Prospectus or that does not contain Issuer Information shall also contain the following legend: Neither the issuer of the securities nor any of its affiliates prepared, provided, approved or verified any statistical or numerical information presented herein, although that information may be based in part on loan level data provided by the issuer or its affiliates.”
(k) The Company and the Underwriters each Underwriter agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 12 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(l) In the event that the Company becomes aware, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Issuer Free Writing Prospectus”), the Company shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each The Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company Depositor that after the final Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor purchaser of Offered Certificates unless such information is preceded or accompanied by the final Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Banc of America Funding 2006-6 Trust)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no Underwriter shall convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i1) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii2) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iv3) constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no The Underwriter shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “"ABS informational and computational material,” " as defined in Item 1101(a) of Regulation AB under the Securities Act (“"ABS Informational and Computational Material”"), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(b) Each Underwriter shall deliver to the Company Depositor, no later than two business days prior to the date of first use thereof, (a) any Underwriter Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (each, an “Underwriter Free Writing Prospectus”) that contains any "issuer information", as defined in Rule 433(h) under the Securities Act(1) ("Issuer Information by no later than one Information") (1which the parties hereto agree includes, without limitation, Seller's Information) business day prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
and (ib) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to Certificates. Notwithstanding the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and
(ii) foregoing, any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an the Underwriter to the Company Depositor not later than the later of (Aa) one (1) two business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (Bb) the date of first use of such Free Writing Prospectus.
(c) Each Underwriter represents and warrants to the Company Depositor that the Free Writing Prospectuses to be furnished to the Company Depositor by such the Underwriter pursuant to Section 9(b8(b) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors purchasers of Offered Certificates by such the Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each Underwriter represents and warrants to the Company Depositor that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company Depositor pursuant to Section 9(b) hereof 8(b), when read together with all other Time of Sale Information, did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investorTime of Sale, and will not as of the Closing Date, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and misleading; provided however, that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, no Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, which information was not corrected by information Corrective Information subsequently supplied by the Company, Depositor or any Seller to the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time of Sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale)Sale.
(e) The Company Depositor agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Any Issuer Free Writing Prospectus”);
(ii) Any Free Writing Prospectus or portion thereof delivered by an the Underwriter to the Company Depositor pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed8(b);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company Depositor or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e8(e) hereof by the Company Depositor shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may shall be filed by the Company Depositor with the Commission within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may shall be filed by the Company Depositor with the Commission not later than the later of the due date for filing of the final Prospectus relating to the Offered Certificates pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and;
(iii) any Any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv8(e)(iii) hereof mayshall, if no payment has been made or consideration has been given by or on behalf of the Company Depositor for the Free Writing Prospectus or its dissemination, be filed by the Company Depositor with the Commission not later than four (4) business days after the Company Depositor becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus; and
(iv) The Depositor shall not be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any other offering participant other than the Depositor, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (B) any Free Writing Prospectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does not reflect the final terms thereof.
(g) Each Underwriter (with shall provide to the reasonable cooperation of the Company) shall file with the Commission Depositor any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or it and distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing ProspectusProspectus and the Depositor shall file such Free Writing Prospectus with the Commission,.
(h) Notwithstanding the provisions of Section 9(g) hereof8(g), each Underwriter (with shall provide to the reasonable cooperation of the Company) Depositor, who shall then file with the Commission Commission, any Free Writing Prospectus for which such the Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company Depositor or any other offering participant, not later than four (4) business days after such the Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g8(e) and 9(h) hereof8(g), neither the Company Depositor nor any the Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company Depositor and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party it shall contain the following legend: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in the that registration statement and other documents the depositor has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity trust and this offering. You may get these documents for free by visiting XXXXX EDGAR on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxxwww.sec.gov. Alternatively, the depositor, Deutsche Bank Securities, Inc.xxx xepositor, any underwriter or any dealer xxaler participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll free 1-800-503-4611 collect [________] or by emailing xxxxxxxxxx.xxxx@xx.xxx.”
(k) The Company and the Underwriters each agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 for a period of three (3) years following the initial bona fide offering of the Offered Certificates[________] at [________].
(l1) In the event that the Company Depositor becomes awareaware that, at any time between as of the Time of Sale or Sale, any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains contained any untrue statement of a material fact or omits omitted to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information)therein, in light of the circumstances under which they were made, not misleading misleading, when read in conjunction with the Time of Sale Information (such Issuer Free Writing Prospectus a “"Defective Issuer Free Writing Prospectus”"), the Company Depositor shall notify the Underwriters of such untrue statement or omission thereof within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company Depositor shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “"Corrected Issuer Free Writing Prospectus”). In ") and (2) in the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any Underwriter becomes aware that that, as of the Time of Sale, any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains contained any untrue statement of a material fact or omits omitted to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information)therein, in the light of the circumstances under which they were made, not misleading misleading, when read in conjunction with the Time of Sale Information, (such Underwriter Free Writing Prospectus, a “"Defective Underwriter Free Writing Prospectus” " and, together with a Defective Issuer Free Writing Prospectus, a “"Defective Free Writing Prospectus”"), such Underwriter shall notify the Company of such untrue statement or omission Depositor thereof within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the CompanyDepositor:
(iA) if If the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus with Corrective Information that corrects the material misstatement in or omission from the Defective Underwriter Free Writing Prospectus (such corrected Underwriter Free Writing Prospectus, a "Corrected Underwriter Free Writing Prospectus" and, together with a the Corrected Issuer Free Writing Prospectus, a “"Corrected Free Writing Prospectus”"), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(iiB) either (A) deliver Deliver the Corrected Free Writing Prospectus to each investor purchaser of an Offered Certificate which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or purchaser;
(BC) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each Notify such investor purchaser in a prominent prompt fashion that the any prior contract of sale with such investor purchaser has been terminated, and of such investor’s purchaser's rights as a result of termination of such agreement and agreement;
(yD) provide Provide such investor purchaser with an opportunity to affirmatively agree in writing to purchase the Offered Certificates enter into a new contract of sale on the terms described in the Corrected Free Writing Prospectus; and
(iiiE) comply Comply with any other requirements for reformation of the original contract of sale with such investorsale, as described in Section IV.A.2.c IV.2.c of the Commission’s 's Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(nl) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company Depositor that after the final Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates that contains Issuer Information to a prospective investor purchaser of Offered Certificates unless such information is preceded or accompanied by the final Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Jp Morgan Chase Commercial Mortgage Securities Corp)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of Long Beach Preliminary Prospectus, the Securities ActUnderwriters have not conveyed or delivered, no Underwriter and shall not convey or deliver deliver, any written communication communication, as defined in Rule 405 under the Act (other than the Prospectus) a “Written Communication”), to any person in connection with the initial offering of the Offered Underwritten Certificates, unless such written communication Written Communication (i) is has been, or is, made in reliance on and in conformity with Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iviii) constituted or constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by ). Notwithstanding anything to the Company contrary contained in advance. Without limitation therebythis Agreement, without the prior written consent of the Company (Depositor, which consent may be withheld for any reason)in its sole discretion, no Underwriter the Underwriters have not conveyed or delivered, and shall prepare, not convey or deliver deliver, in connection with the initial offering of the Offered Certificates Underwritten Certificates, any Free Writing Prospectus or “unless such Free Writing Prospectus contains only ABS informational Informational and computational material,” Computational Material, as defined in Item 1101(a) of Regulation AB under the Securities Act (“ABS Informational and Computational Material”); provided however, that any such Free Writing Prospectus may also contain a column showing the status of subscriptions for the Underwritten Certificates. The Underwriters have not conveyed or delivered, and shall not convey or deliver, any ABS Informational and Computational Material in reliance upon on Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter . Any Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(b) Each Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such any Underwriter or any affiliate thereof (each, is referred to as an “Underwriter Free Writing Prospectus.”
(i) [Reserved].
(ii) The Underwriters have not conveyed or delivered, and shall not convey or deliver, a Free Writing Prospectus that contains general information about the offering, the expected parameters of the Mortgage Pool, transaction parties known to the Depositor and the tax and SMMEA treatment of the Certificates (the “Issuer Free Writing Prospectus”) to any person or entity until the Depositor has notified the Underwriters that contains it has filed or will subsequently file the Issuer Free Writing Prospectus with the Commission. Thereafter, an Issuer Free Writing Prospectus may be used by the Underwriters solely in connection with the marketing of the Underwritten Certificates to institutional investors; provided however, the Underwriters shall not enter into any Issuer Information by “contract of sale” with any investor, within the meaning of Rule 159 under the Securities Act (a “Contract of Sale”) except as provided in Section 9(p).
(c) [Reserved].
(d) [Reserved].
(i) The Underwriters shall deliver to the Depositor, no later than one (1) business day prior to the date of first use thereof, each Underwriter Free Writing Prospectus that contains any “issuer information,” as defined in Rule 433(h) under the Securities Act and footnote 271 of Securities Act Release No. 33-8591 (“Issuer Information”) unless an Underwriter Free Writing Prospectus including such Issuer Information was previously delivered to the Depositor pursuant to this Section 9(e)(i) or was included in any Issuer Free Writing Prospectus or in the Long Beach Preliminary Prospectus.
(ii) Subject to Section 9(e)(i), to facilitate the filing thereof or such later date as may be agreed to by the Company; except that:
(i) Depositor, the Underwriters have provided, or shall provide, the Issuer Information contained in any Underwriter Free Writing Prospectus in a separate document from the portion of such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that which contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by no later information other than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; andIssuer Information.
(iiiii) Notwithstanding the provisions of Section 9(e)(i), any such Free Writing Prospectus described therein that contains only ABS Informational and Computational Materials may be delivered by an Underwriter the Underwriters to the Company Depositor not later than the later of (Aa) one (1) business day four Business Days prior to the due date for filing of the Long Beach Prospectus pursuant to Rule 424(b) under the Securities Act or (Bb) the date of first use of such Free Writing Prospectus.
(cf) Each Underwriter represents The Underwriters represent and warrants warrant to the Company Depositor that the Underwriter Free Writing Prospectuses furnished, or to be furnished furnished, to the Company Depositor by such Underwriter the Underwriters pursuant to Section 9(b9(e) hereof constitute, or will constitute constitute, all Underwriter Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such Underwriter the Underwriters in connection with its offer and sale of the Offered Underwritten Certificates.
(dg) Each Underwriter represents The Underwriters severally and warrants not jointly represent and warrant to the Company Depositor that each Underwriter Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it any of them to an investor in the Company pursuant to Section 9(b) hereof Underwritten Certificates did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investorits date, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and misleading; provided however, that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, no Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, which information (i) any Pool Error that was not corrected by information subsequently supplied by the Company, Depositor to the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period Underwriters prior to the Time of Sale to the applicable investor of investor, (ii) any information that is Issuer Information or contained in an Issuer Free Writing Prospectus, the Offered Certificates Long Beach Preliminary Prospectus or the Long Beach Prospectus, including any information incorporated therein by reference (including without limitation, other than information incorporated by means of a contract of sale)reference from the Underwriter Free Writing Prospectus) or (iii) any information that is contained in Pool Information.
(eh) The Company Depositor has filed, or agrees to file file, with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Any Issuer Free Writing Prospectus”);; and
(ii) Any Underwriter Free Writing Prospectus or portion thereof delivered by an Underwriter the Underwriters to the Company Depositor pursuant to Section 9(b9(e) hereof (but not any subsequent or, at the election of the Depositor, the portion of such Underwriter Free Writing Prospectus containing only information prepared by or on behalf which consists of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing ProspectusInformation.
(fi) Any Free Writing Prospectus required to be filed pursuant to Section 9(e9(h) hereof by the Company Depositor shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may be filed by the Company Depositor within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;; and
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains consists of only ABS Informational and Computational Material may be filed by the Company Depositor with the Commission not later than the later of the due date for filing of the Long Beach Prospectus relating to the Certificates pursuant to Rule 424(b) under the Securities Act or two (2) business days Business Days after the date of first use of such Free Writing Prospectus; and
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(gj) Each Notwithstanding the provisions of Section 9(h), the Depositor shall not be required to file (A) Issuer Information contained in any Underwriter (Free Writing Prospectus if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the reasonable cooperation Commission that relates to the offering of the CompanyUnderwritten Certificates, or (B) any Free Writing Prospectus or portion thereof that contains a description of the Underwritten Certificates or the offering of the Underwritten Certificates which does not reflect the final terms thereof.
(k) The Underwriters have filed, or shall file file, with the Commission any Underwriter Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that was or is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or distributed by or on behalf of such Underwriter any of the Underwriters in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Underwriter Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g) hereof, each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(il) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g9(h) and 9(h) hereof9(k), neither the Company Depositor nor any Underwriter the Underwriters shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(jm) The Company Depositor and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party it shall contain the following legend: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in the that registration statement and other documents the depositor issuer has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity depositor and this offering. You may get these documents for free by visiting XXXXX EXXXX on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxxwxx.xxx.xxx. Alternatively, the depositor, Deutsche Bank Securities, Inc.issuer, any underwriter or any dealer participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll toll-free 1-8008[xx-503xxx-4611 or by emailing xxxxxxxxxx.xxxx@xx.xxx.”xxxx]
(kn) The Company and Each Underwriter will comply with the Underwriters each agree record retention requirements of Rule 433(g) under the Securities Act relating to retain all Free Writing Prospectuses that they have used Prospectuses.
(i) Each Underwriter agrees to keep and that are not required to be filed pursuant to this Section 9 maintain, for a period of not less that three (3) years following the date of initial bona fide offering issuance of the Offered Underwritten Certificates, written records documenting, as to each investor in Underwritten Certificates, the Time of Sale and the date on which each Issuer Free Writing Prospectus and each Underwriter Free Writing Prospectus was conveyed to such investor.
(lii) In the event of any litigation or threatened litigation in connection with the marketing or sale of the Certificates, that in the good faith judgment of the Depositor is not based on a frivolous claim, against the Depositor or any of its affiliates with respect to the Certificates, each Underwriter shall, upon the reasonable request of the Depositor, make available to the Depositor copies of all records required to be maintained by it pursuant to Section 9(o)(i) and any Free Writing Prospectus required to be retained by it pursuant to Section 9(n).
(p) The Underwriters have not entered into, and will not enter into, any Contract of Sale with respect to the Underwritten Certificates with any investor, unless the Underwriters have delivered to such investor a copy of the Long Beach Preliminary Prospectus (which delivery may be made by electronic delivery).
(q) (i) In the event that the Company Depositor becomes aware, at any time between aware that the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Long Beach Preliminary Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information)therein, in light of the circumstances under which they were made, not misleading (such Long Beach Preliminary Prospectus, a “Defective Issuer Free Writing Long Beach Preliminary Prospectus”), the Company Depositor shall notify the Underwriters of such untrue statement or omission thereof within one business day Business Day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company Depositor shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus Corrected Long Beach Preliminary Prospectus.
(such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein ii) [Reserved].
(when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omissioniii) and the The Underwriters shall, if requested by the CompanyDepositor:
(iA) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses[Reserved];
(ii) either (AB) deliver the Corrected Free Writing Long Beach Preliminary Prospectus to each investor which received the Defective Free Writing Long Beach Preliminary Prospectus prior to entering into a contract Contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing ProspectusSale; and
(iiiC) [Reserved];
(D) [Reserved];
(E) comply with any other the requirements for reformation of the original contract Contract of sale with such investor, as Sale described in Section IV.A.2.c IV.2.c of the Commission’s Securities Offering Reform Act Release No. 33-8591.
(miv) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and If the Underwriters shall in good faith incur any costs to an investor in connection with the reformation process described in this Section 9(q) as a result of the contract of sale with the investora Defective Long Beach Preliminary Prospectus, the Company Depositor agrees to reimburse the Underwriters for such costs.; provided that the Underwriters shall use diligent efforts to mitigate such costs..
(nr) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company Depositor that after the Long Beach Prospectus is available available, the Underwriter shall not distribute any written information Written Communication concerning the Offered Underwritten Certificates to a prospective investor unless such information communication is preceded or accompanied by the final Long Beach Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Long Beach Mortgage Loan Trust 2006-1)
Offering Communications; Free Writing Prospectuses. It is understood that the Underwriters propose to offer the Offered Certificates for sale as set forth in this Agreement, the Time of Sale Information and the Prospectus. In connection with the offering of the Offered Certificates, the Underwriters may each prepare and provide to prospective investors Free Writing Prospectuses (aas defined below), or portions thereof, subject to the following conditions (to which such conditions each Underwriter agrees (provided that no Underwriter shall be responsible for any breach of the following conditions by any other Underwriter)):
(i) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of Prospectus, the Securities Act, no Underwriter Underwriters shall not convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i1) is made in reliance on Rule 134 under the Securities 1933 Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii2) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities 1933 Act, (iv3) is made in reliance on Rule 172 under the 1933 Act, (4) constitutes Time of Sale Information or a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) Prospectus that does not constitute Time of Sale Information, or (v5) constitutes such other written communication approved by the Company Depositor in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason)Depositor, no Underwriter the Underwriters shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus “computational materials” or “ABS term sheets” in reliance on the “Kxxxxx/PSA” no-action letters or any “ABS informational and computational material,” as defined in Item 1101(a) of Regulation AB under the Securities 1933 Act (“ABS Informational and Computational Material”), in reliance upon Rules 167 and 426 under the Securities 1933 Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(bii) Each Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (eachDepositor, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) business day prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
Depositor, any Free Writing Prospectus that was prepared by or on behalf of such Underwriter (ian “Underwriter Free Writing Prospectus”) and that contains any “issuer information,” as defined in Rule 433(h) under the 1933 Act and footnote 271 of the Commission’s Securities Offering Reform Release No. 33-8591 (“Issuer Information”) (which the parties hereto agree includes, without limitation, Mortgage Loan Seller Information), provided, that (a) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by Depositor no later than the later of (Ax) the date such final terms have been established for all classes of the Offered Certificates or and (By) the date of first use; and
, and (iib) any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an such Underwriter to the Company not Depositor no later than the later of (Ax) one (1) business day prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities 1933 Act or such later date as may be agreed to by the Depositor and (By) the date of first use of such Free Writing Prospectus.
(ciii) Each Underwriter represents and warrants to the Company Depositor that the Free Writing Prospectuses to be furnished to the Company Depositor by such Underwriter pursuant to Section 9(b4(ii) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such Underwriter in connection with its offer and sale of the Offered Certificates.
(div) Each Underwriter represents and warrants to the Company Depositor that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company Depositor pursuant to Section 9(b4(ii) hereof did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investorTime of Sale, and will not as of the Closing Date, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained thereintherein (when read in conjunction with the Time of Sale Information), in the light of the circumstances under which they were made, not misleading and that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Actmisleading; provided, no however, that such Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company to such UnderwriterInformation, the Mortgage Loan Seller Information or the Transaction Party Information), which information was not corrected by information Corrective Information subsequently supplied by the Company, the related Loan Seller Depositor or the related Transaction Party Mortgage Loan Seller to such Underwriter within a reasonable period of time prior to the Time of Sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale)Sale.
(ev) The Company Depositor agrees to file with the Commission the following:
(iA) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Each Issuer Free Writing Prospectus”);
(iiB) Any Free Writing Prospectus or portion thereof delivered by an any Underwriter to the Company Depositor pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed4(ii);
(iiiC) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and;
(ivD) Any Free Writing Prospectus for which the Company Depositor or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(vE) any Any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus. The Depositor is required to file such Free Writing Prospectuses with the Commission in electronic format and the Underwriters shall 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) or such other format as is acceptable to the Depositor, except to the extent that the Depositor, in its sole discretion, waives such requirements.
(fvi) Any Free Writing Prospectus required to be filed pursuant to Section 9(e4(v) hereof by the Company Depositor shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(iA) any Any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may shall be filed by the Company Depositor with the Commission within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(iiB) any Any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may shall be filed by the Company Depositor with the Commission not no later than the later of (i) the due date for filing of the final Prospectus relating to the Offered Certificates pursuant to Rule 424(b) under the Securities 1933 Act or and (ii) two (2) business days after the date of first use of such Free Writing Prospectus; and
(iiiC) any Any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv4(v)(D) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company Depositor for the Free Writing Prospectus or its dissemination, be filed by the Company Depositor with the Commission not later than four (4) business days after the Company Depositor becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(gvii) Each Underwriter (with the reasonable cooperation of the CompanyDepositor) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company Depositor pursuant to Section 9(b4(ii)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or it and distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(hviii) Notwithstanding the provisions of Section 9(g) hereof4(vii), each Underwriter (with the reasonable cooperation of the CompanyDepositor) shall file with the Commission any Free Writing Prospectus for which such Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company Depositor or any other offering participant, not later than four (4) business days after such Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(iix) Notwithstanding the provisions of Sections 9(e4(v) (other than 9(e)(iii4(v)(C)), 9(g4(vii) and 9(h4(viii), (A) hereof, neither the Company Depositor nor any Underwriter shall be required to file (A1) any Issuer Information contained in any Underwriter Free Writing Prospectus or Free Writing Prospectus of an Underwriter or any other offering participant other than the CompanyDepositor, if such information is included (including through incorporation by reference) in a prospectus or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B2) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof thereof, or (C3) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission, and (B) no Underwriter shall be required to file any Free Writing Prospectus to the extent that the information contained therein is included in a prospectus or Free Writing Prospectus previously filed that relates to the offering of the Offered Certificates.
(jx) The Company Depositor and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party it shall contain the following legend, or substantially equivalent legend that complies with Rule 433 of the 1933 Act: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission SEC (File No. Number 333-193376167764) for the offering to which this communication free writing prospectus relates. Before you invest, you should read the prospectus in the registration statement and other documents the depositor has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity and this offering. You may get these documents for free by visiting XXXXX EXXXX on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxxwxx.xxx.xxx. Alternatively, the depositor, Deutsche Bank Securities, Inc., any underwriter or any dealer participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll free 1-800000-503000-4611 0000 or by emailing xxxxxxxxxx.xxxx@xx.xxxemail to pxxxxxxxxx@xx.xxx.”
(kxi) The Company Depositor and the Underwriters each Underwriter agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 4, and that have not been filed, for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(lxii) In (A) If the event that the Company Depositor becomes awareaware that, at any time between as of the Time of Sale or any Subsequent Time as of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading misleading, or conflicted or conflicts with the information contained in the Registration Statement (a “Defective Issuer Free Writing Prospectus”), the Company Depositor shall notify the Underwriters of such untrue statement or omission or conflict within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company Depositor shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement misstatement, omission or omission conflict in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company that after the Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor unless such information is preceded or accompanied by the final Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Morgan Stanley Capital I Trust 2012-C4)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities 1933 Act, no Underwriter shall convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities 1933 Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, 1933 Act or (iviii) constitutes Rule 159 Information or a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company Depositor (which consent may be withheld for any reason), no Underwriter shall prepare, convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “"ABS informational and computational material,” " as defined in Item 1101(a) of Regulation AB under the Securities 1933 Act (“"ABS Informational and Computational Material”"), in reliance upon Rules 167 and 426 under the Securities Act, 1933 Act other than materials provided to it by Credit Suisse Securities (USA) LLC or the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the CompanyDepositor.
(b) Each Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (eachDepositor, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one two (12) business day days prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
Depositor, (i) any Free Writing Prospectus that was prepared by or on behalf of such Underwriter (an "Underwriter Free Writing Prospectus") and that contains any "issuer information," as defined in Rule 433(h) under the 1933 Act and footnote 271 of the Commission's Securities Offering Reform Release No. 33-8591 ("Issuer Information") (which the parties hereto agree includes, without limitation, Mortgage Loan Sellers' Information), and (ii) any Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to Certificates. Notwithstanding the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and
(ii) foregoing, any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an Underwriter to the Company Depositor not later than the later of (A) one two (12) business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities 1933 Act or such later date as may be agreed to by the Depositor or (B) the date of first use of such Free Writing Prospectus. It is acknowledged and agreed that the Rule 159 Information does not include any Underwriter Free Writing Prospectus.
(c) Each Underwriter represents and warrants to the Company Depositor that the Free Writing Prospectuses to be furnished to the Company Depositor by such Underwriter pursuant to Section 9(b8(b) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each Underwriter represents and warrants to the Company Depositor that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company Depositor pursuant to Section 9(b8(b) hereof did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investor, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements contained thereintherein (when read in conjunction with the Rule 159 Information), in light of the circumstances under which they were made, not misleading and misleading; provided however, that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, no Underwriter makes any representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company Depositor or any Mortgage Loan Seller to such Underwriter, the Loan Seller Information or the Transaction Party Information, which information was not corrected by information subsequently supplied by the Company, the related Depositor or any Mortgage Loan Seller or the related Transaction Party to such Underwriter within a reasonable period of time prior to the Time of Sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale)Sale.
(e) The Company Depositor agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Any Issuer Free Writing Prospectus”);
(ii) Any Free Writing Prospectus or portion thereof delivered by an Underwriter to the Company Depositor pursuant to Section 9(b8(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);hereof; and
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company Depositor or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
. Notwithstanding the foregoing, the Depositor shall not be required to file (v1) Issuer Information contained in any Underwriter Free Writing Prospectus or Free Writing Prospectus of any other offering participant other than the Depositor, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (2) any ABS Informational and Computational Material that is not being treated as a Free Writing ProspectusProspectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does not reflect the final terms thereof.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e8(e) hereof by the Company Depositor shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may be filed by the Company Depositor within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company Depositor with the Commission not later than the later of the due date for filing of the final Prospectus relating to the Certificates pursuant to Rule 424(b) under the Securities 1933 Act or two (2) business days after the date of first use of such Free Writing Prospectus; and;
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv8(e)(iii) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company Depositor for the Free Writing Prospectus or its dissemination, be filed by the Company Depositor with the Commission not later than four (4) business days after the Company Depositor becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus; and
(iv) the Depositor shall not be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Depositor, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (B) any Free Writing Prospectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does not reflect the final terms thereof.
(g) Each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission Commission, or provide to the Depositor at least two (2) business days prior to the time such filing is required, any Free Writing Prospectus (other than a Free Writing Prospectus required that is used or referred to be delivered to the Company pursuant to Section 9(b)) that by it and distributed by or on behalf of such Underwriter which is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g8(g) hereof, each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company Depositor or any other offering participant, not later than four (4) business days after such the Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g8(e) and 9(h8(g) hereof, neither the Company Depositor nor any Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company Depositor and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party it shall contain the following legend, or substantially equivalent legend that complies with Rule 433 of the 1933 Act: “The depositor "We have filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) for the offering to which this communication relates. Before you invest, you should read the prospectus in the registration statement and other documents the depositor has filed with the Securities and Exchange Commission for more complete information about the depositorus, the issuing entity trust and this offering. You may get these documents for free by visiting XXXXX on the Securities and Exchange Commission website web site at xxx.xxx.xxx. Alternatively, the depositor, Deutsche Bank Securities, Inc., any underwriter or any dealer participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll free 1-800-503-4611 0.000.000.0000 or by emailing xxxxxxxxxx.xxxx@xx.xxxemail to the following address: xxxxx.xxxxx@xxxx.xxx.”"
(k) The Company Depositor and the Underwriters each agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 8 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(li) In the event that the Company Depositor becomes awareaware that, at any time between as of the Time of Sale or Sale, any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Rule 159 Information), in light of the circumstances under which they were made, not misleading (a “"Defective Issuer Free Writing Prospectus”"), the Company Depositor shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company Depositor shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “"Corrected Issuer Free Writing Prospectus”"). .
(ii) In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any Underwriter becomes aware that that, as of the Time of Sale, any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains contained any untrue statement of a material fact or omits omitted to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Rule 159 Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “"Defective Free Writing Prospectus”"), such Underwriter shall notify the Company Depositor of such untrue statement or omission within one business day after discovery discovery.
(unless the Company was the party that informed such Underwriter of such untrue statement or omissioniii) and the The Underwriters shall, if requested by the CompanyDepositor:
(i1) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “"Corrected Free Writing Prospectus”"), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A2) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or ;
(B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x3) notify in writing each such investor in a prominent fashion that the prior contract of sale with such the investor has been terminated, and of such the investor’s 's rights as a result of termination of such agreement and agreement;
(y4) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii5) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s 's Securities Offering Reform Release No. 33-8591.
(miv) In the event that a the Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and or in the defective information was not event that any Underwriter Supplied Information, Free Writing Prospectus contains any inaccurate Issuer Information supplied by the Depositor or any Mortgage Loan Seller Information or Transaction Party Information to the related Underwriter, and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company Depositor agrees to reimburse the Underwriters for such costs; provided that, before incurring such costs, the Underwriters first permits the Depositor access to the applicable investor and an opportunity to attempt to mitigate such costs through direct negotiation with such investor.
(nv) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company Depositor that after the final Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor unless such information is preceded or accompanied by the final Prospectus.
(m) Each Underwriter covenants with the Depositor that it will make available to the Depositor, upon reasonable request, such personnel as are familiar with the Underwriter's compliance procedures for the purpose of answering questions concerning the Underwriter's practices and procedures for the preparation and dissemination of written materials concerning the Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
Appears in 1 contract
Samples: Underwriting Agreement (Credit Suisse First Boston Mortgage Securities Corp)
Offering Communications; Free Writing Prospectuses. (a) The Underwriters may prepare and provide to prospective investors Free Writing Prospectuses (as defined below), 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(R) or Microsoft Excel(R) format and not in PDF, except to the extent that the Depositor, in its sole discretion, waives such requirements, subject to the following conditions (to which such conditions each Underwriter agrees (provided that no Underwriter shall be responsible for any breach of the following conditions by any other Underwriter)):
(i) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of Prospectus, the Securities Act, no Underwriter Underwriters shall not convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i1) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii2) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iv3) constitutes Time of Sale Information or a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advanceProspectus that does not constitute Time of Sale Information. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no Underwriter The Underwriters shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “materials in reliance on any "ABS informational and computational material,” " as defined in Item 1101(a) of Regulation AB under the Securities Act (“"ABS Informational and Computational Material”"), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(bii) Each Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (eachDepositor, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) two business day days prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
Depositor and that allows the Depositor to satisfy the requirements of Rule 433 under the Securities Act, (ia) any Free Writing Prospectus that was prepared by or on behalf of such Underwriter (an "Underwriter Free Writing Prospectus") and that contains any "issuer information," as defined in Rule 433(h) under the Securities Act and footnote 271 of the Commission's Securities Offering Reform Release No. 33-8591 ("Issuer Information") (which the parties hereto agree includes, without limitation, Mortgage Loan Seller Information), and (b) any Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to Certificates. Notwithstanding the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and
(ii) foregoing, any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an Underwriter to the Company Depositor not later than the later of (A) one (1) two business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or such later date as may be agreed to by the Company or (B) the date of first use of such Free Writing Prospectus.
(ciii) Each Underwriter represents and warrants to the Company Depositor that the Free Writing Prospectuses to be furnished to the Company Depositor by such Underwriter pursuant to Section 9(b8(a)(ii) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such Underwriter in connection with its offer and sale of the Offered Certificates.
(div) Each Underwriter represents and warrants to the Company Depositor that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company Depositor pursuant to Section 9(b8(a)(ii) hereof did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investorTime of Sale, and will not as of the Specified Delivery Date, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained thereintherein (when read in conjunction with the Time of Sale Information), in light of the circumstances under which they were made, not misleading and misleading; provided however, that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, no Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, which information was not corrected by information Corrective Information subsequently supplied by the Company, the related Depositor or any Mortgage Loan Seller or the related Transaction Party to such Underwriter within a reasonable period of time prior to the Time of Sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale)Sale.
(ev) The Company Depositor agrees to file with the Commission the following:
(iA) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Any Issuer Free Writing Prospectus”);
(iiB) Any Free Writing Prospectus or portion thereof delivered by an any Underwriter to the Company Depositor pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed8(a)(ii);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(ivC) Any Free Writing Prospectus for which the Company Depositor or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
. Notwithstanding the foregoing, the Depositor shall not be required to file (v1) Issuer Information contained in any Underwriter Free Writing Prospectus or Free Writing Prospectus of any other offering participant other than the Depositor, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (2) any ABS Informational and Computational Material that is not being treated as a Free Writing ProspectusProspectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does not reflect the final terms thereof.
(fvi) Any Free Writing Prospectus required to be filed pursuant to Section 9(e8(a)(v)(C) hereof by the Company Depositor shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(iA) any Any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may shall be filed by the Company Depositor with the Commission within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(iiB) any Any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may shall be filed by the Company Depositor with the Commission not later than the later of the due date for filing of the final Prospectus relating to the Certificates pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and
(iiiC) any Any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv8(a)(v)(C) hereof mayshall, if no payment has been made or consideration has been given by or on behalf of the Company Depositor for the Free Writing Prospectus or its dissemination, be filed by the Company Depositor with the Commission not later than four (4) business days after the Company Depositor becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(gvii) Each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission Commission, or provide to the Depositor at least 2 Business Days prior to the time such filing is required, any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or it and distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(hviii) Notwithstanding the provisions of Section 9(g) hereof8(a)(vii), each Underwriter (with the reasonable cooperation of the Company) shall file file, or cause to be filed, with the Commission any Free Writing Prospectus for which such Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company Depositor or any other offering participant, not later than four (4) business days after such Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(iix) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g8(a)(v) and 9(h) hereof8(a)(vii), neither the Company Depositor nor any Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission, and no Underwriter shall be required to file any Free Writing Prospectus to the extent that the information contained therein is included in a prospectus or Free Writing Prospectus previously filed that relates to the offering of the Certificates.
(jx) The Company Depositor and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party it shall contain the following legend, or substantially equivalent legend that complies with Rule 433 of the Securities Act: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in the that registration statement and other documents the depositor has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity trust, and this offering. You may get these documents for free by visiting XXXXX EDGAR on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxxwww.sec.gov. Alternatively, the depositor, Deutsche Bank Securities, Inc.xxx xepositor, any underwriter or any dealer xxaler participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll toll-free 1-800-503-4611 or by emailing xxxxxxxxxx.xxxx@xx.xxx[__________].”
(kxi) The Company Depositor and the Underwriters each Underwriter agree to retain all Free Writing Prospectuses Prospectus that they have used and that are not required to be filed pursuant to this Section 9 8 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(lxii) (A) In the event that the Company Depositor becomes awareaware that, at any time between as of the Time of Sale or Sale, any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “"Defective Issuer Free Writing Prospectus”"), the Company Depositor shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company Depositor shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “"Corrected Issuer Free Writing Prospectus”"). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company that after the Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor unless such information is preceded or accompanied by the final Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Greenwich Capital Commercial Funding Corp)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of Long Beach Preliminary Prospectus, the Securities ActUnderwriters have not conveyed or delivered, no Underwriter and shall not convey or deliver deliver, any written communication communication, as defined in Rule 405 under the Act (other than the Prospectus) a “Written Communication”), to any person in connection with the initial offering of the Offered Underwritten Certificates, unless such written communication Written Communication (i) is has been, or is, made in reliance on and in conformity with Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iviii) constituted or constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by ). Notwithstanding anything to the Company contrary contained in advance. Without limitation therebythis Agreement, without the prior written consent of the Company (Depositor, which consent may be withheld for any reason)in its sole discretion, no Underwriter the Underwriters have not conveyed or delivered, and shall prepare, not convey or deliver deliver, in connection with the initial offering of the Offered Certificates Underwritten Certificates, any Free Writing Prospectus or “unless such Free Writing Prospectus contains only ABS informational Informational and computational material,” Computational Material, as defined in Item 1101(a) of Regulation AB under the Securities Act (“ABS Informational and Computational Material”); provided however, that any such Free Writing Prospectus may also contain a column showing the status of subscriptions for the Underwritten Certificates. The Underwriters have not conveyed or delivered, and shall not convey or deliver, any ABS Informational and Computational Material in reliance upon on Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter . Any Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(b) Each Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such any Underwriter or any affiliate thereof (each, is referred to as an “Underwriter Free Writing ProspectusProspectus .”
(b) that contains any Issuer Information by no later than one (1) business day prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
(i) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and[Reserved].
(ii) any such The Underwriters have not conveyed or delivered, and shall not convey or deliver, a Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an Underwriter general information about the offering, the expected parameters of the Mortgage Pool, transaction parties known to the Company not later than Depositor and the later of (A) one (1) business day prior to the due date for filing tax and SMMEA treatment of the Prospectus pursuant to Rule 424(b) under the Securities Act or (B) the date of first use of such Free Writing Prospectus.
(c) Each Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such Underwriter pursuant to Section 9(b) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each Underwriter represents and warrants to the Company that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company pursuant to Section 9(b) hereof did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investor, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, no Underwriter makes any representation or warranty to the extent such misstatements or omissions are based upon or arise out of an untrue statement or omission in the Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, which information was not corrected by information subsequently supplied by the Company, the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time of Sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale).
(e) The Company agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Issuer Free Writing Prospectus”);
(ii) Any to any person or entity until the Depositor has notified the Underwriters that it has filed or will subsequently file the Issuer Free Writing Prospectus or portion thereof delivered by an Underwriter to the Company pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishingCommission. Thereafter, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e) hereof by the Company shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(g) Each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is may be used or referred to by such Underwriter or distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g) hereof, each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g) and 9(h) hereof, neither the Company nor any Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party shall contain the following legend: “The depositor filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) for the offering to which this communication relates. Before you invest, you should read the prospectus in the registration statement and other documents the depositor has filed with the Securities and Exchange Commission for more complete information about the depositor, the issuing entity and this offering. You may get these documents for free by visiting XXXXX on the Securities and Exchange Commission website at xxx.xxx.xxx. Alternatively, the depositor, Deutsche Bank Securities, Inc., any underwriter or any dealer participating in this offering will arrange to send you the prospectus after filing if you request it by calling toll free 1-800-503-4611 or by emailing xxxxxxxxxx.xxxx@xx.xxx.”
(k) The Company and the Underwriters each agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(l) In the event that the Company becomes aware, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Issuer Free Writing Prospectus”), the Company shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor solely in connection with the reformation marketing of the Underwritten Certificates to institutional investors; provided however, the Underwriters shall not enter into any “contract of sale sale” with the any investor, within the Company agrees to reimburse meaning of Rule 159 under the Underwriters for such costsSecurities Act (a “Contract of Sale”) except as provided in Section 9(p).
(nc) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors[Reserved].
(o) Each Underwriter covenants with the Company that after the Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor unless such information is preceded or accompanied by the final Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Long Beach Mortgage Loan Trust 2006-Wl3)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no the Underwriter shall not convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iviii) constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no the Underwriter shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “"ABS informational and computational material,” " as defined in Item 1101(a) of Regulation AB under the Securities Act (“"ABS Informational and Computational Material”"), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(bi) Each The Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (eachCompany, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) two business day days prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
thereof, (iA) any such Free Writing Prospectus prepared by or on behalf of the Underwriter that contains any "issuer information," as defined in Rule 433(h) under the Act ("Issuer Information"), and (B) any Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; andCertificates.
(ii) Notwithstanding the provisions of Section 12(b)(i), any such Free Writing Prospectus described therein that contains only ABS Informational and Computational Materials Material, may be delivered by an the Underwriter to the Company not later than the later of (Aa) one (1) two business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (Bb) the date of first use of such Free Writing Prospectus.
(c) Each The Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such the Underwriter pursuant to Section 9(b12(b)(i) hereof or (ii) will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such the Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each The Underwriter represents and warrants to the Company that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company pursuant to Section 9(b12(b)(i) hereof or (ii) did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investor, include any untrue statement of a material fact or omit to state any material fact required to be stated therein necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Actmisleading; provided, no however, that the Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, Underwriter which information was not corrected by information subsequently supplied by the Company, Company to the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time of Sale sale to the applicable investor of the Offered Certificates (including without limitationwhich resulted in a loss, by means claim, damage or liability arising out of a contract of sale)based upon such misstatement or omission.
(e) The Company agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Any Free Writing Prospectus that constitutes an “"issuer free writing prospectus,” " as defined in Rule 433(h) under the Securities Act (each, an “"Issuer Free Writing Prospectus”");
(ii) Any Free Writing Prospectus or portion thereof delivered by an the Underwriter to the Company pursuant to Section 9(b12(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offeringhereof; and
(iviii) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e12(e) hereof by the Company shall may be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the final Prospectus relating to the Certificates pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and;
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv12(e)(iii) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus; and
(iv) the Company shall not be required to file (A) Issuer Information contained in any Free Writing Prospectus of an offering participant other than the Issuer, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (B) any Free Writing Prospectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does reflect the final terms thereof.
(g) Each The Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or it and distributed by or on behalf of such the Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g) hereof12(g), each the Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such the Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such the Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g12(e) and 9(h) hereof12(g), neither the Company nor any the Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriters Underwriter each agree that any Free Writing Prospectuses prepared by each such party the Underwriter shall contain the following legendlegend and any other legend that the Underwriter shall deem necessary or appropriate: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in the that registration statement and other documents the depositor has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity and this offering. You may get these documents for free by visiting XXXXX on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxx. Alternatively, the depositor, Deutsche Bank Securities, Inc., any underwriter or any dealer participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll toll-free 1-800-503294-4611 1322 or you e-mail a request to xx.xxxxxxxxxx_xxxxxxxxxxxx@xxxxxxxxxxxxxx.xxx. The securities may not be suitable for all investors. Banc of America Securities LLC and its affiliates may acquire, hold or sell positions in these securities, or in related derivatives, and may have an investment or commercial banking relationship with the depositor. The asset-backed securities referred to in these materials, and the asset pools backing them, are subject to modification or revision (including the possibility that one or more classes of securities may be split, combined or eliminated at any time prior to issuance or availability of a final prospectus) and are offered on a "when, as and if issued" basis. You understand that, when you are considering the purchase of these securities, a contract of sale will come into being no sooner than the date on which the relevant class has been priced and we have confirmed the allocation of securities to be made to you; any "indications of interest" expressed by emailing xxxxxxxxxx.xxxx@xx.xxxyou, and any "soft circles" generated by us, will not create binding contractual obligations for you or us. Because the asset-backed securities are being offered on a "when, as and if issued" basis, any such contract of sale will terminate, by its terms, without any further obligation or liability between us, if the securities themselves, or the particular class to which the contract relates, are not issued. Because the asset-backed securities are subject to modification or revision, any such contract also is conditioned upon the understanding that no material change will occur with respect to the relevant class of securities prior to the closing date. If a material change does occur with respect to such class, our contract will terminate, by its terms, without any further obligation or liability between us (the "Automatic Termination"). If an Automatic Termination occurs, we will provide you with revised offering materials reflecting the material change and give you an opportunity to purchase such class. To indicate your interest in purchasing the class, you must communicate to us your desire to do so within such timeframe as may be designated in connection with your receipt of the revised offering materials. The information contained in these materials may be based on assumptions regarding market conditions and other matters as reflected herein. Banc of America Securities LLC (the "Underwriter") makes no representation regarding the reasonableness of such assumptions or the likelihood that any such assumptions will coincide with actual market conditions or events, and these materials should not be relied upon for such purposes. The Underwriter and its affiliates, officers, directors, partners and employees, including persons involved in the preparation or issuance of these materials, may, from time to time, have long or short positions in, and buy and sell, the securities mentioned herein or derivatives thereof (including options). Information in these materials is current as of the date appearing on the material only. Information in these materials regarding any securities discussed herein supersedes all prior information regarding such securities. These materials are not to be construed as an offer to sell or the solicitation of any offer to buy any security in any jurisdiction where such an offer or solicitation would be illegal. This free writing prospectus is being delivered to you solely to provide you with information about the offering of the securities referred to in this free writing prospectus and to solicit an offer to purchase the securities, 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 securities until we have accepted your offer to purchase securities. You may withdraw your offer to purchase securities at any time prior to our acceptance of your offer. The information in this free writing prospectus supersedes information contained in any prior similar free writing prospectus relating to these securities prior to the time of your commitment to purchase. This free writing prospectus is not an offer to sell or solicitation of an offer to buy these securities in any state where such offer, solicitation or sale is not permitted. The Company and the Underwriter each agree that any Free Writing Prospectus prepared by the Underwriter and that is not an Issuer Free Writing Prospectus or that does not contain Issuer Information shall also contain the following legend: Neither the issuer of the securities nor any of its affiliates prepared, provided, approved or verified any statistical or numerical information presented herein, although that information may be based in part on loan level data provided by the issuer or its affiliates.”
(k) The Company and the Underwriters each Underwriter agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 12 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(l) In the event that the Company becomes aware, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Issuer Free Writing Prospectus”), the Company shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each The Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company Depositor that after the final Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor purchaser of Offered Certificates unless such information is preceded or accompanied by the final Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Banc of America Funding 2006-G Trust)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no Underwriter shall convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iv) constitutes a “"free writing prospectus,” " as defined in Rule 405 under the Securities Act (a “"Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance"). Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no Underwriter shall prepare, convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “"ABS informational and computational material,” " as defined in Item 1101(a) of Regulation AB under the Securities Act (“"ABS Informational and Computational Material”"), in reliance upon Rules 167 and 426 under the Securities Act, Act other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(b) Each Underwriter shall deliver to the Company Company:
(i) any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (each, an “"Underwriter Free Writing Prospectus”") that contains any Issuer Information by no later than one two (12) business day days prior to the date of first use thereof or such later date as may be agreed to by the Company,; except that:and
(iii) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and
(ii) . Notwithstanding the foregoing, any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an Underwriter to the Company not later than the later of (A) one (1) two business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (B) the date of first use of such Free Writing Prospectus.
(c) . Each Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such Underwriter pursuant to Section 9(b) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such Underwriter in connection with its offer and sale of the Offered Certificates.
(dc) Each Underwriter represents and warrants to the Company that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company pursuant to Section 9(b) hereof did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investor, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and that each such Free Writing Prospectus complied with Rules 164 164, 167, 426 and 433 under the Securities Act; providedprovided however, that no Underwriter makes any representation or warranty to the extent such misstatements or omissions are based upon or arise out of an untrue statement or omission in the Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, which information was not corrected by information subsequently supplied by the Company, the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time of Sale sale to the applicable such investor of the Offered Certificates (including without limitation, by means of a contract of sale).
(ed) The Company agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Any Free Writing Prospectus that constitutes an “"issuer free writing prospectus,” " as defined in Rule 433(h) under the Securities Act (each, an “"Issuer Free Writing Prospectus”");
(ii) Any Free Writing Prospectus or portion thereof delivered by an Underwriter to the Company pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(fe) Any Free Writing Prospectus required to be filed pursuant to Section 9(e) hereof by the Company shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(gf) Each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(hg) Notwithstanding the provisions of Section 9(g) hereof, each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(ih) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g) and 9(h9(g) hereof, neither the Company nor any Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the a Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (Cc) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(ji) The Company and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party shall contain the following legend: “"The depositor filed a registration statement (including a prospectus) with the Securities and Exchange Commission (SEC File No. 333-193376333-______) for the offering to which this communication relates. Before you invest, you should read the prospectus in the registration statement and other documents the depositor has filed with the Securities and Exchange Commission for more complete information about the depositor, the issuing entity and this offering. You may get these documents for free by visiting XXXXX EDGAR on the Securities and Exchange Exxxxxge Commission website web site at xxx.xxx.xxxwww.sec.gov. Alternatively, the depositor, Deutsche Bank Securities, Inc.txx xxxxxxxxr, any underwriter or any dealer participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll free 1[1.800.503-800-503-4611 4611] or by emailing xxxxxxxxxx.xxxx@xx.xxxemail to the following address:[insert email address].”"
(kj) The Company and the Underwriters each agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(lk) In the event that the Company becomes aware, at any time between the Time of Sale or any Subsequent a Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “"Defective Issuer Free Writing Prospectus”"), the Company shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company Issuer of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “"Corrected Issuer Free Writing Prospectus”"). In the event that, at any time between the Time of Sale or any Subsequent a Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “"Defective Underwriter Free Writing Prospectus” " and, together with a Defective Issuer Free Writing Prospectus, a “"Defective Free Writing Prospectus”"), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the and:
(i) The Underwriters shall, if requested by the Company:
(iA) if If the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “"Corrected Free Writing Prospectus”"), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(iiB) either Either (Ai) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (Bii) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s 's rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iiiC) comply Comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s 's Securities Offering Reform Release No. 33-8591.
(ml) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs; provided that, before incurring such costs, the Underwriters first permit the Company access to the applicable investor and an opportunity to attempt to mitigate such costs through direct negotiation with such investor.
(nm) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s 's compliance procedures for the purpose of answering questions concerning the Underwriter’s 's practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(on) Each Underwriter covenants with the Company that after the final Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor unless such information is preceded or accompanied by the final Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Deutsche Mortgage & Asset Receiving Corp)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities 1933 Act, no Underwriter shall convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i1) is made in reliance on Rule 134 under the Securities 1933 Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii2) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities 1933 Act, or (iv3) constitutes Time of Sale Information or a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advanceProspectus that does not constitute Time of Sale Information. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no The Underwriter shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “"ABS informational and computational material,” " as defined in Item 1101(a) of Regulation AB under the Securities 1933 Act (“"ABS Informational and Computational Material”"), in reliance upon Rules 167 and 426 under the Securities 1933 Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(b) Each Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (eachCompany, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) business day prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
thereof, (ia) any such Free Writing Prospectus prepared by or on behalf of the Underwriter that contains any Issuer Information or Mortgage Loan Seller Information, and (b) any Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to Certificates. Notwithstanding the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and
(ii) foregoing, any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an the Underwriter to the Company not later than the later of (Aa) one (1) business day prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities 1933 Act or (Bb) the date of first use of such Free Writing Prospectus.
(c) Each Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such the Underwriter pursuant to Section 9(b10(b) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors purchasers of Offered Certificates by such the Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each Underwriter represents and warrants to the Company that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company pursuant to Section 9(b10(b) hereof did hereof, when viewed together with all other Time of Sale Information, does not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investorTime of Sale, and will not as of the Closing Date, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and misleading; provided however, that each the Underwriter makes no representation with respect to any such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, no Underwriter makes that is misleading or inaccurate as a result of any representation misleading or warranty to the extent such misstatements inaccurate Issuer Information or omissions are based upon or arise out of an untrue statement or omission in the Issuer Mortgage Loan Seller Information supplied by the Company or any Seller to such the Underwriter, the Loan Seller Information or the Transaction Party Information, which information was not corrected by information Corrective Information subsequently supplied by the Company, Company or any Seller to the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time of Sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale)Sale.
(e) The Company agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Any Issuer Free Writing Prospectus”);
(ii) Any Free Writing Prospectus or portion thereof delivered by an the Underwriter to the Company pursuant to Section 9(b10(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offeringhereof; and
(iviii) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e10(b) hereof by the Company shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may shall be filed by the Company with the Commission within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may shall be filed by the Company with the Commission not later than the later of the due date for filing of the final Prospectus relating to the Offered Certificates pursuant to Rule 424(b) under the Securities 1933 Act or two (2) business days after the date of first use of such Free Writing Prospectus; and;
(iii) any Any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv10(e)(iii) hereof mayshall, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus; and
(iv) The Company shall not be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any other offering participant other than the Company, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (B) any Free Writing Prospectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does not reflect the final terms thereof.
(g) Each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or and distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus. Each Underwriter shall deliver such Free Writing Prospectus to the Company, not later than one business day prior to filing of such Free Writing Prospectus with the Commission.
(h) Notwithstanding the provisions of Section 9(g) hereof10(g), each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such the Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such the Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of the Free Writing Prospectus. Each Underwriter shall deliver such Free Writing ProspectusProspectus to the Company, not later than one business day prior to filing of such Free Writing Prospectus with the Commission.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g10(e) and 9(h) hereof10(g), neither the Company Issuer nor any the Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party it shall contain substantially the following legend: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in the that registration statement and other documents the depositor has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity trust and this offering. You may get these documents for free by visiting XXXXX EDGAR on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxxwww.sec.gov. Alternatively, the depositor, Deutsche Bank Securities, Inc.xxx xepositor, any underwriter or any dealer xxaler participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll toll-free 1-800-503-4611 [insert phone number] or by emailing xxxxxxxxxx.xxxx@xx.xxxa request to [insert email address].”
(k) The Company and the Underwriters each agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 10 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(li) In the event that the Company any Underwriter becomes awareaware that, at any time between as of the Time of Sale or Sale, any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus prepared by or any Issuer Information contains on behalf of the Underwriter and delivered to a purchaser of an Offered Certificate contained any untrue statement of a material fact or omits omitted to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information)therein, in the light of the circumstances under which they were made, not misleading (a “Defective Issuer such Free Writing Prospectus”, a "Defective Free Writing Prospectus"), the Company Underwriter shall notify the Underwriters of such untrue statement or omission Company thereof within one business day after discovery discovery.
(except for any Underwriter ii) Provided that informed if the Company of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Defective Free Writing Prospectus that corrects the material misstatement or omission in the Defective was an Issuer Free Writing Prospectus (such corrected or contained Issuer Free Writing ProspectusInformation, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(iA) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare Prepare a Free Writing Prospectus with Corrective Information that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer such corrected Free Writing Prospectus, a “"Corrected Free Writing Prospectus”"), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(iiB) either (A) deliver Deliver the Corrected Free Writing Prospectus to each investor purchaser of an Offered Certificate which received the Defective Free Writing Prospectus prior to entering into a contract of sale with an agreement to purchase any Offered Certificates;
(C) Notify such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor purchaser in a prominent fashion that the prior contract of sale with such investor agreement to purchase Offered Certificates has been terminated, and of such investor’s purchaser's rights as a result of termination of such agreement and agreement; and
(yD) provide Provide such investor purchaser with an opportunity to affirmatively agree in writing to purchase the such Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company that after the Final Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor purchaser of Offered Certificates unless such information is preceded or accompanied by the final Final Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Ge Commercial Mortgage Corp)
Offering Communications; Free Writing Prospectuses. It is understood that the Underwriters propose to offer the Offered Certificates for sale as set forth in this Agreement, the Time of Sale Information and the Prospectus. In connection with the offering of the Offered Certificates, the Underwriters may each prepare and provide to prospective investors Free Writing Prospectuses, or portions thereof, subject to the following conditions (ato which such conditions each Underwriter agrees (provided that no Underwriter shall be responsible for any breach of the following conditions by any other Underwriter)):
(i) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of Prospectus, the Securities Act, no Underwriter Underwriters shall not convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i1) is made in reliance on Rule 134 under the Securities 1933 Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii2) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities 1933 Act, (iv3) is made in reliance on Rule 172 under the 1933 Act, (4) constitutes Time of Sale Information or a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) Prospectus that does not constitute Time of Sale Information, or (v5) constitutes such other written communication approved by the Company Depositor in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason)Depositor, no Underwriter the Underwriters shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus “computational materials” or “ABS term sheets” in reliance on the “Kxxxxx/PSA” no-action letters or any “ABS informational and computational material,” as defined in Item 1101(a) of Regulation AB under the Securities 1933 Act (“ABS Informational and Computational Material”), in reliance upon Rules 167 and 426 under the Securities 1933 Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(bii) Each Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (eachDepositor, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) business day prior to the date of first use thereof or such later date as may be agreed to by the CompanyDepositor, any Free Writing Prospectus that was prepared by or on behalf of such Underwriter (an “Underwriter Free Writing Prospectus”) and that contains any “issuer information,” as defined in Rule 433(h) under the 1933 Act and footnote 271 of the Commission’s Securities Offering Reform Release No. 33-8591 (“Issuer Information”) (which the parties hereto agree includes, without limitation, Mortgage Loan Seller Information); except that:
provided that (ia) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by Depositor no later than the later of (Ax) the date such final terms have been established for all classes of the Offered Certificates or and (By) the date of first use; and
, and (iib) any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an such Underwriter to the Company not Depositor no later than the later of (Ax) one (1) business day prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities 1933 Act or such later date as may be agreed to by the Depositor and (By) the date of first use of such Free Writing Prospectus.
(ciii) Each Underwriter represents and warrants to the Company Depositor that the Free Writing Prospectuses to be furnished to the Company Depositor by such Underwriter pursuant to Section 9(b4(ii) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such Underwriter in connection with its offer and sale of the Offered Certificates.
(div) Each Underwriter represents and warrants to the Company Depositor that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company Depositor pursuant to Section 9(b4(ii) hereof did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investorTime of Sale, and will not as of the Closing Date, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained thereintherein (when read in conjunction with the Time of Sale Information), in the light of the circumstances under which they were made, not misleading and that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Actmisleading; provided, no however, that such Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company to such UnderwriterInformation, the Mortgage Loan Seller Information or the Transaction Party Information), which information was not corrected by information Corrective Information subsequently supplied by the Company, the related Loan Seller Depositor or the related Transaction Party Mortgage Loan Seller to such Underwriter within a reasonable period of time prior to the Time of Sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale)Sale.
(ev) The Company Depositor agrees to file with the Commission the following:
(iA) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Each Issuer Free Writing Prospectus”);
(iiB) Any Free Writing Prospectus or portion thereof delivered by an any Underwriter to the Company Depositor pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed4(ii);
(iiiC) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and;
(ivD) Any Free Writing Prospectus for which the Company Depositor or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(vE) any Any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus. The Depositor is required to file such Free Writing Prospectuses with the Commission in electronic format and the Underwriters shall 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) or such other format as is acceptable to the Depositor, except to the extent that the Depositor, in its sole discretion, waives such requirements.
(fvi) Any Free Writing Prospectus required to be filed pursuant to Section 9(e4(v) hereof by the Company Depositor shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(iA) any Any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may shall be filed by the Company Depositor with the Commission within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(iiB) any Any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may shall be filed by the Company Depositor with the Commission not no later than the later of (i) the due date for filing of the final Prospectus relating to the Offered Certificates pursuant to Rule 424(b) under the Securities 1933 Act or and (ii) two (2) business days after the date of first use of such Free Writing Prospectus; and
(iiiC) any Any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv4(v)(D) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company Depositor for the Free Writing Prospectus or its dissemination, be filed by the Company Depositor with the Commission not later than four (4) business days after the Company Depositor becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(gvii) Each Underwriter (with the reasonable cooperation of the CompanyDepositor) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company Depositor pursuant to Section 9(b4(ii)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or it and distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(hviii) Notwithstanding the provisions of Section 9(g) hereof4(vii), each Underwriter (with the reasonable cooperation of the CompanyDepositor) shall file with the Commission any Free Writing Prospectus for which such Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company Depositor or any other offering participant, not later than four (4) business days after such Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(iix) Notwithstanding the provisions of Sections 9(e4(v) (other than 9(e)(iii4(v)(C)), 9(g4(vii) and 9(h4(viii), (A) hereof, neither the Company Depositor nor any Underwriter shall be required to file (A1) any Issuer Information contained in any Underwriter Free Writing Prospectus or Free Writing Prospectus of an Underwriter or any other offering participant other than the CompanyDepositor, if such information is included (including through incorporation by reference) in a prospectus or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B2) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof thereof, or (C3) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission, and (B) no Underwriter shall be required to file any Free Writing Prospectus to the extent that the information contained therein is included in a prospectus or Free Writing Prospectus previously filed that relates to the offering of the Offered Certificates.
(jx) The Company Depositor and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party it shall contain the following legend, or substantially equivalent legend that complies with Rule 433 of the 1933 Act: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission SEC (File No. Number 333-193376177707) for the offering to which this communication free writing prospectus relates. Before you invest, you should read the prospectus in the registration statement and other documents the depositor has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity and this offering. You may get these documents for free by visiting XXXXX EXXXX on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxxwxx.xxx.xxx. Alternatively, the depositor, Deutsche Bank Securities, Inc., any underwriter or any dealer participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll free 1-800000-503000-4611 0000 or by emailing xxxxxxxxxx.xxxx@xx.xxxemail to dx.Xxxxxxxxxx_Xxxxxxxx@xxxx.xxx.”
(kxi) The Company Depositor and the Underwriters each Underwriter agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 4, and that have not been filed, for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(lxii) In (A) If the event that the Company Depositor becomes awareaware that, at any time between as of the Time of Sale or any Subsequent Time as of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in the light of the circumstances under which they were made, not misleading misleading, or conflicted or conflicts with the information contained in the Registration Statement (a “Defective Issuer Free Writing Prospectus”), the Company Depositor shall notify the Underwriters of such untrue statement or omission or conflict within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company Depositor shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement misstatement, omission or omission conflict in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company that after the Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor unless such information is preceded or accompanied by the final Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2013-C11)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no Underwriter shall convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i1) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii2) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iv3) constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no The Underwriter shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “"ABS informational and computational material,” " as defined in Item 1101(a) of Regulation AB under the Securities Act (“"ABS Informational and Computational Material”"), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(b) Each Underwriter shall deliver to the Company Depositor, no later than two business days prior to the date of first use thereof, (a) any Underwriter Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (each, an “Underwriter Free Writing Prospectus”) that contains any "issuer information", as defined in Rule 433(h) under the Securities Act(1) ("Issuer Information by no later than one Information") (1which the parties hereto agree includes, without limitation, Seller's Information) business day prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
and (ib) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to Certificates. Notwithstanding the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and
(ii) foregoing, any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an the Underwriter to the Company Depositor not later than the later of (Aa) one (1) two business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (Bb) the date of first use of such Free Writing Prospectus.
(1) Such definition of "issuer information" is further clarified by footnote 271 to SEC Release No. 33,8591. See 70 Fed. Reg. 44,722, at 44,751 (August 3, 2005).
(c) Each Underwriter represents and warrants to the Company Depositor that the Free Writing Prospectuses to be furnished to the Company Depositor by such the Underwriter pursuant to Section 9(b8(b) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors purchasers of Offered Certificates by such the Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each Underwriter represents and warrants to the Company Depositor that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company Depositor pursuant to Section 9(b) hereof 8(b), when read together with all Time of Sale Information, did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investorTime of Sale, and will not as of the Closing Date, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and misleading; provided however, that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, no Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, which information was not corrected by information Corrective Information subsequently supplied by the CompanyDepositor or any Seller to the Underwriter far enough in advance of the Time of Sale (in any event, no later than two business days prior to the related Loan Seller or Time of Sale) so that the related Transaction Party Underwriter could have provided the Corrective Information to such Underwriter a reasonable period any prospective purchaser prior to the Time of Sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale)for such prospective purchaser.
(e) The Company Depositor agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Any Issuer Free Writing Prospectus”);
(ii) Any Free Writing Prospectus or portion thereof delivered by an the Underwriter to the Company Depositor pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed8(b);; and
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company Depositor or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e8(e) hereof by the Company Depositor shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may shall be filed by the Company Depositor with the Commission within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may shall be filed by the Company Depositor with the Commission not later than the later of the due date for filing of the final Prospectus relating to the Offered Certificates pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and;
(iii) any Any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv8(e)(iii) hereof mayshall, if no payment has been made or consideration has been given by or on behalf of the Company Depositor for the Free Writing Prospectus or its dissemination, be filed by the Company Depositor with the Commission not later than four (4) business days after the Company Depositor becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus; and
(iv) The Depositor shall not be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any other offering participant other than the Depositor, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (B) any Free Writing Prospectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does not reflect the final terms thereof.
(g) Each Underwriter (with shall provide to the reasonable cooperation of the Company) shall file with the Commission Depositor any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or it and distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing ProspectusProspectus and the Depositor shall file such Free Writing Prospectus with the Commission.
(h) Notwithstanding the provisions of Section 9(g) hereof8(g), each Underwriter (with shall provide to the reasonable cooperation of the Company) Depositor, who shall then file with the Commission Commission, any Free Writing Prospectus for which such the Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company Depositor or any other offering participant, not later than four (4) business days after such the Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g8(e) and 9(h) hereof8(g), neither the Company Depositor nor any the Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company Depositor and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party it shall contain a legend substantially in the following legendform: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in the that registration statement and other documents the depositor has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity trust and this offering. You may get these documents for free by visiting XXXXX EDGAR on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxxwww.sec.gov. Alternatively, the depositor, Deutsche Bank Securities, Inc.thx xxxositor, any underwriter or any dealer xxxxer participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll free 1-800866-503400-4611 7834 or by emailing xxxxxxxxxx.xxxx@xx.xxx.”
(k) The Company and the Underwriters each agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 for a period of three (3) years following the initial bona fide offering of the Offered CertificatesAvinash Bappanad at bappanad_avixxxx@xxxxxxxx.com.
(l1) In the event that the Company becomes awareXx xxx xxxxx xxat txx Xxxxxxxxx xxxxxxx xxxxx xxat, at any time between as of the Time of Sale or Sale, any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains contained any untrue statement of a material fact or omits omitted to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information)therein, in light of the circumstances under which they were made, not misleading misleading, when read in conjunction with the Time of Sale Information (such Issuer Free Writing Prospectus a “"Defective Issuer Free Writing Prospectus”"), the Company Depositor shall notify the Underwriters of such untrue statement or omission thereof within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company Depositor shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “"Corrected Issuer Free Writing Prospectus”). In ") and (2) in the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any Underwriter becomes aware that that, as of the Time of Sale, any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains contained any untrue statement of a material fact or omits omitted to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information)therein, in the light of the circumstances under which they were made, not misleading misleading, when read in conjunction with the Time of Sale Information, (such Underwriter Free Writing Prospectus, a “"Defective Underwriter Free Writing Prospectus” " and, together with a Defective Issuer Free Writing Prospectus, a “"Defective Free Writing Prospectus”"), such Underwriter shall notify the Company of such untrue statement or omission Depositor thereof within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the CompanyDepositor:
(iA) if If the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus with Corrective Information that corrects the material misstatement in or omission from the Defective Underwriter Free Writing Prospectus (such corrected Un derwriter Free Writing Prospectus, a "Corrected Underwriter Free Writing Prospectus" and, together with a the Corrected Issuer Free Writing Prospectus, a “"Corrected Free Writing Prospectus”"), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(iiB) either (A) deliver Deliver the Corrected Free Writing Prospectus to each investor purchaser of an Offered Certificate which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or purchaser;
(BC) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each Notify such investor purchaser in a prominent prompt fashion that the any prior contract of sale with such investor purchaser has been terminated, and of such investor’s purchaser's rights as a result of termination of such agreement and agreement;
(yD) provide Provide such investor purchaser with an opportunity to affirmatively agree in writing to purchase the Offered Certificates enter into a new contract of sale on the terms described in the Corrected Free Writing Prospectus; and
(iiiE) comply Comply with any other requirements for reformation of the original contract of sale with such investorsale, as described in Section IV.A.2.c IV.2.c of the Commission’s 's Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(nl) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company Depositor that after the final Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates that contains Issuer Information to a prospective investor purchaser of Offered Certificates unless such information is preceded or accompanied by the final Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (J.P. Morgan Chase Commercial Mortgage Securities Trust 2006-Ldp8)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no Underwriter shall convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i1) is made in reliance on Rule 134 under the Securities Act, (ii2) is made in reliance on Rule 172 under the Securities Act, (iii3) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iv4) constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no Underwriter The Underwriters shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “ABS informational and computational material,” as defined in Item 1101(a) of Regulation AB under the Securities Act (“ABS Informational and Computational Material”), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(b) Each Underwriter shall deliver to the Company Depositor, no later than two business days prior to the date of first use thereof, (a) any Underwriter Free Writing Prospectus prepared by or on behalf of such Underwriter that contains any “issuer information”, as defined in Rule 433(h) under the Securities Act1 (“Issuer Information”) (which the parties hereto agree includes, without limitation, the Sellers’ Information) and (b) any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (each, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) business day prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
(i) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to Certificates. Notwithstanding the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and
(ii) foregoing, any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an Underwriter the Underwriters to the Company Depositor not later than the later of (Aa) one (1) two business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (Bb) the date of first use of such Free Writing Prospectus.
(c) Each Underwriter represents and warrants to the Company Depositor that the Free Writing Prospectuses to be furnished to the Company Depositor by such the Underwriter pursuant to Section 9(b8(b) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors purchasers of Offered Certificates by such the Underwriter in connection with its offer and sale of the Offered Certificates. 1 Such definition of “issuer information” is further clarified by footnote 271 to SEC Release No. 33-8591. See 70 Fed. Reg. 44,722, at 44,751 (August 3, 2005).
(d) Each Underwriter represents and warrants to the Company Depositor that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company Depositor pursuant to Section 9(b) hereof 8(b), when read together with all other Time of Sale Information, did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investorTime of Sale, and will not as of the Closing Date, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and misleading; provided however, that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, no Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, which information was not corrected by information Corrective Information subsequently supplied by the Company, Depositor or any Seller to the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time of Sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale)Sale.
(e) The Company Depositor agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Any Issuer Free Writing Prospectus”);
(ii) Any Free Writing Prospectus or portion thereof delivered by an the Underwriter to the Company Depositor pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed8(b);; and
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company Depositor or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e8(e) hereof by the Company Depositor shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may shall be filed by the Company Depositor with the Commission within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may shall be filed by the Company Depositor with the Commission not later than the later of the due date for filing of the final Prospectus relating to the Offered Certificates pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and;
(iii) any Any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv8(e)(iii) hereof mayshall, if no payment has been made or consideration has been given by or on behalf of the Company Depositor for the Free Writing Prospectus or its dissemination, be filed by the Company Depositor with the Commission not later than four (4) business days after the Company Depositor becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus; and
(iv) The Depositor shall not be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any other offering participant other than the Depositor, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (B) any Free Writing Prospectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does not reflect the final terms thereof.
(g) Each Underwriter (with shall provide to the reasonable cooperation of the Company) shall file with the Commission Depositor any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or it and distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing ProspectusProspectus and the Depositor shall file such Free Writing Prospectus with the Commission.
(h) Notwithstanding the provisions of Section 9(g) hereof8(g), each Underwriter (with shall provide to the reasonable cooperation of the Company) Depositor, who shall then file with the Commission Commission, any Free Writing Prospectus for which such the Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company Depositor or any other offering participant, not later than four (4) business days after such the Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g8(e) and 9(h) hereof8(g), neither the Company Depositor nor any Underwriter the Underwriters shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company Depositor and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party it shall contain a legend substantially in the following legendform: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in the that registration statement and other documents the depositor has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity depositor and this offering. You may get these documents for free by visiting XXXXX on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxx. Alternatively, the depositor, Deutsche Bank Securities, Inc., any underwriter or any dealer participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll free 10-800000-503000-4611 0000 or by emailing xxxxxxxxxx.xxxx@xx.xxx.”
(k) The Company and the Underwriters each agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 for a period of three (3) years following the initial bona fide offering of the Offered Certificatesxxxx-xxxxxxxxxx@xxxxxxxx.xxx.
(l1) In the event that the Company Depositor becomes awareaware that, at any time between as of the Time of Sale or Sale, any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains contained any untrue statement of a material fact or omits omitted to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information)therein, in the light of the circumstances under which they were made, not misleading misleading, when read in conjunction with the Time of Sale Information (such Issuer Free Writing Prospectus a “Defective Issuer Free Writing Prospectus”), the Company Depositor shall notify the Underwriters of such untrue statement or omission thereof within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company Depositor shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In ) and (2) in the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any Underwriter becomes aware that that, as of the Time of Sale, any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains contained any untrue statement of a material fact or omits omitted to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information)therein, in the light of the circumstances under which they were made, not misleading misleading, when read in conjunction with the Time of Sale Information (such Underwriter Free Writing Prospectus, a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission Depositor thereof within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the CompanyDepositor:
(iA) if If the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus with Corrective Information that corrects the material misstatement in or omission from the Defective Underwriter Free Writing Prospectus (such corrected Underwriter Free Writing Prospectus, a “Corrected Underwriter Free Writing Prospectus” and, together with a the Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(iiB) either (A) deliver Deliver the Corrected Free Writing Prospectus to each investor purchaser of an Offered Certificate which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or purchaser;
(BC) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each Notify such investor purchaser in a prominent prompt fashion that the any prior contract of sale with such investor purchaser has been terminated, and of such investorpurchaser’s rights as a result of termination of such agreement and agreement;
(yD) provide Provide such investor purchaser with an opportunity to affirmatively agree in writing to purchase the Offered Certificates enter into a new contract of sale on the terms described in the Corrected Free Writing Prospectus; and
(iiiE) comply Comply with any other requirements for reformation of the original contract of sale with such investorsale, as described in Section IV.A.2.c IV.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(nl) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company Depositor that after the final Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates that contains Issuer Information to a prospective investor purchaser of Offered Certificates unless such information is preceded or accompanied by the final Prospectus.
(m) The Depositor and each Underwriter agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 8 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
Appears in 1 contract
Samples: Underwriting Agreement (J.P. Morgan Chase Commercial Mortgage Securities Trust 2013-C16)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no Underwriter shall convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, (iv) constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no Underwriter shall prepare, convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “ABS informational and computational material,” as defined in Item 1101(a) of Regulation AB under the Securities Act (“ABS Informational and Computational Material”), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(b) Each Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (each, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) business day prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
(i) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and
(ii) any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an Underwriter to the Company not later than the later of (A) one (1) business day prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (B) the date of first use of such Free Writing Prospectus.
(c) Each Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such Underwriter pursuant to Section 9(b) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each Underwriter represents and warrants to the Company that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company pursuant to Section 9(b) hereof did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investor, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, however, no Underwriter makes any representation or warranty to the extent such misstatements or omissions are based upon or arise out of an untrue statement or omission in the Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, which information was not corrected by information subsequently supplied by the Company, the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time of Sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale).
(e) The Company agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Issuer Free Writing Prospectus”);
(ii) Any Free Writing Prospectus or portion thereof delivered by an Underwriter to the Company pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e) hereof by the Company shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(g) Each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g) hereof, each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g) and 9(h) hereof, neither the Company nor any Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party shall contain the following legend: “The depositor filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) for the offering to which this communication relates. Before you invest, you should read the prospectus in the registration statement and other documents the depositor has filed with the Securities and Exchange Commission for more complete information about the depositor, the issuing entity and this offering. You may get these documents for free by visiting XXXXX on the Securities and Exchange Commission website at xxx.xxx.xxx. Alternatively, the depositor, Deutsche Bank Securities, Inc., any underwriter or any dealer participating in this offering will arrange to send you the prospectus after filing if you request it by calling toll toll-free 1-800-503-4611 or by emailing xxxxxxxxxx.xxxx@xx.xxx.”
(k) The Company and the Underwriters each agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(l) In the event that the Company becomes aware, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Issuer Free Writing Prospectus”), the Company shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company that after the Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor unless such information is preceded or accompanied by the final Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (COMM 2014-Ubs3 Mortgage Trust)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no the Underwriter shall not convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iviii) constitutes a “"free writing prospectus,” " as defined in Rule 405 under the Securities Act (a “"Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance"). Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no the Underwriter shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “"ABS informational and computational material,” " as defined in Item 1101(a) of Regulation AB under the Securities Act (“"ABS Informational and Computational Material”"), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(bi) Each The Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (eachCompany, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) two business day days prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
thereof, (iA) any such Free Writing Prospectus prepared by or on behalf of the Underwriter that contains any "issuer information," as defined in Rule 433(h) under the Act ("Issuer Information"), and (B) any Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; andCertificates.
(ii) Notwithstanding the provisions of Section (b)(i), any such Free Writing Prospectus described therein that contains only ABS Informational and Computational Materials may be delivered by an the Underwriter to the Company not later than the later of (Aa) one (1) two business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (Bb) the date of first use of such Free Writing Prospectus.
(c) Each The Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such the Underwriter pursuant to Section 9(b11(b)(i) hereof or (ii) will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such the Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each The Underwriter represents and warrants to the Company that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company pursuant to Section 9(b11(b)(i) hereof or (ii) did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investor, include any untrue statement of a material fact or omit to state any material fact required to be stated therein necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and misleading; provided however, that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, no Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, Underwriter which information was not corrected by information subsequently supplied by the Company, Company to the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time of Sale sale to the applicable investor of the Offered Certificates (including without limitationwhich resulted in a loss, by means claim, damage or liability arising out of a contract of sale)or based upon such misstatement or omission.
(e) The Company agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Any Free Writing Prospectus that constitutes an “"issuer free writing prospectus,” " as defined in Rule 433(h) under the Securities Act (each, an “Issuer Free Writing Prospectus”)Act;
(ii) Any Free Writing Prospectus or portion thereof delivered by an the Underwriter to the Company pursuant to Section 9(b11(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offeringhereof; and
(iviii) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e11(e) hereof by the Company shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the final Prospectus relating to the Certificates pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and;
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv11(e)(3) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus; and
(iv) the Company shall not be required to file (A)Issuer Information contained in any Free Writing Prospectus of an offering participant other than the Company, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (B) any Free Writing Prospectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does reflect the final terms thereof.
(g) Each The Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or it and distributed by or on behalf of such the Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g) hereof11(g), each the Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such the Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such the Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g11(e) and 9(h) hereof11(g), neither the Company nor any the Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriters Underwriter each agree that any Free Writing Prospectuses prepared by each such party it shall contain the following legend: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in the that registration statement and other documents the depositor has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity depositor and this offering. You may get these documents for free by visiting XXXXX EDGAR on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxxwww.sec.gov. Alternatively, the depositor, Deutsche Bank Securities, Inc.xxx xepositor, any underwriter or any dealer underwritex xx xxx xxaler participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll toll-free 1-800-503294-4611 or by emailing xxxxxxxxxx.xxxx@xx.xxx1322.”
(k) The Company and the Underwriters each agree to retain all Underwriter agrex xx xxxxxx xxl Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 11 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(l) In the event that the Company becomes aware, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Issuer Free Writing Prospectus”), the Company shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company that after the Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor unless such information is preceded or accompanied by the final Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Banc of America Alternative Loan Trust 2007-1)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities 1933 Act, no Underwriter shall convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities 1933 Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, 1933 Act or (iviii) constitutes Rule 159 Information or a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company Depositor (which consent may be withheld for any reason), no Underwriter shall prepare, convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “"ABS informational and computational material,” " as defined in Item 1101(a) of Regulation AB under the Securities 1933 Act (“"ABS Informational and Computational Material”"), in reliance upon Rules 167 and 426 under the Securities Act, 1933 Act other than materials provided to it by Credit Suisse Securities (USA) LLC or the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the CompanyDepositor.
(b) Each Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (eachDepositor, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one two (12) business day days prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
Depositor, (i) any Free Writing Prospectus that was prepared by or on behalf of such Underwriter (an "Underwriter Free Writing Prospectus") and that contains any "issuer information," as defined in Rule 433(h) under the 1933 Act and footnote 271 of the Commission's Securities Offering Reform Release No. 33-8591 ("Issuer Information") (which the parties hereto agree includes, without limitation, Mortgage Loan Seller Information), and (ii) any Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to Certificates. Notwithstanding the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and
(ii) foregoing, any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an Underwriter to the Company Depositor not later than the later of (A) one two (12) business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities 1933 Act or such later date as may be agreed to by the Depositor or (B) the date of first use of such Free Writing Prospectus.
(c) Each Underwriter represents and warrants to the Company Depositor that the Free Writing Prospectuses to be furnished to the Company Depositor by such Underwriter pursuant to Section 9(b8(b) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each Underwriter represents and warrants to the Company Depositor that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company Depositor pursuant to Section 9(b8(b) hereof did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investor, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements contained thereintherein (when read in conjunction with the Rule 159 Information), in light of the circumstances under which they were made, not misleading and misleading; provided however, that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, no Underwriter makes any representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company Depositor or any Mortgage Loan Seller to such Underwriter, the Loan Seller Information or the Transaction Party Information, which information was not corrected by information subsequently supplied by the Company, the related Depositor or any Mortgage Loan Seller or the related Transaction Party to such Underwriter within a reasonable period of time prior to the Time of Sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale)Sale.
(e) The Company Depositor agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Any Issuer Free Writing Prospectus”);
(ii) Any Free Writing Prospectus or portion thereof delivered by an Underwriter to the Company Depositor pursuant to Section 9(b8(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);hereof; and
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company Depositor or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
. Notwithstanding the foregoing, the Depositor shall not be required to file (v1) Issuer Information contained in any Underwriter Free Writing Prospectus or Free Writing Prospectus of any other offering participant other than the Depositor, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (2) any ABS Informational and Computational Material that is not being treated as a Free Writing ProspectusProspectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does not reflect the final terms thereof.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e8(e) hereof by the Company Depositor shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may be filed by the Company Depositor within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company Depositor with the Commission not later than the later of the due date for filing of the final Prospectus relating to the Certificates pursuant to Rule 424(b) under the Securities 1933 Act or two (2) business days after the date of first use of such Free Writing Prospectus; and;
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv8(e)(iii) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company Depositor for the Free Writing Prospectus or its dissemination, be filed by the Company Depositor with the Commission not later than four (4) business days after the Company Depositor becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus; and
(iv) the Depositor shall not be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Depositor, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (B) any Free Writing Prospectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does not reflect the final terms thereof.
(g) Each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission Commission, or provide to the Depositor at least two (2) business days prior to the time such filing is required, any Free Writing Prospectus (other than a Free Writing Prospectus required that is used or referred to be delivered to the Company pursuant to Section 9(b)) that by it and distributed by or on behalf of such Underwriter which is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g8(g) hereof, each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company Depositor or any other offering participant, not later than four (4) business days after such the Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g8(e) and 9(h8(g) hereof, neither the Company Depositor nor any Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company Depositor and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party it shall contain the following legend, or substantially equivalent legend that complies with Rule 433 of the 1933 Act: “The depositor "We have filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) for the offering to which this communication relates. Before you invest, you should read the prospectus in the registration statement and other documents the depositor has filed with the Securities and Exchange Commission for more complete information about the depositorus, the issuing entity trust and this offering. You may get these documents for free by visiting XXXXX EDGAR on the Securities and Exchange Commission website web site at xxx.xxx.xxxwww.sec.gxx. AlternativelyXlternatively, the depositor, Deutsche Bank Securities, Inc., any underwriter or any dealer participating deaxxx xxxxxxxpating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll free 1-800-503-4611 1.800.221.1037 or by emailing xxxxxxxxxx.xxxx@xx.xxxemail to the following address: barry.polen@csfb.com.”"
(k) The Company Depositor and the Underwriters each agree to retain xxxx xxxxx xx xxxxxx all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 8 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(li) In the event that the Company Depositor becomes awareaware that, at any time between as of the Time of Sale or Sale, any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Rule 159 Information), in light of the circumstances under which they were made, not misleading (a “"Defective Issuer Free Writing Prospectus”"), the Company Depositor shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company Depositor shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “"Corrected Issuer Free Writing Prospectus”"). .
(ii) In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any Underwriter becomes aware that that, as of the Time of Sale, any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains contained any untrue statement of a material fact or omits omitted to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Rule 159 Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “"Defective Free Writing Prospectus”"), such Underwriter shall notify the Company Depositor of such untrue statement or omission within one business day after discovery discovery.
(unless the Company was the party that informed such Underwriter of such untrue statement or omissioniii) and the The Underwriters shall, if requested by the CompanyDepositor:
(ia) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “"Corrected Free Writing Prospectus”"), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (Ab) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or ;
(B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (xc) notify in writing each such investor in a prominent fashion that the prior contract of sale with such the investor has been terminated, and of such the investor’s 's rights as a result of termination of such agreement and agreement;
(yd) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iiie) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s 's Securities Offering Reform Release No. 33-8591.
. '' (miv) In the event that a the Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied InformationProspectus, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company Depositor agrees to reimburse the Underwriters for such costs; provided that, before incurring such costs, the Underwriters first permits the Depositor access to the applicable investor and an opportunity to attempt to mitigate such costs through direct negotiation with such investor.
(niv) Each Underwriter covenants with the Company that, upon reasonable request, Depositor that after the final Prospectus is available the 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..
(m) Each Underwriter covenants with the Depositor that it will make available to the Company Depositor such personnel as are familiar with the Underwriter’s 's compliance procedures for the purpose of answering questions concerning the Underwriter’s 's practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company that after the Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor unless such information is preceded or accompanied by the final Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Credit Suisse Commercial Mortgage Trust Series 2006-C4)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no Underwriter shall convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, (iv) constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no Underwriter shall prepare, convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “ABS informational and computational material,” as defined in Item 1101(a) of Regulation AB under the Securities Act (“ABS Informational and Computational Material”), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead UnderwriterNatixis and Xxxxx) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(b) Each Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (each, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) business day prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
(i) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and
(ii) any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an Underwriter to the Company not later than the later of (A) one (1) business day prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (B) the date of first use of such Free Writing Prospectus.
(c) Each Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such Underwriter pursuant to Section 9(b) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each Underwriter represents and warrants to the Company that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company pursuant to Section 9(b) hereof did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investor, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, however, no Underwriter makes any representation or warranty to the extent such misstatements or omissions are based upon or arise out of an untrue statement or omission in the Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, which information was not corrected by information subsequently supplied by the Company, the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time time of Sale sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale).
(e) The Company agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Issuer Free Writing Prospectus”);
(ii) Any Free Writing Prospectus or portion thereof delivered by an Underwriter to the Company pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e) hereof by the Company shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(g) Each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g) hereof, each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g) and 9(h) hereof, neither the Company nor any Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party shall contain the following legend: “The depositor filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376184376) for the offering to which this communication relates. Before you invest, you should read the prospectus in the registration statement and other documents the depositor has filed with the Securities and Exchange Commission for more complete information about the depositor, the issuing entity and this offering. You may get these documents for free by visiting XXXXX on the Securities and Exchange Commission website at xxx.xxx.xxx. Alternatively, the depositor, Deutsche Bank Securities, Inc., any underwriter or any dealer participating in this offering will arrange to send you the prospectus after filing if you request it by calling toll toll-free 1-800-503-4611 or by emailing xxxxxxxxxx.xxxx@xx.xxx.”
(k) The Company and the Underwriters each agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(l) In the event that the Company becomes aware, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Issuer Free Writing Prospectus”), the Company shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company Issuer of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company Issuer shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company that after the Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor unless such information is preceded or accompanied by the final Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (COMM 2013-Lc13 Mortgage Trust)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no the Underwriter shall not convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iviii) constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no the Underwriter shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “"ABS informational and computational material,” " as defined in Item 1101(a) of Regulation AB under the Securities Act (“"ABS Informational and Computational Material”"), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(bi) Each The Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (eachCompany, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) two business day days prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
thereof, (iA) any such Free Writing Prospectus prepared by or on behalf of the Underwriter that contains any "issuer information," as defined in Rule 433(h) under the Act ("Issuer Information"), and (B) any Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; andCertificates.
(ii) Notwithstanding the provisions of Section 12(b)(i), any such Free Writing Prospectus described therein that contains only ABS Informational and Computational Materials Material, may be delivered by an the Underwriter to the Company not later than the later of (Aa) one (1) two business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (Bb) the date of first use of such Free Writing Prospectus.
(c) Each The Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such the Underwriter pursuant to Section 9(b12(b)(i) hereof or (ii) will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such the Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each The Underwriter represents and warrants to the Company that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company pursuant to Section 9(b12(b)(i) hereof or (ii) did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investor, include any untrue statement of a material fact or omit to state any material fact required to be stated therein necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Actmisleading; provided, no however, that the Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, Underwriter which information was not corrected by information subsequently supplied by the Company, Company to the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time of Sale sale to the applicable investor of the Offered Certificates (including without limitationwhich resulted in a loss, by means claim, damage or liability arising out of a contract of sale)based upon such misstatement or omission.
(e) The Company agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Any Free Writing Prospectus that constitutes an “"issuer free writing prospectus,” " as defined in Rule 433(h) under the Securities Act (each, an “"Issuer Free Writing Prospectus”");
(ii) Any Free Writing Prospectus or portion thereof delivered by an the Underwriter to the Company pursuant to Section 9(b12(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offeringhereof; and
(iviii) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e12(e) hereof by the Company shall may be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the Final Prospectus relating to the Certificates pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and;
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv12(e)(iii) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus; and
(iv) the Company shall not be required to file (A) Issuer Information contained in any Free Writing Prospectus of an offering participant other than the Issuer, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (B) any Free Writing Prospectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does reflect the final terms thereof.
(g) Each The Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or it and distributed by or on behalf of such the Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g) hereof12(g), each the Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such the Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such the Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g12(e) and 9(h) hereof12(g), neither the Company nor any the Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriters Underwriter each agree that any Free Writing Prospectuses prepared by each such party the Underwriter shall contain the following legendlegend and any other legend that the Underwriter shall deem necessary or appropriate: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in the that registration statement and other documents the depositor has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity and this offering. You may get these documents for free by visiting XXXXX on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxx. Alternatively, the depositor, Deutsche Bank Securities, Inc., any underwriter or any dealer participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll toll-free 10-800000-503000-4611 0000 or you e-mail a request to xx.xxxxxxxxxx_xxxxxxxxxxxx@xxxxxxxxxxxxxx.xxx. The securities may not be suitable for all investors. Banc of America Securities LLC and its affiliates may acquire, hold or sell positions in these securities, or in related derivatives, and may have an investment or commercial banking relationship with the depositor. The asset-backed securities referred to in these materials, and the asset pools backing them, are subject to modification or revision (including the possibility that one or more classes of securities may be split, combined or eliminated at any time prior to issuance or availability of a final prospectus) and are offered on a "when, as and if issued" basis. You understand that, when you are considering the purchase of these securities, a contract of sale will come into being no sooner than the date on which the relevant class has been priced and we have confirmed the allocation of securities to be made to you; any "indications of interest" expressed by emailing xxxxxxxxxx.xxxx@xx.xxxyou, and any "soft circles" generated by us, will not create binding contractual obligations for you or us. Because the asset-backed securities are being offered on a "when, as and if issued" basis, any such contract of sale will terminate, by its terms, without any further obligation or liability between us, if the securities themselves, or the particular class to which the contract relates, are not issued. Because the asset-backed securities are subject to modification or revision, any such contract also is conditioned upon the understanding that no material change will occur with respect to the relevant class of securities prior to the closing date. If a material change does occur with respect to such class, our contract will terminate, by its terms, without any further obligation or liability between us (the "Automatic Termination"). If an Automatic Termination occurs, we will provide you with revised offering materials reflecting the material change and give you an opportunity to purchase such class. To indicate your interest in purchasing the class, you must communicate to us your desire to do so within such timeframe as may be designated in connection with your receipt of the revised offering materials. The information contained in these materials may be based on assumptions regarding market conditions and other matters as reflected herein. Banc of America Securities LLC (the "Underwriter") makes no representation regarding the reasonableness of such assumptions or the likelihood that any such assumptions will coincide with actual market conditions or events, and these materials should not be relied upon for such purposes. The Underwriter and its affiliates, officers, directors, partners and employees, including persons involved in the preparation or issuance of these materials, may, from time to time, have long or short positions in, and buy and sell, the securities mentioned herein or derivatives thereof (including options). Information in these materials is current as of the date appearing on the material only. Information in these materials regarding any securities discussed herein supersedes all prior information regarding such securities. These materials are not to be construed as an offer to sell or the solicitation of any offer to buy any security in any jurisdiction where such an offer or solicitation would be illegal. This free writing prospectus is being delivered to you solely to provide you with information about the offering of the securities referred to in this free writing prospectus and to solicit an offer to purchase the securities, 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 securities until we have accepted your offer to purchase securities. You may withdraw your offer to purchase securities at any time prior to our acceptance of your offer. The information in this free writing prospectus supersedes information contained in any prior similar free writing prospectus relating to these securities prior to the time of your commitment to purchase. This free writing prospectus is not an offer to sell or solicitation of an offer to buy these securities in any state where such offer, solicitation or sale is not permitted. The Company and the Underwriter each agree that any Free Writing Prospectus prepared by the Underwriter and that is not an Issuer Free Writing Prospectus or that does not contain Issuer Information shall also contain the following legend: Neither the issuer of the securities nor any of its affiliates prepared, provided, approved or verified any statistical or numerical information presented herein, although that information may be based in part on loan level data provided by the issuer or its affiliates.”
(k) The Company and the Underwriters each Underwriter agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 12 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(l) In the event that the Company becomes aware, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Issuer Free Writing Prospectus”), the Company shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each The Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company Depositor that after the final Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor purchaser of Offered Certificates unless such information is preceded or accompanied by the final Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Banc of America Funding 2007-E Trust)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no the Underwriter shall not convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iviii) constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no the Underwriter shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “"ABS informational and computational material,” " as defined in Item 1101(a) of Regulation AB under the Securities Act (“"ABS Informational and Computational Material”"), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(bi) Each The Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (eachCompany, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) two business day days prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
thereof, (iA) any such Free Writing Prospectus prepared by or on behalf of the Underwriter that contains any "issuer information," as defined in Rule 433(h) under the Act ("Issuer Information"), and (B) any Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; andCertificates.
(ii) Notwithstanding the provisions of Section 12(b)(i), any such Free Writing Prospectus described therein that contains only ABS Informational and Computational Materials Material, may be delivered by an the Underwriter to the Company not later than the later of (Aa) one (1) two business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (Bb) the date of first use of such Free Writing Prospectus.
(c) Each The Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such the Underwriter pursuant to Section 9(b12(b)(i) hereof or (ii) will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such the Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each The Underwriter represents and warrants to the Company that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company pursuant to Section 9(b12(b)(i) hereof or (ii) did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investor, include any untrue statement of a material fact or omit to state any material fact required to be stated therein necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and misleading; provided however, that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, no Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, Underwriter which information was not corrected by information subsequently supplied by the Company, Company to the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time of Sale sale to the applicable investor of the Offered Certificates (including without limitationwhich resulted in a loss, by means claim, damage or liability arising out of a contract of sale)based upon such misstatement or omission.
(e) The Company agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Any Free Writing Prospectus that constitutes an “"issuer free writing prospectus,” " as defined in Rule 433(h) under the Securities Act (each, an “"Issuer Free Writing Prospectus”");
(ii) Any Free Writing Prospectus or portion thereof delivered by an the Underwriter to the Company pursuant to Section 9(b12(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offeringhereof; and
(iviii) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e12(e) hereof by the Company shall may be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the final Prospectus relating to the Certificates pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and;
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv12(e)(iii) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus; and
(iv) the Company shall not be required to file (A) Issuer Information contained in any Free Writing Prospectus of an offering participant other than the Issuer, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (B) any Free Writing Prospectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does reflect the final terms thereof.
(g) Each The Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or it and distributed by or on behalf of such the Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g) hereof12(g), each the Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such the Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such the Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g12(e) and 9(h) hereof12(g), neither the Company nor any the Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriters Underwriter each agree that any Free Writing Prospectuses prepared by each such party the Underwriter shall contain the following legendlegend and any other legend that the Underwriter shall deem necessary or appropriate: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in the that registration statement and other documents the depositor has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity and this offering. You may get these documents for free by visiting XXXXX EDGAR on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxxwww.sec.gov. Alternatively, the depositor, Deutsche Bank Securities, Inc.xxx xepositor, any underwriter or any dealer underwritex xx xxx xxaler participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll toll-free 1-800-503294-4611 1322 or you e-mail a request to dg.prospectus_dxxxxxxxxxxx@xxfasecurities.com. The securities may not be suitable for all investors. Banc of America Securities LLC and its affiliates may acquire, hold or sell positions in these securities, or in related derivatives, and may have an investment or commercial banking relationship with the depositor. The asset-backed securities referred to in these materials, and the asset pools backing them, are subject to modification or revision (including the possibility that one or more classes of securities may be split, combined or eliminated at any time prior to issuance or availability of a final prospectus) and are offered on a "when, as and if issued" basis. You understand that, when you are considering the purchase of these securities, a contract of sale will come into being no sooner than the date on which the relevant class has been priced and we have confirmed the allocation of securities to be made to you; any "indications of interest" expressed by emailing xxxxxxxxxx.xxxx@xx.xxxyou, and any "soft circles" generated by us, will not create binding contractual obligations for you or us. Because the asset-backed securities are being offered on a "when, as and if issued" basis, any such contract of sale will terminate, by its terms, without any further obligation or liability between us, if the securities themselves, or the particular class to which the contract relates, are not issued. Because the asset-backed securities are subject to modification or revision, any such contract also is conditioned upon the understanding that no material change will occur with respect to the relevant class of securities prior to the closing date. If a material change does occur with respect to such class, our contract will terminate, by its terms, without any further obligation or liability between us (the "Automatic Termination"). If an Automatic Termination occurs, we will provide you with revised offering materials reflecting the material change and give you an opportunity to purchase such class. To indicate your interest in purchasing the class, you must communicate to us your desire to do so within such timeframe as may be designated in connection with your receipt of the revised offering materials. The information contained in these materials may be based on assumptions regarding market conditions and other matters as reflected herein. Banc of America Securities LLC (the "Underwriter") makes no representation regarding the reasonableness of such assumptions or the likelihood that any such assumptions will coincide with actual market conditions or events, and these materials should not be relied upon for such purposes. The Underwriter and its affiliates, officers, directors, partners and employees, including persons involved in the preparation or issuance of these materials, may, from time to time, have long or short positions in, and buy and sell, the securities mentioned herein or derivatives thereof (including options). Information in these materials is current as of the date appearing on the material only. Information in these materials regarding any securities discussed herein supersedes all prior information regarding such securities. These materials are not to be construed as an offer to sell or the solicitation of any offer to buy any security in any jurisdiction where such an offer or solicitation would be illegal. This free writing prospectus is being delivered to you solely to provide you with information about the offering of the securities referred to in this free writing prospectus and to solicit an offer to purchase the securities, 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 securities until we have accepted your offer to purchase securities. You may withdraw your offer to purchase securities at any time prior to our acceptance of your offer. The information in this free writing prospectus supersedes information contained in any prior similar free writing prospectus relating to these securities prior to the time of your commitment to purchase. This free writing prospectus is not an offer to sell or solicitation of an offer to buy these securities in any state where such offer, solicitation or sale is not permitted. The Company and the Underwriter each agree that any Free Writing Prospectus prepared by the Underwriter and that is not an Issuer Free Writing Prospectus or that does not contain Issuer Information shall also contain the following legend: Neither the issuer of the securities nor any of its affiliates prepared, provided, approved or verified any statistical or numerical information presented herein, although that information may be based in part on loan level data provided by the issuer or its affiliates.”
(k) The Company and the Underwriters each Underwriter agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 12 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(l) In the event that the Company becomes aware, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Issuer Free Writing Prospectus”), the Company shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each The Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company Depositor that after the final Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor purchaser of Offered Certificates unless such information is preceded or accompanied by the final Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Banc of America Funding 2006-4 Trust)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no Underwriter shall convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, (iv) constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no Underwriter shall prepare, convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “ABS informational and computational material,” as defined in Item 1101(a) of Regulation AB under the Securities Act (“ABS Informational and Computational Material”), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead UnderwriterCastleOak, Natixis and RBS) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(b) Each Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (each, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) business day prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
(i) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and
(ii) any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an Underwriter to the Company not later than the later of (A) one (1) business day prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (B) the date of first use of such Free Writing Prospectus.
(c) Each Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such Underwriter pursuant to Section 9(b) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each Underwriter represents and warrants to the Company that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company pursuant to Section 9(b) hereof did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investor, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, however, no Underwriter makes any representation or warranty to the extent such misstatements or omissions are based upon or arise out of an untrue statement or omission in the Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, which information was not corrected by information subsequently supplied by the Company, the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time time of Sale sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale).
(e) The Company agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Issuer Free Writing Prospectus”);
(ii) Any Free Writing Prospectus or portion thereof delivered by an Underwriter to the Company pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e) hereof by the Company shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(g) Each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g) hereof, each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g) and 9(h) hereof, neither the Company nor any Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party shall contain the following legend: “The depositor filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376184376) for the offering to which this communication relates. Before you invest, you should read the prospectus in the registration statement and other documents the depositor has filed with the Securities and Exchange Commission for more complete information about the depositor, the issuing entity and this offering. You may get these documents for free by visiting XXXXX on the Securities and Exchange Commission website at xxx.xxx.xxx. Alternatively, the depositor, Deutsche Bank Securities, Inc., any underwriter or any dealer participating in this offering will arrange to send you the prospectus after filing if you request it by calling toll toll-free 1-800-503-4611 or by emailing xxxxxxxxxx.xxxx@xx.xxx.”
(k) The Company and the Underwriters each agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(l) In the event that the Company becomes aware, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Issuer Free Writing Prospectus”), the Company shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company Issuer of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company Issuer shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company that after the Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor unless such information is preceded or accompanied by the final Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (COMM 2013-Ccre8 Mortgage Trust)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no the Underwriter shall not convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iviii) constitutes a “"free writing prospectus,” " as defined in Rule 405 under the Securities Act (a “"Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance"). Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no the Underwriter shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “"ABS informational and computational material,” " as defined in Item 1101(a) of Regulation AB under the Securities Act (“"ABS Informational and Computational Material”"), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(bi) Each The Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (eachCompany, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) two business day days prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
thereof, (iA) any such Free Writing Prospectus prepared by or on behalf of the Underwriter that contains any "issuer information," as defined in Rule 433(h) under the Act ("Issuer Information"), and (B) any Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; andCertificates.
(ii) Notwithstanding the provisions of Section (b)(i), any such Free Writing Prospectus described therein that contains only ABS Informational and Computational Materials may be delivered by an the Underwriter to the Company not later than the later of (Aa) one (1) two business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (Bb) the date of first use of such Free Writing Prospectus.
(c) Each The Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such the Underwriter pursuant to Section 9(b11(b)(i) hereof or (ii) will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such the Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each The Underwriter represents and warrants to the Company that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company pursuant to Section 9(b11(b)(i) hereof or (ii) did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investor, include any untrue statement of a material fact or omit to state any material fact required to be stated therein necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and misleading; provided however, that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, no Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, Underwriter which information was not corrected by information subsequently supplied by the Company, Company to the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time of Sale sale to the applicable investor of the Offered Certificates (including without limitationwhich resulted in a loss, by means claim, damage or liability arising out of a contract of sale)or based upon such misstatement or omission.
(e) The Company agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Any Free Writing Prospectus that constitutes an “"issuer free writing prospectus,” " as defined in Rule 433(h) under the Securities Act (each, an “Issuer Free Writing Prospectus”)Act;
(ii) Any Free Writing Prospectus or portion thereof delivered by an the Underwriter to the Company pursuant to Section 9(b11(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offeringhereof; and
(iviii) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e11(e) hereof by the Company shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the final Prospectus relating to the Certificates pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and;
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv11(e)(3) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus; and
(iv) the Company shall not be required to file (A) Issuer Information contained in any Free Writing Prospectus of an offering participant other than the Company, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (B) any Free Writing Prospectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does reflect the final terms thereof.
(g) Each The Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or it and distributed by or on behalf of such the Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g) hereof11(g), each the Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such the Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such the Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g11(e) and 9(h) hereof11(g), neither the Company nor any the Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriters Underwriter each agree that any Free Writing Prospectuses prepared by each such party it shall contain the following legend: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in the that registration statement and other documents the depositor has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity depositor and this offering. You may get these documents for free by visiting XXXXX EDGAR on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxxwww.sec.gov. Alternatively, the depositor, Deutsche Bank Securities, Inc.xxx xepositor, any underwriter or any dealer underwritex xx xxx xxaler participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll toll-free 1-800-503294-4611 or by emailing xxxxxxxxxx.xxxx@xx.xxx1322.”
(k) The Company and the Underwriters each agree to retain Underwriter axxxx xx xxxxxx all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 11 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(l) In the event that the Company becomes aware, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Issuer Free Writing Prospectus”), the Company shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company that after the Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor unless such information is preceded or accompanied by the final Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Banc of America Mortgage 2006-3 Trust)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no Underwriter shall convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i1) is made in reliance on Rule 134 under the Securities Act, (ii2) is made in reliance on Rule 172 under the Securities Act, (iii3) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iv4) constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no Underwriter The Underwriters shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “ABS informational and computational material,” as defined in Item 1101(a) of Regulation AB under the Securities Act (“ABS Informational and Computational Material”), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(b) Each Underwriter shall deliver to the Company Depositor, no later than two business days prior to the date of first use thereof, (a) any Underwriter Free Writing Prospectus prepared by or on behalf of such Underwriter that contains any “issuer information”, as defined in Rule 433(h) under the Securities Act1 (“Issuer Information”) (which the parties hereto agree includes, without limitation, the Sellers’ Information) and (b) any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (each, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) business day prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
(i) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to Certificates. Notwithstanding the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and
(ii) foregoing, any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an Underwriter the Underwriters to the Company Depositor not later than the later of (Aa) one (1) two business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (Bb) the date of first use of such Free Writing Prospectus.
(c) Each Underwriter represents and warrants to the Company Depositor that the Free Writing Prospectuses to be furnished to the Company Depositor by such the Underwriter pursuant to Section 9(b8(b) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors purchasers of Offered Certificates by such the Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each Underwriter represents and warrants to the Company Depositor that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company Depositor pursuant to Section 9(b) hereof 8(b), when read together with all other Time of Sale Information, did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investorTime of Sale, and will not as of the Closing Date, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and misleading; provided however, that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, no Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, which information was not corrected by information Corrective Information subsequently supplied by the Company, Depositor or any Seller to the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time of Sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale)Sale.
(e) The Company Depositor agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Any Issuer Free Writing Prospectus”);
(ii) Any Free Writing Prospectus or portion thereof delivered by an the Underwriter to the Company Depositor pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed8(b);; and
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company Depositor or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e8(e) hereof by the Company Depositor shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may shall be filed by the Company Depositor with the Commission within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may shall be filed by the Company Depositor with the Commission not later than the later of the due date for filing of the final Prospectus relating to the Offered Certificates pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and;
(iii) any Any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv8(e)(iii) hereof mayshall, if no payment has been made or consideration has been given by or on behalf of the Company Depositor for the Free Writing Prospectus or its dissemination, be filed by the Company Depositor with the Commission not later than four (4) business days after the Company Depositor becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus; and
(iv) The Depositor shall not be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any other offering participant other than the Depositor, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (B) any Free Writing Prospectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does not reflect the final terms thereof.
(g) Each Underwriter (with shall provide to the reasonable cooperation of the Company) shall file with the Commission Depositor any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or it and distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing ProspectusProspectus and the Depositor shall file such Free Writing Prospectus with the Commission.
(h) Notwithstanding the provisions of Section 9(g) hereof8(g), each Underwriter (with shall provide to the reasonable cooperation of the Company) Depositor, who shall then file with the Commission Commission, any Free Writing Prospectus for which such the Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company Depositor or any other offering participant, not later than four (4) business days after such the Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g8(e) and 9(h) hereof8(g), neither the Company Depositor nor any Underwriter the Underwriters shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company Depositor and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party it shall contain a legend substantially in the following legendform: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in the that registration statement and other documents the depositor has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity trust and this offering. You may get these documents for free by visiting XXXXX EXXXX on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxxwxx.xxx.xxx. Alternatively, the depositor, Deutsche Bank Securities, Inc., any underwriter or any dealer participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll free 1-800000-503000-4611 0000 or by emailing xxxxxxxxxx.xxxx@xx.xxx.”
(k) The Company and the Underwriters each agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 for a period of three (3) years following the initial bona fide offering of the Offered Certificatescxxx-xxxxxxxxxx@xxxxxxxx.xxx.
(l1) In the event that the Company Depositor becomes awareaware that, at any time between as of the Time of Sale or Sale, any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains contained any untrue statement of a material fact or omits omitted to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information)therein, in light of the circumstances under which they were made, not misleading misleading, when read in conjunction with the Time of Sale Information (such Issuer Free Writing Prospectus a “Defective Issuer Free Writing Prospectus”), the Company Depositor shall notify the Underwriters of such untrue statement or omission thereof within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company Depositor shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In ) and (2) in the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any Underwriter becomes aware that that, as of the Time of Sale, any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains contained any untrue statement of a material fact or omits omitted to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information)therein, in the light of the circumstances under which they were made, not misleading misleading, when read in conjunction with the Time of Sale Information (such Underwriter Free Writing Prospectus, a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission Depositor thereof within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the CompanyDepositor:
(iA) if If the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus with Corrective Information that corrects the material misstatement in or omission from the Defective Underwriter Free Writing Prospectus (such corrected Underwriter Free Writing Prospectus, a “Corrected Underwriter Free Writing Prospectus” and, together with a the Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(iiB) either (A) deliver Deliver the Corrected Free Writing Prospectus to each investor purchaser of an Offered Certificate which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or purchaser;
(BC) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each Notify such investor purchaser in a prominent prompt fashion that the any prior contract of sale with such investor purchaser has been terminated, and of such investorpurchaser’s rights as a result of termination of such agreement and agreement;
(yD) provide Provide such investor purchaser with an opportunity to affirmatively agree in writing to purchase the Offered Certificates enter into a new contract of sale on the terms described in the Corrected Free Writing Prospectus; and
(iiiE) comply Comply with any other requirements for reformation of the original contract of sale with such investorsale, as described in Section IV.A.2.c IV.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(nl) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company Depositor that after the final Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates that contains Issuer Information to a prospective investor purchaser of Offered Certificates unless such information is preceded or accompanied by the final Prospectus.
(m) The Depositor and each Underwriter agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 8 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
Appears in 1 contract
Samples: Underwriting Agreement (J.P. Morgan Chase Commercial Mortgage Securities Trust 2012-Cibx)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no Underwriter shall convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i1) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii2) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iv3) constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no The Underwriter shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “"ABS informational and computational material,” " as defined in Item 1101(a) of Regulation AB under the Securities Act (“"ABS Informational and Computational Material”"), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(b) Each Underwriter shall deliver to the Company Depositor, no later than two business days prior to the date of first use thereof, (a) any Underwriter Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (each, an “Underwriter Free Writing Prospectus”) that contains any "issuer information", as defined in Rule 433(h) under the Securities Act(1) ("Issuer Information by no later than one Information") (1which the parties hereto agree includes, without limitation, Seller's Information) business day prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
and (ib) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to Certificates. Notwithstanding the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and
(ii) foregoing, any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an the Underwriter to the Company Depositor not later than the later of (Aa) one (1) two business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (Bb) the date of first use of such Free Writing Prospectus.
(c) Each Underwriter represents and warrants to the Company Depositor that the Free Writing Prospectuses to be furnished to the Company Depositor by such the Underwriter pursuant to Section 9(b8(b) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors purchasers of Offered Certificates by such the Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each Underwriter represents and warrants to the Company Depositor that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company Depositor pursuant to Section 9(b) hereof 8(b), when read together with all other Time of Sale Information, did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investorTime of Sale, and will not as of the Closing Date, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and misleading; provided however, that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, no Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, which information was not corrected by information Corrective Information subsequently supplied by the Company, Depositor or any Seller to the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time of Sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale)Sale.
(e) The Company Depositor agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Any Issuer Free Writing Prospectus”);
(ii) Any Free Writing Prospectus or portion thereof delivered by an the Underwriter to the Company Depositor pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed8(b);; and
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company Depositor or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e8(e) hereof by the Company Depositor shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may shall be filed by the Company Depositor with the Commission within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may shall be filed by the Company Depositor with the Commission not later than the later of the due date for filing of the final Prospectus relating to the Offered Certificates pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and;
(iii) any Any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv8(e)(iii) hereof mayshall, if no payment has been made or consideration has been given by or on behalf of the Company Depositor for the Free Writing Prospectus or its dissemination, be filed by the Company Depositor with the Commission not later than four (4) business days after the Company Depositor becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus; and
(iv) The Depositor shall not be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any other offering participant other than the Depositor, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (B) any Free Writing Prospectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does not reflect the final terms thereof.
(g) Each Underwriter (with shall provide to the reasonable cooperation of the Company) shall file with the Commission Depositor any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or it and distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing ProspectusProspectus and the Depositor shall file such Free Writing Prospectus with the Commission,.
(h) Notwithstanding the provisions of Section 9(g) hereof8(g), each Underwriter (with shall provide to the reasonable cooperation of the Company) Depositor, who shall then file with the Commission Commission, any Free Writing Prospectus for which such the Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company Depositor or any other offering participant, not later than four (4) business days after such the Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g8(e) and 9(h) hereof8(g), neither the Company Depositor nor any the Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company Depositor and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party it shall contain the following legend: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in the that registration statement and other documents the depositor has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity trust and this offering. You may get these documents for free by visiting XXXXX EDGAR on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxxwww.sec.gov. Alternatively, the depositor, Deutsche Bank Securities, Inc.depoxxxxx, any underwriter or any dealer participating dealex xxxticipating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll free 1-800866-503400-4611 7834 or by emailing xxxxxxxxxx.xxxx@xx.xxx.”
(k) The Company and the Underwriters each agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 for a period of three (3) years following the initial bona fide offering of the Offered CertificatesAvinash Bappanad at bappanad_avinash@jxxxxxxx.xxx.
(l1) In Xx xxx xxxxx xxat the event that the Company becomes awareDepxxxxxx xxxxxxx xxxxx xxxx, at any time between xx of the Time of Sale or Sale, any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains contained any untrue statement of a material fact or omits omitted to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information)therein, in light of the circumstances under which they were made, not misleading misleading, when read in conjunction with the Time of Sale Information (such Issuer Free Writing Prospectus a “"Defective Issuer Free Writing Prospectus”"), the Company Depositor shall notify the Underwriters of such untrue statement or omission thereof within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company Depositor shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “"Corrected Issuer Free Writing Prospectus”). In ") and (2) in the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any Underwriter becomes aware that that, as of the Time of Sale, any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains contained any untrue statement of a material fact or omits omitted to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information)therein, in the light of the circumstances under which they were made, not misleading misleading, when read in conjunction with the Time of Sale Information, (such Underwriter Free Writing Prospectus, a “"Defective Underwriter Free Writing Prospectus” " and, together with a Defective Issuer Free Writing Prospectus, a “"Defective Free Writing Prospectus”"), such Underwriter shall notify the Company of such untrue statement or omission Depositor thereof within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the CompanyDepositor:
(iA) if If the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus with Corrective Information that corrects the material misstatement in or omission from the Defective Underwriter Free Writing Prospectus (such corrected Underwriter Free Writing Prospectus, a "Corrected Underwriter Free Writing Prospectus" and, together with a the Corrected Issuer Free Writing Prospectus, a “"Corrected Free Writing Prospectus”"), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(iiB) either (A) deliver Deliver the Corrected Free Writing Prospectus to each investor purchaser of an Offered Certificate which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or purchaser;
(BC) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each Notify such investor purchaser in a prominent prompt fashion that the any prior contract of sale with such investor purchaser has been terminated, and of such investor’s purchaser's rights as a result of termination of such agreement and agreement;
(yD) provide Provide such investor purchaser with an opportunity to affirmatively agree in writing to purchase the Offered Certificates enter into a new contract of sale on the terms described in the Corrected Free Writing Prospectus; and
(iiiE) comply Comply with any other requirements for reformation of the original contract of sale with such investorsale, as described in Section IV.A.2.c IV.2.c of the Commission’s 's Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(nl) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company Depositor that after the final Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates that contains Issuer Information to a prospective investor purchaser of Offered Certificates unless such information is preceded or accompanied by the final Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (JP Morgan Chase Commercial Mortgage Securities Trust 2006-Cibc14)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no Underwriter shall convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, (iv) constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no Underwriter shall prepare, convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “ABS informational and computational material,” as defined in Item 1101(a) of Regulation AB under the Securities Act (“ABS Informational and Computational Material”), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead UnderwriterUBS, KeyBanc, CastleOak and Nomura) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(b) Each Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (each, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) business day prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
(i) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and
(ii) any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an Underwriter to the Company not later than the later of (A) one (1) business day prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (B) the date of first use of such Free Writing Prospectus.
(c) Each Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such Underwriter pursuant to Section 9(b) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each Underwriter represents and warrants to the Company that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company pursuant to Section 9(b) hereof did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investor, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, however, no Underwriter makes any representation or warranty to the extent such misstatements or omissions are based upon or arise out of an untrue statement or omission in the Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, which information was not corrected by information subsequently supplied by the Company, the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time time of Sale sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale).
(e) The Company agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Issuer Free Writing Prospectus”);
(ii) Any Free Writing Prospectus or portion thereof delivered by an Underwriter to the Company pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e) hereof by the Company shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(g) Each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g) hereof, each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g) and 9(h) hereof, neither the Company nor any Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party shall contain the following legend: “The depositor filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376184376) for the offering to which this communication relates. Before you invest, you should read the prospectus in the registration statement and other documents the depositor has filed with the Securities and Exchange Commission for more complete information about the depositor, the issuing entity and this offering. You may get these documents for free by visiting XXXXX on the Securities and Exchange Commission website at xxx.xxx.xxx. Alternatively, the depositor, Deutsche Bank Securities, Inc., any underwriter or any dealer participating in this offering will arrange to send you the prospectus after filing if you request it by calling toll toll-free 1-800-503-4611 or by emailing xxxxxxxxxx.xxxx@xx.xxx.”
(k) The Company and the Underwriters each agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(l) In the event that the Company becomes aware, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Issuer Free Writing Prospectus”), the Company shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company Issuer of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company Issuer shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company that after the Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor unless such information is preceded or accompanied by the final Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (COMM 2013-Ccre10 Mortgage Trust)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no Underwriter shall convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, (iv) constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no Underwriter shall prepare, convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “ABS informational and computational material,” as defined in Item 1101(a) of Regulation AB under the Securities Act (“ABS Informational and Computational Material”), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead UnderwriterCastleOak, KeyBanc, MS and RBS) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(b) Each Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (each, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) business day prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
(i) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and
(ii) any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an Underwriter to the Company not later than the later of (A) one (1) business day prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (B) the date of first use of such Free Writing Prospectus.
(c) Each Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such Underwriter pursuant to Section 9(b) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each Underwriter represents and warrants to the Company that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company pursuant to Section 9(b) hereof did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investor, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, however, no Underwriter makes any representation or warranty to the extent such misstatements or omissions are based upon or arise out of an untrue statement or omission in the Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, which information was not corrected by information subsequently supplied by the Company, the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time time of Sale sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale).
(e) The Company agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Issuer Free Writing Prospectus”);
(ii) Any Free Writing Prospectus or portion thereof delivered by an Underwriter to the Company pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e) hereof by the Company shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(g) Each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g) hereof, each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g) and 9(h) hereof, neither the Company nor any Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party shall contain the following legend: “The depositor filed a registration statement (including a prospectus) with the Securities and Exchange Commission (SEC File No. 333-193376172143) for the offering to which this communication relates. Before you invest, you should read the prospectus in the registration statement and other documents the depositor has filed with the Securities and Exchange Commission for more complete information about the depositor, the issuing entity and this offering. You may get these documents for free by visiting XXXXX on the Securities and Exchange Commission website web site at xxx.xxx.xxx. Alternatively, the depositor, Deutsche Bank Securities, Inc., any underwriter or any dealer participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll free 1-800-503-4611 or by emailing email to the following address: xxxxxxxxxx.xxxx@xx.xxx.”
(k) The Company and the Underwriters each agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(l) In the event that the Company becomes aware, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Issuer Free Writing Prospectus”), the Company shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company Issuer of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company Issuer shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company that after the Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor unless such information is preceded or accompanied by the final Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (COMM 2012-Ccre2 Mortgage Trust)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no Underwriter shall convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, (iv) constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no Underwriter shall prepare, convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “ABS informational and computational material,” as defined in Item 1101(a) of Regulation AB under the Securities Act (“ABS Informational and Computational Material”), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead UnderwriterNatixis, CastleOak and Nomura) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(b) Each Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (each, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) business day prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
(i) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and
(ii) any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an Underwriter to the Company not later than the later of (A) one (1) business day prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (B) the date of first use of such Free Writing Prospectus.
(c) Each Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such Underwriter pursuant to Section 9(b) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each Underwriter represents and warrants to the Company that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company pursuant to Section 9(b) hereof did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investor, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, however, no Underwriter makes any representation or warranty to the extent such misstatements or omissions are based upon or arise out of an untrue statement or omission in the Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, which information was not corrected by information subsequently supplied by the Company, the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time of Sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale).
(e) The Company agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Issuer Free Writing Prospectus”);
(ii) Any Free Writing Prospectus or portion thereof delivered by an Underwriter to the Company pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e) hereof by the Company shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(g) Each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g) hereof, each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g) and 9(h) hereof, neither the Company nor any Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party shall contain the following legend: “The depositor filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376184376) for the offering to which this communication relates. Before you invest, you should read the prospectus in the registration statement and other documents the depositor has filed with the Securities and Exchange Commission for more complete information about the depositor, the issuing entity and this offering. You may get these documents for free by visiting XXXXX on the Securities and Exchange Commission website at xxx.xxx.xxx. Alternatively, the depositor, Deutsche Bank Securities, Inc., any underwriter or any dealer participating in this offering will arrange to send you the prospectus after filing if you request it by calling toll toll-free 1-800-503-4611 or by emailing xxxxxxxxxx.xxxx@xx.xxx.”
(k) The Company and the Underwriters each agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(l) In the event that the Company becomes aware, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Issuer Free Writing Prospectus”), the Company shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company that after the Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor unless such information is preceded or accompanied by the final Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (COMM 2014-Ccre14 Mortgage Trust)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no the Underwriter shall not convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iviii) constitutes a “"free writing prospectus,” " as defined in Rule 405 under the Securities Act (a “"Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance"). Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no the Underwriter shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “"ABS informational and computational material,” " as defined in Item 1101(a) of Regulation AB under the Securities Act (“"ABS Informational and Computational Material”"), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(bi) Each The Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (eachCompany, an “Underwriter Free Writing Prospectus”) that contains any Issuer Information by no later than one (1) two business day days prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
thereof, (iA) any such Free Writing Prospectus prepared by or on behalf of the Underwriter that contains any "issuer information," as defined in Rule 433(h) under the Act ("Issuer Information"), and (B) any Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; andCertificates.
(ii) Notwithstanding the provisions of Section (b)(i), any such Free Writing Prospectus described therein that contains only ABS Informational and Computational Materials may be delivered by an the Underwriter to the Company not later than the later of (Aa) one (1) two business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (Bb) the date of first use of such Free Writing Prospectus.
(c) Each The Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such the Underwriter pursuant to Section 9(b11(b)(i) hereof or (ii) will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such the Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each The Underwriter represents and warrants to the Company that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company pursuant to Section 9(b11(b)(i) hereof or (ii) did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investor, include any untrue statement of a material fact or omit to state any material fact required to be stated therein necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and misleading; provided however, that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, no Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, Underwriter which information was not corrected by information subsequently supplied by the Company, Company to the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time of Sale sale to the applicable investor of the Offered Certificates (including without limitationwhich resulted in a loss, by means claim, damage or liability arising out of a contract of sale)or based upon such misstatement or omission.
(e) The Company agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Any Free Writing Prospectus that constitutes an “"issuer free writing prospectus,” " as defined in Rule 433(h) under the Securities Act (each, an “Issuer Free Writing Prospectus”)Act;
(ii) Any Free Writing Prospectus or portion thereof delivered by an the Underwriter to the Company pursuant to Section 9(b11(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offeringhereof; and
(iviii) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e11(e) hereof by the Company shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the final Prospectus relating to the Certificates pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and;
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv11(e)(3) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus; and
(iv) the Company shall not be required to file (A) Issuer Information contained in any Free Writing Prospectus of an offering participant other than the Company, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (B) any Free Writing Prospectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does reflect the final terms thereof.
(g) Each The Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or it and distributed by or on behalf of such the Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g) hereof11(g), each the Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such the Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such the Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g11(e) and 9(h) hereof11(g), neither the Company nor any the Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriters Underwriter each agree that any Free Writing Prospectuses prepared by each such party it shall contain the following legend: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in the that registration statement and other documents the depositor has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity depositor and this offering. You may get these documents for free by visiting XXXXX EDGAR on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxxwww.sec.gov. Alternatively, the depositor, Deutsche Bank Securities, Inc.txx xxpositor, any underwriter or any dealer xxxler participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll toll-free 1-800-503294-4611 or by emailing xxxxxxxxxx.xxxx@xx.xxx1322.”
(k) The Company and the Underwriters each agree to retain Underwriter agxxx xx xxxxxx all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 11 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(l) In the event that the Company becomes aware, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Issuer Free Writing Prospectus”), the Company shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(n) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company that after the Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor unless such information is preceded or accompanied by the final Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Banc of America Mortgage 2006-B Trust)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of Long Beach Preliminary Prospectus, the Securities ActUnderwriters have not conveyed or delivered, no Underwriter and shall not convey or deliver deliver, any written communication communication, as defined in Rule 405 under the Act (other than the Prospectus) a “Written Communication”), to any person in connection with the initial offering of the Offered Underwritten Certificates, unless such written communication Written Communication (i) is has been, or is, made in reliance on and in conformity with Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iviii) constituted or constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by ). Notwithstanding anything to the Company contrary contained in advance. Without limitation therebythis Agreement, without the prior written consent of the Company (Depositor, which consent may be withheld for any reason)in its sole discretion, no Underwriter the Underwriters have not conveyed or delivered, and shall prepare, not convey or deliver deliver, in connection with the initial offering of the Offered Certificates Underwritten Certificates, any Free Writing Prospectus or “unless such Free Writing Prospectus contains only ABS informational Informational and computational material,” Computational Material, as defined in Item 1101(a) of Regulation AB under the Securities Act (“ABS Informational and Computational Material”); provided however, that any such Free Writing Prospectus may also contain a column showing the status of subscriptions for the Underwritten Certificates. The Underwriters have not conveyed or delivered, and shall not convey or deliver, any ABS Informational and Computational Material in reliance upon on Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter . Any Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(b) Each Underwriter shall deliver to the Company any Free Writing Prospectus that was prepared by or on behalf of such any Underwriter or any affiliate thereof (each, is referred to as an “Underwriter Free Writing Prospectus.”
(b) that contains any Issuer Information by no later than one (1) business day prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
(i) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and[Reserved].
(ii) any such The Underwriters have not conveyed or delivered, and shall not convey or deliver, a Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an Underwriter general information about the offering, the expected parameters of the Mortgage Pool, transaction parties known to the Company not later than Depositor and the later of (A) one (1) business day prior to the due date for filing tax and SMMEA treatment of the Prospectus pursuant to Rule 424(b) under the Securities Act or (B) the date of first use of such Free Writing Prospectus.
(c) Each Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such Underwriter pursuant to Section 9(b) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each Underwriter represents and warrants to the Company that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company pursuant to Section 9(b) hereof did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investor, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, no Underwriter makes any representation or warranty to the extent such misstatements or omissions are based upon or arise out of an untrue statement or omission in the Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, which information was not corrected by information subsequently supplied by the Company, the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time of Sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale).
(e) The Company agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Issuer Free Writing Prospectus”);
(ii) Any to any person or entity until the Depositor has notified the Underwriters that it has filed or will subsequently file the Issuer Free Writing Prospectus or portion thereof delivered by an Underwriter to the Company pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishingCommission. Thereafter, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e) hereof by the Company shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only a description of the final terms of the Offered Certificates may be filed by the Company within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and
(iii) any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv) hereof may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four (4) business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(g) Each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is may be used or referred to by such Underwriter or distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 9(g) hereof, each Underwriter (with the reasonable cooperation of the Company) shall file with the Commission any Free Writing Prospectus for which such Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four (4) business days after such Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g) and 9(h) hereof, neither the Company nor any Underwriter shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party shall contain the following legend: “The depositor filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) for the offering to which this communication relates. Before you invest, you should read the prospectus in the registration statement and other documents the depositor has filed with the Securities and Exchange Commission for more complete information about the depositor, the issuing entity and this offering. You may get these documents for free by visiting XXXXX on the Securities and Exchange Commission website at xxx.xxx.xxx. Alternatively, the depositor, Deutsche Bank Securities, Inc., any underwriter or any dealer participating in this offering will arrange to send you the prospectus after filing if you request it by calling toll free 1-800-503-4611 or by emailing xxxxxxxxxx.xxxx@xx.xxx.”
(k) The Company and the Underwriters each agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(l) In the event that the Company becomes aware, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Issuer Free Writing Prospectus”), the Company shall notify the Underwriters of such untrue statement or omission within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”). In the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information), in light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Company of such untrue statement or omission within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(ii) either (A) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (B) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement and (y) provide such investor with an opportunity to affirmatively agree in writing to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(iii) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor solely in connection with the reformation marketing of the Underwritten Certificates to institutional investors; provided however, the Underwriters shall not enter into any “contract of sale sale” with the any investor, within the Company agrees to reimburse meaning of Rule 159 under the Underwriters for such costsSecurities Act (a “Contract of Sale”) except as provided in Section 9(p).
(nc) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors[Reserved].
(o) Each Underwriter covenants with the Company that after the Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor unless such information is preceded or accompanied by the final Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Long Beach Mortgage Loan Trust 2006-Wl1)
Offering Communications; Free Writing Prospectuses. (a) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, no Underwriter shall convey or deliver any written communication (other than the Prospectus) to any person in connection with the initial offering of the Offered Certificates, unless such written communication (i1) is made in reliance on Rule 134 under the Securities Act, (ii) is made in reliance on Rule 172 under the Securities Act, (iii2) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act, Act or (iv3) constitutes a “free writing prospectus,” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”) or (v) such other written communication approved by the Company in advance. Without limitation thereby, without the prior written consent of the Company (which consent may be withheld for any reason), no Underwriter The Underwriters shall prepare, not convey or deliver in connection with the initial offering of the Offered Certificates any Free Writing Prospectus or “"ABS informational and computational material,” " as defined in Item 1101(a) of Regulation AB under the Securities Act (“"ABS Informational and Computational Material”"), in reliance upon Rules 167 and 426 under the Securities Act, other than materials provided to it by the Company, including Issuer Free Writing Prospectuses (which include the Preliminary FWP and any Additional FWP); provided that notwithstanding the foregoing, each Underwriter (other than an Underwriter that is not a Lead Underwriter) may use an Underwriter Free Writing Prospectus that does not include Issuer Information without obtaining the prior written consent of the Company.
(b) Each Underwriter shall deliver to the Company Depositor, no later than two business days prior to the date of first use thereof, (a) any Underwriter Free Writing Prospectus that was prepared by or on behalf of such Underwriter or any affiliate thereof (each, an “Underwriter Free Writing Prospectus”) that contains any "issuer information", as defined in Rule 433(h) under the Securities Act(1) ("Issuer Information by no later than one Information") (1which the parties hereto agree includes, without limitation, the Sellers' Information) business day prior to the date of first use thereof or such later date as may be agreed to by the Company; except that:
and (ib) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to Certificates. Notwithstanding the Company by no later than the later of (A) the date such final terms have been established for all classes of the Offered Certificates or (B) the date of first use; and
(ii) foregoing, any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by an Underwriter the Underwriters to the Company Depositor not later than the later of (Aa) one (1) two business day days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or (Bb) the date of first use of such Free Writing Prospectus.
(1) Such definition of "issuer information" is further clarified by footnote 271 to SEC Release No. 33,8591. See 70 Fed. Reg. 44,722, at 44,751 (August 3, 2005).
(c) Each Underwriter represents and warrants to the Company Depositor that the Free Writing Prospectuses to be furnished to the Company Depositor by such the Underwriter pursuant to Section 9(b8(b) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors purchasers of Offered Certificates by such the Underwriter in connection with its offer and sale of the Offered Certificates.
(d) Each Underwriter represents and warrants to the Company Depositor that each Free Writing Prospectus (other than an Issuer Free Writing Prospectus) required to be provided by it to the Company Depositor pursuant to Section 9(b) hereof 8(b), when read together with all other Time of Sale Information, did not, as of the date such Free Writing Prospectus was conveyed or delivered to any prospective investorTime of Sale, and will not as of the Closing Date, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and misleading; provided however, that each such Free Writing Prospectus complied with Rules 164 and 433 under the Securities Act; provided, no Underwriter makes any no representation or warranty to the extent such misstatements or omissions are based upon or arise out were the result of an untrue statement or omission in the any inaccurate Issuer Information supplied by the Company to such Underwriter, the Loan Seller Information or the Transaction Party Information, which information was not corrected by information Corrective Information subsequently supplied by the Company, Depositor or any Seller to the related Loan Seller or the related Transaction Party to such Underwriter a reasonable period prior to the Time of Sale to the applicable investor of the Offered Certificates (including without limitation, by means of a contract of sale)Sale.
(e) The Company Depositor agrees to file with the Commission the following:
(i) The Preliminary FWP, each Additional FWP and any other Free Writing Prospectus that constitutes an “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act (each, an “Any Issuer Free Writing Prospectus”);
(ii) Any Free Writing Prospectus or portion thereof delivered by an the Underwriter to the Company Depositor pursuant to Section 9(b) hereof (but not any subsequent Free Writing Prospectus containing only information prepared by or on behalf of an Underwriter on the basis of or derived from Issuer Information previously filed8(b);; and
(iii) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company Depositor or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(v) any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
(f) Any Free Writing Prospectus required to be filed pursuant to Section 9(e8(e) hereof by the Company Depositor shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(i) any Any Free Writing Prospectus or portion thereof required to be filed that contains only a the description of the final terms of the Offered Certificates may shall be filed by the Company Depositor with the Commission within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(ii) any Any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may shall be filed by the Company Depositor with the Commission not later than the later of the due date for filing of the final Prospectus relating to the Offered Certificates pursuant to Rule 424(b) under the Securities Act or two (2) business days after the date of first use of such Free Writing Prospectus; and;
(iii) any Any Free Writing Prospectus required to be filed pursuant to Section 9(e)(iv8(e)(iii) hereof mayshall, if no payment has been made or consideration has been given by or on behalf of the Company Depositor for the Free Writing Prospectus or its dissemination, be filed by the Company Depositor with the Commission not later than four (4) business days after the Company Depositor becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus; and
(iv) The Depositor shall not be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any other offering participant other than the Depositor, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (B) any Free Writing Prospectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does not reflect the final terms thereof.
(g) Each Underwriter (with shall provide to the reasonable cooperation of the Company) shall file with the Commission Depositor any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Company pursuant to Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by such Underwriter or it and distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing ProspectusProspectus and the Depositor shall file such Free Writing Prospectus with the Commission.
(h) Notwithstanding the provisions of Section 9(g) hereof8(g), each Underwriter (with shall provide to the reasonable cooperation of the Company) Depositor, who shall then file with the Commission Commission, any Free Writing Prospectus for which such the Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company Depositor or any other offering participant, not later than four (4) business days after such the Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of such the Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than 9(e)(iii)), 9(g8(e) and 9(h) hereof8(g), neither the Company Depositor nor any Underwriter the Underwriters shall be required to file (A) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any offering participant other than the Company, if such information is included or incorporated by reference in the Prospectus or a Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (B) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof or (C) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(j) The Company Depositor and the Underwriters each agree that any Free Writing Prospectuses prepared by each such party it shall contain a legend substantially in the following legendform: “The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (File No. 333-193376) SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in the that registration statement and other documents the depositor has filed with the Securities and Exchange Commission SEC for more complete information about the depositor, the issuing entity trust and this offering. You may get these documents for free by visiting XXXXX EDGAR on the Securities and Exchange Commission website SEC Web site at xxx.xxx.xxxwww.sec.gov. Alternatively, the depositordepoxxxxx, Deutsche Bank Securities, Inc., any xxx underwriter or any dealer participating in this the offering will arrange to send you the prospectus after filing if you request it by calling toll free 1-800866-503400-4611 7834 or by emailing xxxxxxxxxx.xxxx@xx.xxx.”
(k) The Company and the Underwriters each agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 9 for a period of three (3) years following the initial bona fide offering of the Offered CertificatesXxxxxxx Xxxpanad at bappanad_avinash@xxxxxxxx.xxx.
(l0) In Xx xxx xxxxx xxxt the event that the Company Depositor becomes awareaware that, at any time between as of the Time of Sale or Sale, any Subsequent Time of Sale and the Closing Date, that any information in an Issuer Free Writing Prospectus or any Issuer Information contains contained any untrue statement of a material fact or omits omitted to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the other applicable Time of Sale Information)therein, in light of the circumstances under which they were made, not misleading misleading, when read in conjunction with the Time of Sale Information (such Issuer Free Writing Prospectus a “"Defective Issuer Free Writing Prospectus”"), the Company Depositor shall notify the Underwriters of such untrue statement or omission thereof within one business day after discovery (except for any Underwriter that informed the Company of such untrue statement or omission) and the Company Depositor shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “"Corrected Issuer Free Writing Prospectus”). In ") and (2) in the event that, at any time between the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any Underwriter becomes aware that that, as of the Time of Sale, any Underwriter Free Writing Prospectus delivered thereby to an investor in any Offered Certificates contains contained any untrue statement of a material fact or omits omitted to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the applicable Time of Sale Information)therein, in the light of the circumstances under which they were made, not misleading misleading, when read in conjunction with the Time of Sale Information, (such Underwriter Free Writing Prospectus, a “"Defective Underwriter Free Writing Prospectus” " and, together with a Defective Issuer Free Writing Prospectus, a “"Defective Free Writing Prospectus”"), such Underwriter shall notify the Company of such untrue statement or omission Depositor thereof within one business day after discovery (unless the Company was the party that informed such Underwriter of such untrue statement or omission) and the Underwriters shall, if requested by the CompanyDepositor:
(iA) if If the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus with Corrective Information that corrects the material misstatement in or omission from the Defective Underwriter Free Writing Prospectus (such corrected Underwriter Free Writing Prospectus, a "Corrected Underwriter Free Writing Prospectus" and, together with a the Corrected Issuer Free Writing Prospectus, a “"Corrected Free Writing Prospectus”"), provided, that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Company shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(iiB) either (A) deliver Deliver the Corrected Free Writing Prospectus to each investor purchaser of an Offered Certificate which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or purchaser;
(BC) deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each Notify such investor purchaser in a prominent prompt fashion that the any prior contract of sale with such investor purchaser has been terminated, and of such investor’s purchaser's rights as a result of termination of such agreement and agreement;
(yD) provide Provide such investor purchaser with an opportunity to affirmatively agree in writing to purchase the Offered Certificates enter into a new contract of sale on the terms described in the Corrected Free Writing Prospectus; and
(iiiE) comply Comply with any other requirements for reformation of the original contract of sale with such investorsale, as described in Section IV.A.2.c IV.2.c of the Commission’s 's Securities Offering Reform Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an Issuer Free Writing Prospectus and the defective information was not Underwriter Supplied Information, Loan Seller Information or Transaction Party Information and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs.
(nl) Each Underwriter covenants with the Company that, upon reasonable request, it will make available to the Company such personnel as are familiar with the Underwriter’s compliance procedures for the purpose of answering questions concerning the Underwriter’s practices and procedures for the preparation and dissemination of written materials concerning the Offered Certificates to prospective investors prior to the delivery of the final Prospectus to such investors.
(o) Each Underwriter covenants with the Company Depositor that after the final Prospectus is available the Underwriter shall not distribute any written information concerning the Offered Certificates that contains Issuer Information to a prospective investor purchaser of Offered Certificates unless such information is preceded or accompanied by the final Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (J.P. Morgan Chase Commercial Mortgage Securities Trust 2007-C1)
