Execution
STRUCTURED ASSET MORTGAGE INVESTMENTS II INC.
XXXXXXXXX MORTGAGE SECURITIES TRUST 2006-5
MORTGAGE LOAN PASS-THROUGH CERTIFICATES, SERIES 2006-5
CLASS A-1, CLASS A-2, CLASS A-X,
CLASS A-R, CLASS B-1, CLASS B-2 AND CLASS B-3
UNDERWRITING AGREEMENT
August 29, 2006
To the Underwriters named
on the signature page hereof
Ladies and Gentlemen:
Structured Asset Mortgage Investments II Inc., a Delaware corporation
(the "Company"), proposes to sell to Bear, Xxxxxxx & Co. Inc. ("Bear Xxxxxxx"),
Banc of America Securities LLC ("BofA") Credit Suisse Securities (USA) LLC
("Credit Suisse"), Greenwich Capital Markets, Inc. ("RBS GC") and Xxxxxx
Brothers Inc. ("LBI", and, together with Bear Xxxxxxx, BofA and Credit Suisse,
the "Underwriters"), its Xxxxxxxxx Mortgage Securities Trust 2006-5 Certificates
in the classes, in the respective original principal amounts and with the
designations set forth in Schedule I hereto (the "Offered Certificates"). Only
the Offered Certificates are being purchased by the Underwriters hereunder. The
Offered Certificates, together with the Class B-4, Class B-5 and Class B-6
Certificates (collectively, the "Certificates"), will be issued by the Company
pursuant to a Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated as of August 1, 2006, among the Company, as depositor,
Xxxxxxxxx Mortgage Home Loans, Inc., as seller (the "Seller"), Xxxxx Fargo Bank,
N.A., as master servicer and securities administrator (in its capacity as master
servicer, the "Master Servicer" and in its capacity as securities administrator,
the "Securities Administrator"), Wilmington Trust Company, as Delaware trustee
and LaSalle Bank National Association, as trustee (the "Trustee"). Each
Certificate will evidence the holder's beneficial ownership in the Xxxxxxxxx
Mortgage Securities Trust 2006-5 (the "Trust"), governed pursuant to the Pooling
and Servicing Agreement, and consisting primarily of hybrid and adjustable rate,
residential mortgage loans (the "Mortgage Loans") secured primarily by first
liens on one- to four-family residential properties. The Offered Certificates
are described more fully in Schedule I hereto and in the Final Prospectus
Supplement furnished to the Underwriters by the Company and referred to below.
The Mortgage Loans will be serviced by the Master Servicer pursuant to
the Pooling and Servicing Agreement. Also, an indemnification and contribution
agreement, dated August 29, 2006 (the "Indemnification Agreement"), will be
entered into among the Company, the Underwriters and the Seller.
Capitalized terms used but not otherwise defined herein shall have the
respective meanings assigned to them in the Pooling and Servicing Agreement.
1 Representations and Warranties. The Company represents and warrants
to, and agrees with, the Underwriters that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (the file
number of which is set forth in Schedule I hereto) for the registration of
securities, issuable in series under the Securities Act of 1933, as amended (the
"1933 Act"), which registration statement was declared effective on the date set
forth in Schedule I hereto. The Company meets the requirements for use of Form
S-3 under the 1933 Act, and such registration statement, as amended at the date
hereof, meets the requirements set forth in Rule 415(a)(1)(x) under the 1933 Act
and complies in all other material respects with the 1933 Act and the rules and
regulations thereunder ("the Regulations"). Copies of such registration
statement have been delivered by the Company to the Underwriters. Such
registration statement, as of its effective date, and each amendment thereto to
the date of this agreement, as of its effective date, including all exhibits
thereto, is hereinafter called the "Registration Statement". The Company
proposes to prepare and file with the Commission pursuant to Rule 424 under the
1933 Act a final prospectus dated March 28, 2006 (the "Base Prospectus"), a
preliminary prospectus supplement dated August 24, 2006, relating to the Offered
Certificates (the "Preliminary Prospectus Supplement") and a final prospectus
supplement dated August 29, 2006, relating to the Offered Certificates (the
"Final Prospectus Supplement"). The Base Prospectus and the Preliminary
Prospectus Supplement relating to the Offered Certificates in the form to be
filed with the Commission pursuant to Rule 424 are hereinafter together called
the "Preliminary Prospectus," and the Base Prospectus and the Final Prospectus
Supplement relating to the Offered Certificates in the form to be filed with the
Commission pursuant to Rule 424 are hereinafter together called the "Final
Prospectus." Each of the Preliminary Prospectus and the Final Prospectus is
referred to herein as a "Prospectus." References made herein to a Prospectus
shall be deemed to refer to and include any documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act, as of the date of
such Prospectus, and any reference to any amendment or supplement to the Final
Prospectus shall be deemed to refer to and include any document filed under the
Securities Exchange Act of 1934, as amended (the "1934 Act") after the date of
the Final Prospectus and incorporated by reference in the Final Prospectus, and
any reference to any amendment to the Registration Statement shall be deemed to
include any report of the Company filed with the Commission pursuant to Section
13(a) or 15(d) of the 1934 Act after the effective date that is incorporated by
reference in the Registration Statement.
(b) (i) The Registration Statement, the Preliminary Prospectus and
the Final Prospectus conform, and any further amendments or supplements to the
Registration Statement or the Final Prospectus will conform when they become
effective or are filed with the Commission, as the case may be, in all material
respects to the requirements of the 1933 Act and the Regulations thereunder,
(ii) the Registration Statement, as of the applicable effective date as to each
part of the Registration Statement, does not contain and will not contain any
untrue statement of a material fact and does not omit and will not omit to state
any material fact required to be stated therein or necessary in order to make
the statements therein not misleading, (iii) the Preliminary Prospectus, as of
its date, does not contain and will not contain any untrue statement of a
material fact and does not omit and will not omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of
-2-
the circumstances under which they were made, not misleading; provided, however
that no representation or warranty is made as to (x) information omitted from
the Preliminary Prospectus but included in the Final Prospectus or (y)
information contained in or omitted from the Registration Statement or either
Prospectus in reliance upon and in conformity with written information furnished
to the Company in writing by any Underwriter, directly or through Bear Xxxxxxx,
as representative of the Underwriters, expressly for use therein, as specified
in Exhibit A hereto (the "Underwriters' Information") and (iv) the Final
Prospectus, as of its date, and as amended or supplemented as of the Closing
Date, does not and will not contain any untrue statement of a material fact and
will not omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Company makes no
representations or warranties as to statements contained in or omitted from the
Registration Statement or the Final Prospectus or any amendment or supplement
thereto made in reliance upon and in conformity with the Underwriters'
Information.
(c) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware, has
full power and authority (corporate and other) necessary to own or hold its
properties and to conduct its business as now conducted by it and to enter into
and perform its obligations under this Agreement, the Pooling and Servicing
Agreement, the Mortgage Loan Purchase Agreement, dated as of August 1, 2006,
between the Company and the Seller (the "Mortgage Loan Purchase Agreement"), and
the Indemnification Agreement.
(d) As of the date hereof, as of the date on which each Prospectus
is first filed pursuant to Rule 424 under the 1933 Act, as of the date on which,
prior to the Closing Date, any amendment to the Registration Statement becomes
effective, as of the date on which any supplement to the Preliminary Prospectus
or the Final Prospectus is filed with the Commission, and as of the Closing
Date, there has not been and will not have been (i) any request by the
Commission for any further amendment to the Registration Statement, the
Preliminary Prospectus or the Final Prospectus or for any additional information
which has not been complied with, (ii) any issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or the
institution or threat of any proceeding for that purpose or (iii) any
notification with respect to the suspension of the qualification of the Offered
Certificates for sale in any jurisdiction or any initiation or threat of any
proceeding for such purpose.
(e) This Agreement has been duly authorized, executed and
delivered by the Company.
(f) Each of the Pooling and Servicing Agreement, the Mortgage Loan
Purchase Agreement and the Indemnification Agreement (collectively, the "Other
Agreements"), when executed and delivered as contemplated thereby, will have
been duly authorized, executed and delivered by the Company; and each of the
Other Agreements, when so executed and delivered, will constitute a legal,
valid, binding and enforceable agreement of the Company, subject, as to
enforceability, to (i) bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights generally, (ii) general
principles of equity regardless of whether enforcement is sought in a proceeding
in equity or at law, and (iii) with respect to any rights of indemnity,
limitations of public policy under applicable securities laws.
-3-
(g) As of the Closing Date, the Offered Certificates will be duly
and validly authorized and, when duly and validly executed, authenticated and
delivered in accordance with the Pooling and Servicing Agreement and delivered
to the Underwriters for the account of the Underwriters against payment therefor
as provided herein, will be duly and validly issued and outstanding and entitled
to the benefits of the Pooling and Servicing Agreement. The Offered
Certificates, except for the Class B-2 and Class B-3 Certificates will be
"mortgage related securities," as such term is defined in the singular in the
1934 Act.
(h) As of the Cut-off Date, each of the Mortgage Loans will meet
the criteria for selection to be described in the Final Prospectus.
(i) The Company is not in violation of its certificate of
incorporation or by-laws or in default under any agreement, indenture or
instrument the effect of which violation or default would be material to the
Company. None of (i) the issuance and sale of the Offered Certificates, (ii) the
execution and delivery by the Company of this Agreement and the Other
Agreements, (iii) the consummation by the Company of any of the transactions
herein or therein contemplated, and (iv) the compliance by the Company with the
provisions hereof or thereof, does or will conflict with or result in a breach
of any term or provision of the certificate of incorporation or by-laws of the
Company or conflict with, result in a breach, violation or acceleration of, or
constitute a default under, the terms of any indenture or other agreement or
instrument to which the Company is a party or by which it is bound, or any
statute, order or regulation applicable to the Company of any court, regulatory
body, administrative agency or governmental body having jurisdiction over the
Company. The Company is not a party to, bound by or in breach or violation of
any indenture or other agreement or instrument, or subject to or in violation of
any statute, order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it that materially and
adversely affects, or may in the future materially and adversely affect, (i) the
ability of the Company to perform its obligations under this Agreement and the
Other Agreements or (ii) the business, operations, financial conditions,
properties or assets of the Company.
(j) There are no actions or proceedings against, or investigations
of, the Company pending or, to the knowledge of the Company, threatened, before
any court, arbitrator, administrative agency or other tribunal (i) asserting the
invalidity of this Agreement, the Other Agreements or the Certificates, (ii)
seeking to prevent the issuance of the Certificates or the consummation of any
of the transactions contemplated by this Agreement and the Other Agreements,
(iii) that are reasonably likely to be adversely determined and that might
materially and adversely affect the performance by the Company of its
obligations under, or the validity or enforceability of, this Agreement, the
Other Agreements or the Certificates or (iv) seeking to affect adversely the
federal income tax attributes of the Certificates as described in the Final
Prospectus.
-4-
(k) Any taxes, fees and other governmental charges in connection
with the execution and delivery of this Agreement and the Other Agreements or
the execution, delivery and sale of the Certificates have been or will be paid
on or prior to the Closing Date.
(l) Immediately prior to the assignment of the Mortgage Loans to
the Trustee as contemplated by the Pooling and Servicing Agreement, the Company
(i) had good title to, and was the sole owner of, each Mortgage Loan free and
clear of any pledge, mortgage, lien, security interest or other encumbrance
(collectively, "Liens"), (ii) had not assigned to any Person any of its right,
title or interest in and to such Mortgage Loans or in the Pooling and Servicing
Agreement and (iii) will have the power and authority to sell such Mortgage
Loans to the Trustee, and upon the execution and delivery of the Pooling and
Servicing Agreement by the Trustee, the Trustee will have acquired all of the
Company's right, title and interest in and to the Mortgage Loans.
(m) Neither the Company nor the Trust is, and neither the issuance
and sale of the Certificates nor the activities of the Trust pursuant to the
Pooling and Servicing Agreement will cause the Company or the Trust to be, an
"investment company" or under the control of an "investment company" as such
terms are defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act").
(n) As of August 29, 2006, the Company was not an "ineligible
issuer" as defined in Rule 405 under the Securities Act.
-5-
2 Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties set forth herein, the Company
agrees to sell the Offered Certificates to the Underwriters, and the
Underwriters agree severally, but not jointly, to purchase, from the Company,
the Offered Certificates in the respective principal amounts of the Classes of
Offered Certificates set forth in Schedule I hereto at the respective purchase
prices set forth therein (plus accrued interest, if applicable); provided,
however, that the purchase prices set forth in Schedule I hereto may be replaced
with updated purchase prices specified in a purchase price adjustment letter to
be delivered by the Underwriters to the Depositor at or prior to the Closing
Date.
3 Delivery and Payment. Delivery of and payment for the Offered
Certificates shall be made at the offices of Stroock & Stroock & Xxxxx LLP, 000
Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx at 10:00 a.m., Eastern Standard Time, on the
date specified in Schedule I hereto (or such later date not later than seven
business days after such specified date as the Underwriters shall designate),
which date and time may be changed by agreement between the Underwriters and the
Company or as provided herein (such date and time of delivery and payment for
the Offered Certificates being herein called the "Closing Date"). Delivery of
the Offered Certificates shall be made to the Underwriters, against payment by
the Underwriters of the purchase price therefor in immediately available funds
wired to such bank as may be designated by the Company, or such other manner of
payment as may be agreed upon by the Company and the Underwriters. The Offered
Certificates to be so delivered shall be in definitive fully registered form,
unless otherwise agreed, in such denominations and registered in such names as
the Underwriters may have requested in writing not less than two full business
days in advance of the Closing Date.
The Company agrees to have the Offered Certificates available for
inspection, checking and packaging by the Underwriters in the Borough of
Manhattan in The City of New York, not later than 10:00 a.m. on the business day
prior to the Closing Date.
4 Offering of the Offered Certificates. It is understood that the
Underwriters propose to offer the Offered Certificates for sale to the public as
set forth in the Final Prospectus.
5 Covenants of the Company. The Company covenants and agrees with the
Underwriters that:
(a) The Company will prepare the Preliminary Prospectus and the
Final Prospectus setting forth the amount of Offered Certificates covered
thereby and the terms thereof not otherwise specified in the Base Prospectus,
the expected proceeds to the Company from the sale of such Offered Certificates,
and such other information as the Underwriters and the Company may deem
appropriate in connection with the offering of such Offered Certificates. The
Company promptly will advise the Underwriters or the Underwriters' counsel (i)
when the Preliminary Prospectus and Final Prospectus shall each have been filed
or transmitted to the Commission for filing pursuant to Rule 424, (ii) when any
amendment to the Registration Statement shall have become effective or any
further supplement to the Final Prospectus shall have been filed with the
Commission, (iii) of any proposal or request to amend or supplement the
Registration Statement, the Base Prospectus or the Final Prospectus or any
request by the Commission for any additional information, (iv) when notice is
received from the Commission
-6-
that any post-effective amendment to the Registration Statement has become or
will become effective, (v) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or post-effective
amendment thereto or the institution or threatening of any proceeding for that
purpose, (vi) of the receipt by the Company of any notification with respect to
the suspension of the qualification of the Offered Certificates for sale in any
jurisdiction or the institution or threatening of any proceeding for that
purpose, (vii) of the occurrence of any event that would cause the Registration
Statement, as then in effect, to contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading, or the occurrence of an
event that would cause the Final Prospectus, as then in effect, to contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading.
The Company will use its best efforts to prevent the issuance of any
such stop order or suspension and, if issued, to obtain as soon as possible the
withdrawal thereof. The Company will cause the Preliminary Prospectus and the
Final Prospectus to each be transmitted to the Commission for filing pursuant to
Rule 424 under the 1933 Act or will cause the Preliminary Prospectus and the
Final Prospectus to each be filed with the Commission pursuant to said Rule 424.
(b) If, at any time when a prospectus relating to the Offered
Certificates is required to be delivered under the 1933 Act, any event occurs as
a result of which the Final Prospectus, as then amended or supplemented, would
contain 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 therein,
in light of the circumstances under which they were made, not misleading, or if
it shall be necessary to amend or supplement the Final Prospectus to comply with
the 1933 Act or the Regulations, the Company promptly will prepare and file with
the Commission, at the expense of the Company, subject to paragraph (a) of this
Section 5, an amendment or supplement that will correct such statement or
omission or an amendment that will effect such compliance and, if such amendment
or supplement is required to be contained in a post-effective amendment to the
Registration Statement, the Company will use its best efforts to cause such
amendment to the Registration Statement to be made effective as soon as
possible.
(c) The Company will furnish to each Underwriter and the
Underwriters' counsel, without charge, signed copies of the Registration
Statement (including exhibits thereto) and each amendment thereto which shall
become effective on or prior to the Closing Date, and so long as delivery of a
prospectus by an Underwriter may be required by the 1933 Act, as many copies of
any Preliminary Prospectus and the Final Prospectus and any amendments and
supplements thereto as the Underwriters may reasonably request.
(d) [Reserved]
(e) The Company will furnish such information, execute such
instruments and take such action, if any, as may be required to qualify the
Offered Certificates for sale under the laws of such jurisdictions as the
Underwriters may designate and will maintain such qualifications in effect so
long as required for the distribution of the Offered Certificates; provided,
however, that the Company shall not be required to qualify to do business in any
jurisdiction where it is not now qualified or to take any action that would
subject it to general or unlimited service of process in any jurisdiction where
it is not now subject to such service of process.
-7-
(f) The Company will pay or cause to be paid all costs and
expenses in connection with the transactions herein contemplated, including, but
not limited to, the fees and disbursements of its counsel; the costs and
expenses of printing (or otherwise reproducing) and delivering the Pooling and
Servicing Agreement and the Certificates; the fees, costs and expenses of the
Trustee (to the extent permitted under the Pooling and Servicing Agreement, and
except to the extent that another party is obligated to pay such amounts
thereunder); the fees and disbursements of accountants for the Company; the
costs and expenses in connection with the qualification or exemption of the
Offered Certificates under state securities or "blue sky" laws, including filing
fees and reasonable fees and disbursements of counsel in connection therewith,
in connection with the preparation of any blue sky survey and in connection with
any determination of the eligibility of the Offered Certificates for investment
by institutional investors and the preparation of any legal investment survey;
the expenses of printing any such blue sky survey and legal investment survey;
the cost and expenses in connection with the preparation, printing and filing of
the Registration Statement (including exhibits thereto), the Base Prospectus,
the Preliminary Prospectus and the Final Prospectus, the preparation and
production of this Agreement and the delivery to each Underwriter of such copies
of each Preliminary Prospectus and Final Prospectus as each Underwriter may
reasonably request; and the fees of the Rating Agencies (as defined in Section 8
hereof).
(g) The Company will enter into the Other Agreements on or prior
to the Closing Date.
(h) The Company will file with the Commission within fifteen days
after the issuance of the Offered Certificates a current report on Form 8-K
setting forth specific information concerning the Offered Certificates and the
Mortgage Loans to the extent that such information is not set forth in the Final
Prospectus. To the extent the Underwriters have complied with the terms of
Section 6 and Section 7 hereof, the Company will file with the Commission any
Free Writing Prospectus (as defined herein) delivered to investors in accordance
with Section 6 and Section 7 as the Company is required under the Regulations,
and shall do so within the applicable period of time prescribed by the
Regulations.
6 Representations, Warranties and Covenants of Each Underwriter. Each
Underwriter represents, warrants, covenants and agrees with, the Company that:
(a) It has not provided and will not provide to any potential
investor any information that would constitute "issuer information" within the
meaning of Rule 433(h) under the 1933 Act other than information contained in
the Preliminary Term Sheets (as defined herein).
(b) In disseminating information to potential investors, it has
complied and will continue to comply fully with the Regulations, including but
not limited to Rules 164 and 433 under the 1933 Act and the requirements
thereunder for filing and retention of free writing prospectuses.
-8-
(c) It has not disseminated and will not disseminate any
information relating to the Offered Certificates in reliance on Rule 167 or 426
under the 1933 Act.
(d) It has not disseminated and will not disseminate any
information relating to the Offered Certificates in a manner reasonably designed
to lead to its broad unrestricted dissemination within the meaning of Rule
433(d) under the 1933 Act.
(e) Each Free Writing Prospectus disseminated by such Underwriter
bore or will bear the applicable legends required under this Agreement, and no
Free Writing Prospectus disseminated by such Underwriter bore or will bear any
legend proscribed under this Agreement.
(f) Prior to entering into any Contract of Sale, the Underwriter
shall convey the Preliminary Prospectus to each prospective investor. The
Underwriter shall maintain sufficient records to document its conveyance of the
Preliminary Prospectus to each potential investor prior to the formation of the
related Contract of Sale and shall maintain such records as required by the
Regulations.
(g) In relation to each member state of the European Economic Area
which has implemented the Prospectus Directive (each, a "Relevant Member
State"), each Underwriter represents and agrees that with effect from and
including the date on which the Prospectus Directive is implemented in that
Relevant Member State (the "Relevant Implementation Date"), it has not made and
will not make an offer of Offered Certificates to the public in that Relevant
Member State prior to the publication of a prospectus in relation to the Offered
Certificates which has been approved by the competent authority in that Relevant
Member State or, where appropriate, approved in another Relevant Member State
and notified to the competent authority in that Relevant Member State, all in
accordance with the Prospectus Directive, except that it may, with effect from
and including the Relevant Implementation Date, make an offer of Offered
Certificates to the public in that Relevant Member State at any time:
(1) to legal entities which are authorized or regulated to
operate in the financial markets or, if not so authorized or
regulated, whose corporate purpose is solely to invest in
securities;
(2) to any legal entity which has two or more of (x) an
average of at least 250 employees during the last financial year;
(y) a total balance sheet of more than (euro)43,000,000 and (z) an
annual net turnover of more than (euro)50,000,000, as shown in its
last annual or consolidated accounts; or
(3) in any other circumstances which do not require the
publication by the issuer of a prospectus pursuant to Article 3 of
the Prospectus Directive.
For the purposes of this Section, the expression an "offer of Offered
Certificates to the public" in relation to any Offered Certificates in any
Relevant Member State means the communication in any form and by any means of
sufficient information on the terms of the offer and the Offered Certificates to
be offered so as to enable an investor to decide to purchase or subscribe for
the Offered Certificates, as the same may be varied in that member state by any
measure implementing the Prospectus Directive in that member state and the
expression "Prospectus Directive" means Directive 2003/71/EC and includes any
relevant implementing measure in each Relevant Member State.
-9-
(h) Each confirmation of sale with respect to Offered Certificates
delivered by an Underwriter shall, if such confirmation of sale is not preceded
or accompanied by delivery of the Final Prospectus, include a legend to the
following effect in compliance with Rule 173 under the Securities Act:
RULE 173 NOTICE: THIS SECURITY WAS SOLD PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT THAT IS ON FILE WITH THE SEC. YOU MAY
REQUEST A COPY OF THE FINAL PROSPECTUS AT XXX.XXX.XXX, OR BY
CALLING TOLL FREE 0-000-000-0000.
7 Offering Procedures. (a) The following terms have the specified
meanings for purposes of this Agreement:
(i) "Contract of Sale" has the same meaning as the term
"contract of sale" as used in Rule 159 under the 1933 Act.
(ii) "Derived Information" means any information regarding
the Offered Certificates as is disseminated by any Underwriter to
a potential investor, which information is prepared on the basis
of or derived from, but does not include, (A) Issuer Information,
(B) information contained in the Registration Statement, either
Prospectus or any amendment or supplement to any of them, taking
into account information incorporated therein by reference (other
than information incorporated by reference from any information
regarding the Offered Certificates that is disseminated by any
Underwriter to a potential investor) or (C) Pool Information .
(iii) "Free Writing Prospectus" means each Preliminary Term
Sheet and any other information relating to the Offered
Certificates disseminated by the Company or any Underwriter that
constitutes a "free writing prospectus" within the meaning of Rule
405 under the 1933 Act.
(iv) "Issuer Information" means (1) the information
contained in pages 5 through 49 of the First Preliminary Term
Sheet, pages 19 through 65 of the Second Preliminary Term Sheet
and pages 18 through 33 of the Third Preliminary Term Sheet, and
(2) any other information provided in writing by the Depositor to
the Underwriters specifically for dissemination to potential
investors, attached hereto as Exhibit D.
(v) "Preliminary Term Sheets" means, collectively the
preliminary term sheet dated August 16, 2006 (the "First
Preliminary Term Sheet"), the preliminary term sheet dated August
12, 2006 (the "Second Preliminary Term Sheet") and the preliminary
term sheet dated August 22, 2006 (the "Third Preliminary Term
Sheet") attached hereto as Exhibits C-1, C-2 and C-3,
respectively.
-10-
(b) Neither the Company nor any Underwriter will disseminate to
any potential investor any information relating to the Offered Certificates that
constitutes a "written communication" within the meaning of Rule 405 under the
1933 Act, other than the Preliminary Term Sheets, a Prospectus and, in the case
of the Underwriters, Derived Information, unless (i) if an Underwriter seeks to
disseminate such information, such Underwriter or Bear Xxxxxxx, as
representative of the Underwriters, has obtained the prior consent of the
Company, or (ii) if the Company seeks to disseminate such information, the
Company has obtained the prior consent of Bear Xxxxxxx, as representative of the
Underwriters.
An Underwriter may convey Derived Information to a potential investor
prior to entering into a Contract of Sale with such investor; provided, however,
that Derived Information shall not be distributed in a manner reasonably
designed to lead to its broad unrestricted dissemination within the meaning of
Rule 433(d) under the Securities Act. Each Underwriter shall maintain records of
any conveyance of Derived Information to potential or actual investors and shall
maintain such records as required by the Regulations.
Neither the Company nor any Underwriter shall disseminate or file with
the Commission any information relating to the Offered Certificates in reliance
on Rule 167 or 426 under the 1933 Act, nor shall any Underwriter disseminate any
Free Writing Prospectus in a manner reasonably designed to lead to its broad
unrestricted dissemination within the meaning of Rule 433(d) under the 1933 Act.
(c) Each Free Writing Prospectus shall bear the applicable legends
substantially in the form specified in Exhibit B-1 hereto, and may bear the
applicable legends substantially in the form specified in Exhibit B-2 hereto. A
Free Writing Prospectus shall not include any legend of a type specified in
Exhibit B-3 hereto.
(d) Each Underwriter shall deliver (directly or through Bear
Xxxxxxx, as representative of the Underwriters) to the Company and its counsel a
copy, in electronic form, of each Free Writing Prospectus disseminated by such
Underwriter that is required to be filed with the Commission, not later than two
business days prior to the date on which such Free Writing Prospectus is
required under the Regulations to be so filed.
8 Conditions to the Purchase of the Offered Certificates. The
obligations of each Underwriter hereunder to purchase the Offered Certificates
shall be subject to the accuracy of the representations and warranties on the
part of the Company contained herein as of the date hereof, as of the date of
the effectiveness of any amendment to the Registration Statement filed prior to
the Closing Date and as of the Closing Date, to the accuracy of the statements
of the Company made in any certificates delivered pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder and to
the following additional conditions:
(a) The Registration Statement shall have become effective and no
stop order suspending the effectiveness of the Registration Statement, as
amended from time to time, shall have been issued and not withdrawn and no
proceedings for that purpose shall have been instituted or threatened; and the
Final Prospectus shall have been filed or transmitted for filing with the
Commission in accordance with Rule 424 under the 1933 Act.
-11-
(b) The Company shall have delivered to each Underwriter a
certificate of the Company, signed by the President or a vice president of the
Company and dated the Closing Date, to the effect that the signer of such
certificate has carefully examined the Registration Statement, the Final
Prospectus and this Agreement and that: (i) the representations and warranties
of the Company in this Agreement are true and correct in all material respects
at and as of the Closing Date with the same effect as if made on the Closing
Date, (ii) the Company has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or prior to the
Closing Date, (iii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted or, to the Company's knowledge, threatened, and (iv) nothing has
come to the attention of the signer hereof on behalf of the Company that would
lead said signer to believe that the Final Prospectus contains any untrue
statement of a material fact or omits to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(c) The Underwriters and the Company shall have received a
negative assurance letter of XxXxx Xxxxxx LLP and Stroock & Stroock & Xxxxx LLP
with respect to each Prospectus;
(d) The Underwriters shall have received from XxXxx Xxxxxx LLP and
counsel for the Company, one or more favorable opinions, dated the Closing Date,
to the effect that:
(i) The Registration Statement has become effective under
the 1933 Act; to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has
been issued and not withdrawn, no proceedings for that purpose
have been instituted or threatened and not terminated; and the
Registration Statement, as of its effective date (other than the
financial and statistical information contained therein, as to
which such counsel need express no opinion), complied as to form
in all material respects with the applicable requirements of the
1933 Act and the Regulations thereunder;
(ii) To the best knowledge of such counsel, there are no
material contracts, indentures or other documents of a character
required to be described or referred to in the Registration
Statement or the Final Prospectus or to be filed as exhibits to
the Registration Statement other than those described or referred
to therein or filed or incorporated by reference as exhibits
thereto;
(iii) This Agreement has been duly authorized, executed and
delivered by the Company;
(iv) Each of the Pooling and Servicing Agreement and the
Mortgage Loan Purchase Agreement has been duly authorized,
executed and delivered by the Company and constitutes a legal,
valid and binding agreement of the Company, enforceable against
the Company in accordance with its terms, subject, as to
enforceability, to bankruptcy, insolvency, reorganization,
moratorium and other similar laws affecting creditors' rights
generally and to general principles of equity, regardless of
whether enforcement is sought in a proceeding in equity or at law,
except insofar as the indemnification provisions therein may be
limited by applicable law;
-12-
(v) The Indemnification Agreement has been duly authorized,
executed and delivered by the Company and constitutes a legal,
valid and binding agreement of the Company, except insofar as the
indemnification provisions therein may be limited by applicable
law;
(vi) The direction by the Company to the Trustee to
execute, authenticate and deliver the Offered Certificates has
been duly authorized by the Company, and the Offered Certificates,
when executed and authenticated in the manner contemplated in the
Pooling and Servicing Agreement, will be validly issued and
outstanding and entitled to the benefits of the Pooling and
Servicing Agreement;
(vii) The Offered Certificates and the Pooling and
Servicing Agreement conform to the descriptions thereof contained
in the Final Prospectus;
(viii) The Pooling and Servicing Agreement is not required
to be qualified under the Trust Indenture Act of 1939, as amended,
and neither the Company nor the Trust is required to be registered
under the Investment Company Act; and
(ix) Assuming compliance with the Pooling and Servicing
Agreement for federal income tax purposes, each segregated pool of
assets identified as a REMIC in the Pooling and Servicing
Agreement will qualify as a REMIC within the meaning of Section
860D of the Internal Revenue Code of 1986, as amended.
(e) The Underwriters shall have received from the Counsel of the
Company or an affiliate of the Company, a favorable opinion, dated the Closing
Date, to the effect that:
(i) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the
State of Delaware and has all corporate power and authority
necessary to own or hold its properties and to conduct its
business as now conducted by it and to enter into and perform its
obligations under this Agreement and the Other Agreements;
(ii) To the best knowledge of such counsel, there are no
actions, proceedings or investigations pending or threatened
against or affecting the Company before or by any court,
arbitrator, administrative agency or other governmental authority
reasonably likely to be adversely determined that would materially
and adversely affect the ability of the Company to carry out the
transactions contemplated in this Agreement or the Other
Agreements;
-13-
(iii) No consent, approval, authorization or order of, or
filing or registration with, any state or federal court or
governmental agency or body is required for the consummation by
the Company of the transactions contemplated herein, except such
as may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Offered
Certificates and except any recordation of the assignments of the
Mortgage Loans to the Trustee pursuant to the Pooling and
Servicing Agreement that have not yet been completed; and
(iv) The Company is not in violation of its certificate of
incorporation or by-laws or in default under any agreement,
indenture or instrument the effect of which violation or default
would be material to the Company, and none of (A) the issuance and
sale of the Offered Certificates, (B) the execution or delivery of
or performance under this Agreement or the Other Agreements, and
(C) the consummation of any other of the transactions contemplated
herein or therein will conflict with or result in a breach or
violation of any term or provision of, or constitute a default (or
an event which with the passing of time or notification, or both,
would constitute a default) under, the certificate of
incorporation or by-laws of the Company, or, to the knowledge of
such counsel, any indenture or other agreement or instrument to
which the Company or any of its affiliates is a party or by which
it or any of them is bound, or any New York or federal statute or
regulation applicable to the Company or any of its affiliates or,
to the knowledge of such counsel, any order of any New York or
federal court, regulatory body, administrative agency or
governmental body having jurisdiction over the Company or any of
its affiliates.
(f) The Underwriters shall have received from the counsel for
Xxxxx Fargo Bank, N.A. ("Xxxxx Fargo"), as master servicer and securities
administrator, a favorable opinion, dated the Closing Date, to the effect that:
(i) Xxxxx Fargo has been duly organized and is validly
existing as a corporation in good standing under the laws of its
state of incorporation and has all corporate power and authority
necessary to own or hold its properties and to conduct its
business as now conducted by it and to enter into and perform its
obligations under the Pooling and Servicing Agreement;
(ii) To the best knowledge of such counsel, there are no
actions, proceedings or investigations pending or threatened
against or affecting Xxxxx Fargo before or by any court,
arbitrator, administrative agency or other governmental authority
reasonably likely to be adversely determined that would materially
and adversely affect the ability of Xxxxx Fargo to carry out the
transactions contemplated in the Pooling and Servicing Agreement;
(iii) No consent, approval, authorization or order of, or
filing or registration with, any state or federal court or
governmental agency or body is required for the consummation by
Xxxxx Fargo of the transactions contemplated herein, except any
recordation of the assignments of the Mortgage Loans master
serviced by Xxxxx Fargo to the Trustee pursuant to the Pooling and
Servicing Agreement that have not yet been completed; and
-14-
(iv) Xxxxx Fargo is not in violation of its certificate of
incorporation or by-laws or in default under any agreement,
indenture or instrument the effect of which violation or default
would be material to Xxxxx Fargo in its capacities as master
servicer and securities administrator, and neither (A) the
execution or delivery of or performance under the Pooling and
Servicing Agreement nor (B) the consummation of any other of the
transactions contemplated therein will conflict with or result in
a breach or violation of any term or provision of, or constitute a
default (or an event which with the passing of time or
notification, or both, would constitute a default) under, the
certificate of incorporation or by-laws of Xxxxx Fargo, or, to the
knowledge of such counsel, any indenture or other agreement or
instrument to which Xxxxx Fargo or any of its affiliates is a
party or by which it or any of them is bound, or any state or
federal statute or regulation applicable to Xxxxx Fargo or any of
its affiliates or, to the knowledge of such counsel, any order of
any state or federal court, regulatory body, administrative agency
or governmental body having jurisdiction over Xxxxx Fargo or any
of its affiliates.
In addition, such counsel shall state that it has no
reason to believe that the sections of each of the Preliminary Prospectus
Supplement and the Final Prospectus Supplement captioned "The Master Servicer"
and "The Pooling and Servicing Agreement--The Securities Administrator" as of
the date of each of the Preliminary Prospectus Supplement and the Final
Prospectus Supplement, and as of the date that the applicable sections are
amended or supplemented, contained any untrue statement of a material fact or
omitted to state a material fact necessary to make the statements in such
applicable sections, in the light of the circumstances in which they were made,
not misleading; it being understood that such counsel need express no opinion or
belief as to the financial and statistical statements or other financial data
contained in such sections.
(g) The Underwriters shall have received from counsel or counsels
to the Seller, one or more favorable opinions, dated the Closing Date, to the
effect that:
(i) The Seller has been duly organized and is validly
existing as a corporation in good standing under the laws of its
state of incorporation and has all corporate power and authority
necessary to own or hold its properties and to conduct its
business as now conducted by it and to enter into and perform its
obligations under this Agreement and the Other Agreements;
(ii) To the best knowledge of such counsel, there are no
actions, proceedings or investigations pending or threatened
against or affecting such Seller before or by any court,
arbitrator, administrative agency or other governmental authority
reasonably likely to be adversely determined that would materially
and adversely affect the ability of the Seller to carry out the
transactions contemplated in this Agreement and the Other
Agreements;
-15-
(iii) No consent, approval, authorization or order of, or
filing or registration with, any state or federal court or
governmental agency or body is required for the consummation by
the Seller of the transactions contemplated herein;
(iv) The Seller is not in violation of its certificate of
incorporation or by-laws or in default under any agreement,
indenture or instrument the effect of which violation or default
would be material to the Seller, and neither (A) the execution or
delivery of or performance under this Agreement and the Other
Agreements nor (B) the consummation of any other of the
transactions contemplated therein will conflict with or result in
a breach or violation of any term or provision of, or constitute a
default (or an event which with the passing of time or
notification, or both, would constitute a default) under, the
certificate of incorporation or by-laws of the Seller, or, to the
knowledge of such counsel, any indenture or other agreement or
instrument to which the Seller or any of its affiliates is a party
or by which it or any of them is bound, or any state or federal
statute or regulation applicable to the Seller or any of its
affiliates or, to the knowledge of such counsel, any order of any
state or federal court, regulatory body, administrative agency or
governmental body having jurisdiction over the Seller or any of
its affiliates; and
(v) The conveyance of the Mortgage Loans from the Seller to
the Company pursuant to the Mortgage Loan Purchase Agreement will
be recognized as a "true sale" and certain other related
bankruptcy and insolvency matters.
In addition, such counsel shall state that it has no
reason to believe that the sections of each of the Preliminary Prospectus
Supplement and the Final Prospectus Supplement captioned "The Sponsor and
Seller," "Mortgage Loan Origination--The Seller's Underwriting Standards--The
Seller's Underwriting Process" and "The Servicers--Xxxxxxxxx Mortgage Home
Loans, Inc." as of the date of each of the Preliminary Prospectus Supplement and
the Final Prospectus Supplement, and as of the date that the sections are
amended or supplemented, if amended or supplemented, contained any untrue
statement of a material fact or omitted to state a material fact necessary to
make the statements in such sections, in the light of the circumstances in which
they were made, not misleading; it being understood that such counsel need
express no opinion or belief as to the financial and statistical statements or
other financial data contained in such section.
(h) The Underwriters shall receive from KPMG LLP, certified public
accountants, one or more letters, dated the date on which each of the
Preliminary Prospectus Supplement and Final Prospectus Supplement is dated and
printed and satisfactory in form and substance to the Underwriters and the
Underwriters' counsel, to the effect that such accountants have performed
certain specified procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature set forth in the
Preliminary Prospectus Supplement and the Final Prospectus Supplement, as
applicable, under the caption "The Mortgage Loan Pool" and in Schedule A thereto
agrees with the general accounting records of THML or the Company, as
applicable.
-16-
(i) The Underwriters shall have received from each of Standard &
Poor's Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc. and
Xxxxx'x Investors Service, Inc. (each, a "Rating Agency" and collectively, the
"Rating Agencies") a rating letter assigning to the Offered Certificates the
ratings indicated on Schedule I hereto, none of which ratings shall have been
withdrawn.
(j) The Underwriters shall have received from counsel for the
Trustee a favorable opinion, dated the Closing Date, in form and substance
satisfactory to the Underwriters and the Underwriters' counsel, to the effect
that the Pooling and Servicing Agreement has been duly authorized, executed and
delivered by the Trustee and constitutes the legal, valid, binding and
enforceable agreement of the Trustee, subject, as to enforceability, to
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights in general and by general principles of equity
regardless of whether enforcement is considered in a proceeding in equity or at
law, and as to such other matters as may be agreed upon by the Underwriters and
the Trustee.
(k) The Underwriters shall have received such further information,
certificates, documents and opinions as it may reasonably have requested not
less than three business days prior to the Closing Date.
(l) All proceedings in connection with the transactions
contemplated by this Agreement and all documents incident hereto shall be
satisfactory in form and substance to the Underwriters and the Underwriters'
counsel, and the Underwriters and such counsel shall have received such
information, certificates and documents as it or they may have reasonably
requested.
If any of the conditions specified in this Section 8 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
if the Company is in breach of any covenants or agreements contained herein or
if any of the opinions and certificates referred to above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Underwriters and the Underwriters' counsel, this Agreement
and all the obligations of the Underwriters hereunder may be canceled by the
Underwriters at, or at any time prior to, the Closing Date. Notice of such
cancellation shall be given to the Company in writing, or by telephone or
facsimile transmission confirmed in writing.
9 Indemnification and Contribution. The Company agrees with the
Underwriters that:
(a) The Company will indemnify and hold harmless each Underwriter
and each Person who controls such Underwriter within the meaning of either the
1933 Act or the 1934 Act against any and all losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject
under the 1933 Act, the 1934 Act, or other federal or state law or regulation,
at common law or otherwise, insofar as such losses, claims, damages or
liabilities
-17-
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in (w) any
Derived Information disseminated by such Underwriter, (x) any information (other
than Derived Information) the Preliminary Term Sheets, any Issuer Information in
any Free Writing Prospectus or any Prospectus disseminated by such Underwriter,
(y) the Registration Statement or in any amendment thereof, or the omission or
alleged omission to state in the Registration Statement or any amendment thereof
a material fact required to be stated therein or necessary to make the
statements therein not misleading, or (z) any untrue statement or alleged untrue
statement of a material fact contained in the Base Prospectus, the Preliminary
Prospectus or the Final Prospectus, or the omission or alleged omission to state
in the Base Prospectus, the Preliminary Prospectus or the Final Prospectus or in
any amendment or supplement thereto a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, and agrees to reimburse
the Seller such indemnified party for any legal or other expenses reasonably
incurred by it in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that (i) the Company will
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with (A) the information in each of the Preliminary Prospectus
Supplement and the Final Prospectus Supplement contained under the first and
last sentences under the headings "Summary of Terms--Servicers" and
"--Originators," the third and fourth sentences of the first paragraph and the
last paragraph under the heading "Summary of Terms--The Mortgage Loans," under
the headings "--The Mortgage Loan Pool," "--Aggregate Mortgage Loan Summary,"
the first paragraph under the heading "Risk Factors-- The yield on the
certificates may be affected by changes in interest rates," the first sentence
under the heading "Risk Factors--Loan prepayments may adversely affect the
average life of, and rate of return on, your certificates," the first sentence
under the heading "Risk Factors--Mortgage loans with interest-only payments,"
the first sentence of each of the two bullet points under the heading "Risk
Factors--Certain features of the mortgage loans may adversely affect your
investment in the certificates," the first sentence under the heading "Risk
Factors--Conversion or modification of the mortgage loans may reduce the yields
on the certificates," the first sentence under the heading "Risk
Factors--Geographic concentration of the mortgage loans may adversely affect
your certificates," under the headings "The Mortgage Loan Pool," "Static Pool
Information" (including information posted on
xxxx://xxx.xxxxxxx.xxx/xxxxxxxxxxx?xxxxxxxXXXXXXXXX contained in the pdf file
entitled "Xxxxxxxxx 2006-5"), "The Sponsor and Seller," "Mortgage Loan
Origination--The Seller's Underwriting Standards," "Affiliations and
Relationships" (limited to information regarding affiliates of Xxxxxxxxx
described in such section), "The Servicers--Xxxxxxxxx Mortgage Home Loans, Inc."
and the first sentence of the fifth, sixth and eighth paragraphs under the
heading "Yield, Prepayment and Maturity Considerations--Prepayment
Considerations and Risks" or arise out of or are based upon information provided
by the Servicers or the Seller to the Underwriters specifically for use in
connection with any Free Writing Prospectus or (B) written information furnished
to the Company as herein stated by an Underwriter specifically for use in
connection with the preparation of any Free Writing Prospectus, other than a
misstatement or omission arising from a misstatement or omission in the
information provided by the Company concerning the assets of the Trust (such
information, the "Company Provided Information"), and (ii) such indemnity with
respect to the Base Prospectus or the Preliminary Prospectus shall not
-18-
inure to any Underwriter or any Person controlling any Underwriter from which
the Person asserting any such loss, claim, damage or liability purchased the
Offered Certificates that are the subject thereof, if such Person did not
receive a copy of the Final Prospectus at or prior to the confirmation of the
sale of such Offered Certificates to such Person in any case where such delivery
is required by the 1933 Act and the untrue statement or omission of a material
fact contained in the Base Prospectus or in any such Preliminary Prospectus was
corrected in the Final Prospectus. This indemnity will be in addition to any
liability that the Company may otherwise have.
(b) The Underwriters severally, and not jointly, agree to
indemnify and hold harmless the Company, each of its directors, each of its
officers who signs the Registration Statement, and each Person, if any, who
controls the Company within the meaning of either the 1933 Act or the 1934 Act,
to the same extent as the foregoing indemnity from the Company to the
Underwriters, but only with reference to Underwriters' Information furnished to
the Company as herein stated by the Underwriters specifically for use in
connection with the preparation of (i) the documents referred to in the
foregoing indemnity or (ii) any Free Writing Prospectus, except to the extent
that such misstatement or omission arises from a misstatement or omission in the
Company Provided Information. This indemnity will be in addition to any
liability that the Underwriters may otherwise have. The Company and each
Underwriter acknowledges that the Underwriters' Information constitutes the only
information furnished in writing by the Underwriters for inclusion in the
documents referred to in the foregoing indemnity, and the Underwriters each
confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 9, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability that it may have to any indemnified party
otherwise than under this Section 9. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein, and to
the extent that it may elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such indemnified party,
to assume the defense thereof, with counsel satisfactory to such indemnified
party; provided, however, that if the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party or
parties shall have reasonably concluded that there may be legal defenses
available to it or them and/or other indemnified parties that are different from
or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to elect separate counsel to assert such
legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to assume the
defense of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof, unless (i) the indemnified party shall have employed separate counsel
in connection with the assertion of legal defenses in accordance with the
proviso to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
-19-
separate counsel, approved by the Underwriters in the case of paragraph (a) of
this Section 9), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that, if clause (i)
or (iii) is applicable, such liability shall only be in respect of the counsel
referred to in such clause (i) or (iii).
(d) If the indemnification provided for in this Section 9 shall
for any reason be unavailable to an indemnified party under this Section 9, then
each indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of the aggregate losses, claims, damages and
liabilities referred to in paragraph (a) or (b) above, in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other from the offering of the Offered
Certificates or, if the allocation referred to above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to above but also the relative fault of the Company
on the one hand and the Underwriters on the other, in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations; provided,
however, that each Underwriter shall not be responsible for more than the amount
of its underwriting discounts and commissions; and provided, further, that no
Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933 Act) shall be entitled to contribution from any Person that
was not guilty of such fraudulent misrepresentation. For purposes of this
Section 9, a Person, if any, that controls any Underwriter within the meaning of
either the 1933 Act or the 1934 Act shall have the same rights to contribution
as does such Underwriter and each Person, if any, that controls the Company
within the meaning of either the 1933 Act or the 1934 Act, each officer of the
Company who shall have signed the Registration Statement and each director of
the Company shall have the same rights to contribution as the Company. Any party
entitled to contribution will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which a claim
for contribution may be made against another party or parties under this
paragraph (d), notify such party or parties from whom contribution may be
sought, but the omission to so notify such party or parties shall not relieve
the party or parties from whom contribution may be sought from any other
obligation it or they may have hereunder or otherwise than under this paragraph
(d).
-20-
10 Termination. (a) This Agreement shall be subject to termination in
the Underwriters' absolute discretion, by notice given to the Company prior to
delivery of and payment for the Offered Certificates, if, prior to such time,
(i) trading of securities generally on the New York Stock Exchange or the
American Stock Exchange shall have been suspended or materially limited, (ii) a
general moratorium on commercial banking activities in New York shall have been
declared by either federal or New York State authorities or (iii) there shall
have occurred any material outbreak or declaration of hostilities or other
calamity or crisis the effect of which on the financial markets of the United
States is such as to make it, in the Underwriters' reasonable judgment,
impracticable to market the Offered Certificates on the terms specified herein.
(b) If the sale of the Offered Certificates shall not be
consummated because any condition to the obligations of the Underwriters set
forth in Section 8 hereof is not satisfied or because of any refusal, inability
or failure on the part of the Company to perform any agreement herein or comply
with any provision hereof other than by reason of the default of the
Underwriters, the Company shall reimburse the Underwriters for the reasonable
fees and expenses of the Underwriters' counsel and for such other out-of-pocket
expenses as shall have been incurred by the Underwriters in connection with this
Agreement and the proposed purchase of the Offered Certificates, and upon demand
the Company shall pay the full amount thereof to the Underwriters.
(c) This Agreement will survive delivery of and payment for the
Offered Certificates. The provisions of Section 9 and this Section 10(c) shall
survive the termination or cancellation of this Agreement.
11 No Advisory or Fiduciary Responsibility. The Company acknowledges
and agrees that: (i) the purchase and sale of the Offered Certificates pursuant
to this Agreement, including the determination of the public offering price of
the Offered Certificates and any related discounts and commissions, is an
arm's-length commercial transaction between the Company and the Underwriters,
and the Company is capable of evaluating and understanding and understands and
accepts the terms, risks and conditions of the transactions contemplated by this
Agreement; (ii) in connection with each transaction contemplated hereby and the
process leading to such transaction each Underwriter is and has been acting
solely as a principal and is not the financial advisor, agent or fiduciary of
the Company or its affiliates, stockholders, creditors or employees or any other
party; (iii) each Underwriter has not assumed or will not assume an advisory,
agency or fiduciary responsibility in favor of the Company with respect to any
of the transactions contemplated hereby or the process leading thereto
(irrespective of whether an Underwriter has advised or is currently advising the
Company on other matters) or any other obligation to the Company except the
obligations expressly set forth in this Agreement; (iv) each Underwriter and its
respective affiliates may be engaged in a broad range of transactions that
involve interests that differ from those of the Company and that the Underwriter
has no obligation to disclose any of such interests by virtue of any advisory,
agency or fiduciary relationship; and (v) the Underwriters have not provided any
legal, accounting, regulatory or tax advice with respect to the offering
contemplated hereby and the Company has consulted its own legal, accounting,
regulatory and tax advisors to the extent it deemed appropriate.
-21-
This Agreement supersedes all prior agreements and understandings
(whether written or oral) between the Company and the Underwriters, or any of
them, with respect to the subject matter hereof. The Company hereby waives and
releases, to the fullest extent permitted by law, any claims that the Company
may have against any of the Underwriters with respect to any breach or alleged
breach of agency or fiduciary duty.
12 Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Underwriters, will be mailed,
delivered or transmitted by facsimile and confirmed to (i) Bear, Xxxxxxx & Co.
Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Legal (ii) Banc
of America Securities LLC, 000 X. Xxxxx Xxxxxx, Xxxxxxxxx, XX 00000 (iii) Credit
Suisse Securities (USA) LLC, 00 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
attention: Legal Department; (iv) Greenwich Capital Markets, Inc. at 000
Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000, attention: Legal Department; and
(iv) Xxxxxx Brothers Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; and if
sent to the Company, will be mailed, delivered or transmitted by facsimile and
confirmed to it at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
13 Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling Persons referred to in Section 9, and their
successors and assigns, and no other Person will have any right or obligation
hereunder.
14 Applicable Law; Counterparts. This Agreement will be governed by and
construed in accordance with the laws of the State of New York. This Agreement
may be executed in any number of counterparts, each of which shall for all
purposes be deemed to be an original and all of which shall together constitute
but one and the same instrument.
-22-
If the foregoing is in accordance with each Underwriter's understanding
of our agreement, please sign and return to us a counterpart hereof, whereupon
this letter and such Underwriter's acceptance shall represent a binding
agreement between the Company and such Underwriter.
Very truly yours,
STRUCTURED ASSET MORTGAGE
INVESTMENTS II INC.
By: /s/ Xxxxxx X. Xxxxxxxxx, Xx.
-------------------------------------
Name: Xxxxxx X. Xxxxxxxxx, Xx.
Title: Vice President
The foregoing Agreement is hereby
confirmed and accepted as of
the date first above written.
BEAR, XXXXXXX & CO. INC.
By: /s/ Xxxxx Xxxxxxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxxxxxx
Title: Senior Managing Director
BANC OF AMERICA SECURITIES LLC
By: /s/ Xxxxx X. Good
---------------------------------
Name: Xxxxx X. Good
Title: Vice President
CREDIT SUISSE SECURITIES (USA) LLC
By: /s/ Xxxxx X. Xxxx
---------------------------------
Name: Xxxxx X. Xxxx
Title: Director
GREENWICH CAPITAL MARKETS, INC.
By: /s/ Xxxx Xxxxx
---------------------------------
Name: Xxxx Xxxxx
Title: Vice President
XXXXXX BROTHERS INC.
By: /s/ Xxxx Xxxxx
---------------------------------
Name: Xxxx Xxxxx
Title: Vice President
-23-
SCHEDULE I
Underwriting Agreement dated August 29, 2006.
As used in this Agreement, the term "Registration Statement" refers to the
Registration Statement on Form S-3, File No. 333-132232.
Closing Date: August 31, 2006.
Preliminary Pool Balance: $2,691,918,134.45.
Cut-Off Date: August 1, 2006, except for each Mortgage Loan originated after
April 1, 2006, but on or before August 21, 2006, the date of its origination.
Title, Purchase Price and Description of Offered Certificates:
Structured Asset Mortgage Investments II Inc., Xxxxxxxxx Mortgage
Securities Trust 2006-5, Mortgage Loan Pass-Through Certificates,
Series 2006-5, Classes designated below:(1)
ORIGINAL CLASS
CERTIFICATE XXXXX'X / S&P
CLASS PRINCIPAL BALANCE INITIAL PASS-THROUGH RATE RATING
----------------------------------------------------------------------------------------------------------
Class A-1 $2,340,859,000 LIBOR + 0.12% Aaa / AAA
Class A-2 $260,095,000 LIBOR + 0.18% Aaa / AAA
Class A-X $2,600,954,000 Variable Aaa / AAA
(Notional)
Class A-R $100 Weighted Average Aaa / AAA
Class B-1 $34,930,000 Weighted Average Aa2 / N/R
Class B-2 $21,495,000 Weighted Average A2 / N/R
Class B-3 $12,091,000 Weighted Average Baa2 / N/R
Original
Certificate
Principal Balance
of Class A-1 Underwriter's Purchase
Underwriter Certificates Discount Price
------------------------------------ ------------------- ---------------- -------------
Bear, Xxxxxxx & Co. Inc............ $ 1,638,601,400 0.1563% 100.00000%
Banc of America Securities LLC..... $ 175,564,400 0.1563% 100.00000%
Credit Suisse Securities (USA) LLC. $ 175,564,400 0.1563% 100.00000%
Greenwich Capital Markets, Inc..... $ 175,564,400 0.1563% 100.00000%
Xxxxxx Brothers Inc................ $ 175,564,400 0.1563% 100.00000%
---------------
Total... $ 2,340,859,000
===============
----------------
(1) Other Certificates issued pursuant to the Pooling and Servicing
Agreement: Xxxxxxxxx Mortgage Securities Trust 2006-5, Mortgage Loan
Pass-Through Certificates, Series 2006-5, Class B-4, Class B-5 and Class B-6
Certificates.
-24-
Original
Certificate
Principal Balance
of Class A-2 Underwriter's Purchase
Underwriter Certificates Discount Price
------------------------------------ ------------------- ---------------- -------------
Bear, Xxxxxxx & Co. Inc............ $ 182,066,600 0.1563% 100.00000%
Banc of America Securities LLC..... $ 19,507,100 0.1563% 100.00000%
Credit Suisse Securities (USA) LLC. $ 19,507,100 0.1563% 100.00000%
Greenwich Capital Markets, Inc..... $ 19,507,100 0.1563% 100.00000%
Xxxxxx Brothers Inc................ $ 19,507,100 0.1563% 100.00000%
-------------
Total... $ 260,095,000
=============
Original
Certificate
Notional Balance
of Class A-X Underwriter's Purchase
Underwriter Certificates Discount Price
----------------------------------- ------------------- ---------------- -------------
Bear, Xxxxxxx & Co. Inc............ $1,820,667,600 0.0000% 1.25000%
Banc of America Securities LLC..... $ 195,071,600 0.0000% 1.25000%
Credit Suisse Securities (USA) LLC. $ 195,071,600 0.0000% 1.25000%
Greenwich Capital Markets, Inc..... $ 195,071,600 0.0000% 1.25000%
Xxxxxx Brothers Inc................ $ 195,071,600 0.0000% 1.25000%
--------------
Total... $2,600,954,000
==============
Original
Certificate
Principal Balance
of Class A-R Underwriter's Purchase
Underwriter Certificates Discount Price
------------------------------------- ------------------- ---------------- -------------
Greenwich Capital Markets, Inc...... $ 100 N/A N/A
-------------------
Total.... $ 100
===================
Original
Certificate
Principal Balance
of Class B-1 Underwriter's Purchase
Underwriter Certificates Discount Price
------------------------------------ ------------------- ---------------- -------------
Bear, Xxxxxxx & Co. Inc............ $ 24,450,800 0.0000% 101.00000%
Banc of America Securities LLC..... $ 2,619,800 0.0000% 101.00000%
Credit Suisse Securities (USA) LLC. $ 2,619,800 0.0000% 101.00000%
Greenwich Capital Markets, Inc..... $ 2,619,800 0.0000% 101.00000%
Xxxxxx Brothers Inc................ $ 2,619,800 0.0000% 101.00000%
------------
Total... $ 34,930,000
============
-25-
Original
Certificate
Principal Balance
of Class B-2 Underwriter's Purchase
Underwriter Certificates Discount Price
------------------------------------ ------------------- ---------------- -------------
Bear, Xxxxxxx & Co. Inc............ $ 15,046,600 0.0000% 99.906250%
Banc of America Securities LLC..... $ 1,612,100 0.0000% 99.906250%
Credit Suisse Securities (USA) LLC. $ 1,612,100 0.0000% 99.906250%
Greenwich Capital Markets, Inc..... $ 1,612,100 0.0000% 99.906250%
Xxxxxx Brothers Inc................ $ 1,612,100 0.0000% 99.906250%
------------
Total... $ 21,495,000
============
Original
Certificate
Principal Balance
of Class B-3 Underwriter's Purchase
Underwriter Certificates Discount Price
------------------------------------ ------------------- ---------------- -------------
Bear, Xxxxxxx & Co. Inc............ $ 8,463,800 0.0000% 98.125000%
Banc of America Securities LLC..... $ 906,800 0.0000% 98.125000%
Credit Suisse Securities (USA) LLC. $ 906,800 0.0000% 98.125000%
Greenwich Capital Markets, Inc..... $ 906,800 0.0000% 98.125000%
Xxxxxx Brothers Inc................ $ 906,800 0.0000% 98.125000%
-----------
Total... $12,091,000
===========
-26-
EXHIBIT A
Underwriters' Information:
The information set forth in the last paragraph on the front cover and
in the third and fourth paragraphs under the caption "Method of Distribution" in
each of the Preliminary Prospectus Supplement and the Final Prospectus
Supplement.
A-1
EXHIBIT B-1
(I) A legend in substantially the following form must appear on each
Free Writing Prospectus:
THE ISSUER HAS FILED OR WILL FILE WITH THE SEC A REGISTRATION STATEMENT
(INCLUDING A BASE PROSPECTUS AND ANY PROSPECTUS SUPPLEMENT) AND ANY
RELATED ISSUER FREE-WRITING PROSPECTUS WITH RESPECT TO THIS OFFERING
(THE "OFFERING DOCUMENTATION"). YOU MAY GET THE OFFERING DOCUMENTATION
(WHEN COMPLETED) FOR FREE BY SEARCHING THE SEC ONLINE DATABASE
(XXXXX(R)) AT XXX.XXX.XXX. ALTERNATIVELY, YOU MAY OBTAIN A COPY OF THE
OFFERING DOCUMENTATION BY CALLING 0-000-000-0000.
(II) Legends substantially in the following form must appear on each
Preliminary Term Sheet (including each version thereof), any amendment thereof
or supplement thereto:
THIS FREE WRITING PROSPECTUS IS BEING DELIVERED TO YOU SOLELY TO
PROVIDE YOU WITH INFORMATION ABOUT THE OFFERING AND TO SOLICIT AN OFFER
TO PURCHASE THE OFFERED SECURITIES. 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 SUCH SECURITIES. ANY SUCH COMMITMENT
SHALL BE SUBJECT TO THE CONDITIONS SPECIFIED BELOW.
THIS FREE WRITING PROSPECTUS IS NOT REQUIRED TO CONTAIN ALL OF THE
INFORMATION THAT IS REQUIRED TO BE INCLUDED IN THE BASE PROSPECTUS AND
THE PROSPECTUS SUPPLEMENT. THE INFORMATION IN THIS FREE WRITING
PROSPECTUS IS PRELIMINARY AND IS SUBJECT TO COMPLETION OR CHANGE. THE
INFORMATION IN THIS FREE WRITING PROSPECTUS, IF CONVEYED PRIOR TO THE
TIME OF YOUR COMMITMENT TO PURCHASE THE OFFERED SECURITIES, SUPERCEDES
ANY PRIOR VERSION OF THIS FREE WRITING PROSPECTUS AND ANY INFORMATION
CONTAINED IN ANY PRIOR SIMILAR FREE WRITING PROSPECTUS RELATING TO
THESE SECURITIES. IF A PRELIMINARY PROSPECTUS IS CONVEYED TO YOU PRIOR
TO YOUR COMMITMENT TO PURCHASE, THAT DOCUMENT SUPERSEDES ALL OTHER
INFORMATION PROVIDED TO YOU CONCERNING THE OFFERED SECURITIES.
THIS FREE WRITING PROSPECTUS IS NOT AN OFFER TO SELL OR A SOLICITATION
OF AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE SUCH OFFER,
SOLICITATION OR SALE IS NOT PERMITTED.
THE SECURITIES REFERRED TO IN THIS FREE WRITING PROSPECTUS ARE BEING
OFFERED WHEN, AS AND IF ISSUED. THE ISSUER IS NOT OBLIGATED TO ISSUE
ANY SUCH SECURITIES OR ANY SIMILAR SECURITIES, AND ALL OR A PORTION OF
THE SECURITIES MAY NOT BE ISSUED THAT HAVE THE CHARACTERISTICS
DESCRIBED HEREIN. THE UNDERWRITERS' OBLIGATION TO DELIVER SUCH
SECURITIES IS SUBJECT TO THE TERMS AND CONDITIONS OF THE UNDERWRITING
AGREEMENT WITH THE ISSUER AND THE AVAILABILITY OF THE SECURITIES HAVING
THE CHARACTERISTICS DESCRIBED HEREIN. IF, FOR ANY REASON, THE ISSUER
DOES NOT DELIVER SUCH SECURITIES, THE UNDERWRITER WILL NOTIFY YOU, AND
NEITHER THE ISSUER NOR ANY UNDERWRITER WILL HAVE ANY OBLIGATION TO YOU
TO DELIVER ALL OR ANY PORTION OF THE SECURITIES WHICH YOU HAVE
COMMITTED TO PURCHASE, AND THERE WILL BE NO LIABILITY BETWEEN US AS A
CONSEQUENCE OF THE NON-DELIVERY.
B-2-1
ANY LEGENDS, DISCLAIMERS OR OTHER NOTICES THAT MAY APPEAR BELOW OR ON
ANY ELECTRONIC COMMUNICATION TO WHICH THIS FREE WRITING PROSPECTUS IS
ATTACHED RELATING TO (1) THESE MATERIALS NOT CONSTITUTING AN OFFER (OR
A SOLICITATION OF AN OFFER), (2) NO REPRESENTATION THAT THESE MATERIALS
ARE ACCURATE OR COMPLETE AND MAY NOT BE UPDATED OR (3) THESE MATERIALS
POSSIBLY BEING CONFIDENTIAL ARE NOT APPLICABLE TO THIS COMMUNICATION
AND SHOULD BE DISREGARDED. SUCH LEGENDS, DISCLAIMERS OR OTHER NOTICES
HAVE BEEN AUTOMATICALLY GENERATED AS A RESULT OF THIS COMMUNICATION
HAVING BEEN SENT VIA BLOOMBERG OR ANOTHER SYSTEM.
(III) Legends substantially in the following form must appear on any
final term sheet (including each version thereof), any amendment thereof or
supplement thereto:
THIS FREE WRITING PROSPECTUS IS NOT REQUIRED TO CONTAIN ALL INFORMATION
THAT IS REQUIRED TO BE INCLUDED IN THE BASE PROSPECTUS AND THE
PROSPECTUS SUPPLEMENT.
THE INFORMATION IN THIS FREE WRITING PROSPECTUS, IF CONVEYED PRIOR TO
THE TIME OF YOUR COMMITMENT TO PURCHASE, SUPERSEDES SIMILAR INFORMATION
CONTAINED IN ANY PRIOR FREE WRITING PROSPECTUS RELATING TO THESE
SECURITIES.
(IV) Legends substantially in the following form must appear on each
Free Writing Prospectus that includes Derived Information:
FOR ASSET-BACKED AND MORTGAGE-BACKED SECURITIES: CERTAIN OF THE
INFORMATION CONTAINED HEREIN MAY BE BASED ON NUMEROUS ASSUMPTIONS
(INCLUDING PRELIMINARY ASSUMPTIONS ABOUT THE POOL ASSETS AND
STRUCTURE), WHICH MAY NOT BE SPECIFICALLY IDENTIFIED AS ASSUMPTIONS IN
THE INFORMATION. ANY SUCH INFORMATION OR ASSUMPTIONS ARE SUBJECT TO
CHANGE. THE INFORMATION IN THIS FREE WRITING PROSPECTUS MAY REFLECT
ASSUMPTIONS SPECIFICALLY REQUESTED BY YOU. IF SO, PRIOR TO THE TIME OF
YOUR COMMITMENT TO PURCHASE, YOU SHOULD REQUEST UPDATED INFORMATION
BASED ON ANY ASSUMPTIONS SPECIFICALLY REQUIRED BY YOU.
B-2-2
EXHIBIT B-2
(I) Legends in substantially the following form may appear (in place of
the legend described in Part (II) of Exhibit B-1) on each Preliminary Term Sheet
(including each version thereof), any amendment thereof or supplement thereto,
and any final term sheet:
THIS FREE WRITING PROSPECTUS IS BEING DELIVERED TO YOU SOLELY TO
PROVIDE YOU WITH INFORMATION ABOUT THE OFFERING AND TO SOLICIT AN OFFER
TO PURCHASE THE OFFERED SECURITIES. 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 SUCH SECURITIES. ANY SUCH COMMITMENT
SHALL BE SUBJECT TO THE CONDITIONS SPECIFIED BELOW.
THIS FREE WRITING PROSPECTUS IS NOT REQUIRED TO CONTAIN ALL OF THE
INFORMATION THAT IS REQUIRED TO BE INCLUDED IN THE BASE PROSPECTUS AND
THE PROSPECTUS SUPPLEMENT. THE INFORMATION IN THIS FREE WRITING
PROSPECTUS IS PRELIMINARY AND IS SUBJECT TO COMPLETION OR CHANGE. THE
INFORMATION IN THIS FREE WRITING PROSPECTUS, IF CONVEYED PRIOR TO THE
TIME OF YOUR COMMITMENT TO PURCHASE THE OFFERED SECURITIES, SUPERCEDES
ANY PRIOR VERSION OF THIS FREE WRITING PROSPECTUS AND ANY INFORMATION
CONTAINED IN ANY PRIOR SIMILAR FREE WRITING PROSPECTUS RELATING TO
THESE SECURITIES. IF A PRELIMINARY PROSPECTUS IS CONVEYED TO YOU PRIOR
TO YOUR COMMITMENT TO PURCHASE, THAT DOCUMENT SUPERSEDES ALL OTHER
INFORMATION PROVIDED TO YOU CONCERNING THE OFFERED SECURITIES.
THIS FREE WRITING PROSPECTUS IS NOT AN OFFER TO SELL OR A SOLICITATION
OF AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE SUCH OFFER,
SOLICITATION OR SALE IS NOT PERMITTED.
THE SECURITIES REFERRED TO IN THIS FREE WRITING PROSPECTUS ARE BEING
OFFERED WHEN, AS AND IF ISSUED. THE ISSUER IS NOT OBLIGATED TO ISSUE
ANY SUCH SECURITIES OR ANY SIMILAR SECURITIES, AND ALL OR A PORTION OF
THE SECURITIES MAY NOT BE ISSUED THAT HAVE THE CHARACTERISTICS
DESCRIBED HEREIN. THE UNDERWRITERS' OBLIGATION TO DELIVER SUCH
SECURITIES IS SUBJECT TO THE TERMS AND CONDITIONS OF THE UNDERWRITING
AGREEMENT WITH THE ISSUER AND THE AVAILABILITY OF THE SECURITIES HAVING
THE CHARACTERISTICS DESCRIBED HEREIN. IF, FOR ANY REASON, THE ISSUER
DOES NOT DELIVER SUCH SECURITIES, THE UNDERWRITER WILL NOTIFY YOU, AND
NEITHER THE ISSUER NOR ANY UNDERWRITER WILL HAVE ANY OBLIGATION TO YOU
TO DELIVER ALL OR ANY PORTION OF THE SECURITIES WHICH YOU HAVE
COMMITTED TO PURCHASE, AND THERE WILL BE NO LIABILITY BETWEEN US AS A
CONSEQUENCE OF THE NON-DELIVERY.
ANY LEGENDS, DISCLAIMERS OR OTHER NOTICES THAT MAY APPEAR BELOW OR ON
ANY ELECTRONIC COMMUNICATION TO WHICH THIS FREE WRITING PROSPECTUS IS
ATTACHED RELATING TO (1) THESE MATERIALS NOT CONSTITUTING AN OFFER (OR
A SOLICITATION OF AN OFFER), (2) NO REPRESENTATION THAT THESE MATERIALS
ARE ACCURATE OR COMPLETE AND MAY NOT BE UPDATED OR (3) THESE MATERIALS
POSSIBLY BEING CONFIDENTIAL ARE NOT APPLICABLE TO THIS COMMUNICATION
AND SHOULD BE DISREGARDED. SUCH LEGENDS, DISCLAIMERS OR OTHER NOTICES
HAVE BEEN AUTOMATICALLY GENERATED AS A RESULT OF THIS COMMUNICATION
HAVING BEEN SENT VIA BLOOMBERG OR ANOTHER SYSTEM.
B-2-1
PLEASE CLICK HERE FOR A COPY OF THE BASE PROSPECTUS APPLICABLE TO THIS
OFFERING. [INSERT LINK DIRECT TO BASE AS POSTED ON A WEBSITE, OR LINK
TO AN EMBEDDED PDF COPY OF THE BASE PROSPECTUS]
(II) The following additional legend, or a similar legend to the
following effect, may appear on any Free Writing Prospectus disseminated prior
to the time of contract of sale, if reflective of the understanding between the
Underwriter and the investor:
THE ASSET-BACKED SECURITIES REFERRED TO IN THESE MATERIALS ARE BEING
OFFERED WHEN, AS AND IF ISSUED. IN PARTICULAR, ASSET-BACKED SECURITIES
AND THE ASSET POOLS BACKING THEM ARE SUBJECT TO MODIFICATION OR
REVISION (INCLUDING, AMONG OTHER THINGS, THE POSSIBILITY THAT ONE OR
MORE CLASSES OF SECURITIES MAY BE SPLIT, COMBINED OR ELIMINATED) AT ANY
TIME PRIOR TO ISSUANCE. AS A RESULT, YOU MAY COMMIT TO PURCHASE
SECURITIES WITH CHARACTERISTICS THAT MAY CHANGE MATERIALLY, AND ALL OR
A PORTION OF THE SECURITIES MAY NOT BE ISSUED WITH MATERIAL
CHARACTERISTICS DESCRIBED IN THESE MATERIALS. OUR OBLIGATION TO SELL
SECURITIES TO YOU IS CONDITIONED ON THOSE SECURITIES HAVING THE
MATERIAL CHARACTERISTICS DESCRIBED IN THESE MATERIALS. IF THAT
CONDITION IS NOT SATISFIED, WE WILL NOTIFY YOU, AND NEITHER THE ISSUER
NOR ANY UNDERWRITER WILL HAVE ANY OBLIGATION TO YOU TO DELIVER ALL OR
ANY PORTION OF THE SECURITIES YOU COMMITTED TO PURCHASE, AND THERE WILL
BE NO LIABILITY BETWEEN US AS A CONSEQUENCE OF THE NON-DELIVERY.
HOWEVER, UNLESS THE CLASS OF SECURITIES YOU COMMITTED TO PURCHASE HAS
BEEN ELIMINATED, WE WILL PROVIDE YOU WITH REVISED OFFERING MATERIALS
AND OFFER YOU AN OPPORTUNITY TO PURCHASE THAT CLASS, AS DESCRIBED IN
THE REVISED OFFERING MATERIALS. TO INDICATE YOUR INTEREST IN PURCHASING
THE CLASS YOU MUST AFFIRMATIVELY COMMUNICATE TO US YOUR DESIRE TO DO SO
WITHIN _____ DAYS AFTER RECEIPT OF THE REVISED OFFERING MATERIALS, BUT
IN NO EVENT LATER THAN THE BUSINESS DAY BEFORE THE DATE THE SECURITIES
ARE ISSUED.
(III) The following additional legend may appear on any Free Writing
Prospectus disseminated prior to time of contract of sale (and this legend may
replace portions of the legend described in Exhibit B-1 (II) and Exhibit B-2 (I)
if inconsistent therewith):
THIS FREE WRITING PROSPECTUS IS BEING DELIVERED TO YOU SOLELY TO
PROVIDE YOU WITH INFORMATION ABOUT THE OFFERING OF THE ASSET-BACKED
SECURITIES REFERRED TO IN THIS FREE WRITING PROSPECTUS AND TO SOLICIT
AN INDICATION OF YOUR INTEREST IN PURCHASING SUCH SECURITIES, WHEN, AS
AND IF ISSUED. ANY SUCH INDICATION OF INTEREST WILL NOT CONSTITUTE A
CONTRACTUAL COMMITMENT BY YOU TO PURCHASE ANY OF THE SECURITIES. YOU
MAY WITHDRAW YOUR INDICATION OF INTEREST AT ANY TIME.
(IV) The following additional legend may appear on any Free Writing
Prospectus that includes Derived Information:
THE INFORMATION IN THIS FREE WRITING PROSPECTUS MAY REFLECT PARAMETERS,
METRICS OR SCENARIOS SPECIFICALLY REQUESTED BY YOU. IF SO, PRIOR TO THE
TIME OF YOUR COMMITMENT TO PURCHASE, YOU SHOULD REQUEST UPDATED
INFORMATION BASED ON ANY PARAMETERS, METRICS OR SCENARIOS SPECIFICALLY
REQUIRED BY YOU IN ORDER TO MAKE YOUR INVESTMENT DECISION.
B-2-2
EXHIBIT B-3
No legend to the following effect, whether or not expressed in
different language, may be included in any Free Writing Prospectus:
ANY STATEMENT THAT THE FREE WRITING PROSPECTUS WILL BE SUPERSEDED BY
THE FINAL PROSPECTUS.
ANY DISCLAIMER OF RESPONSIBILITY OR LIABILITY FOR, OR ANY DISCLAIMER OF
THE ACCURACY OR COMPLETENESS OF, THE CONTENT OF THE FREE WRITING PROSPECTUS THAT
WOULD NOT BE APPROPRIATE FOR A PROSPECTUS OR REGISTRATION STATEMENT. [FOR
EXAMPLE, A DISCLAIMER BY ANY PARTY OF THE ACCURACY OF INFORMATION FOR WHICH THAT
PARTY HAS STATUTORY LIABILITY WOULD NOT BE APPROPRIATE. HOWEVER, FACTUAL
STATEMENTS REGARDING THE ROLE OF ANY PARTY IN PREPARING, PROVIDING, APPROVING OR
VERIFYING ANY INFORMATION MAY BE MADE.]
ANY STATEMENT REQUIRING INVESTORS TO READ, OR ACKNOWLEDGE THEY HAVE
READ, ANY DISCLAIMERS OR LEGENDS, THE BASE PROSPECTUS OR THE REGISTRATION
STATEMENT.
LANGUAGE STATING THAT THE FREE WRITING PROSPECTUS IS NOT A PROSPECTUS
OR AN OFFER TO SELL (OTHER THAN SUCH A STATEMENT AS TO JURISDICTIONS IN WHICH
SUCH OFFER OR SALE IS NOT PERMITTED).
ANY STATEMENT THAT THE FREE WRITING PROSPECTUS IS PRIVILEGED OR
CONFIDENTIAL, OR THAT ITS USE IS OTHERWISE RESTRICTED.
ANY STATEMENT THAT THE FREE WRITING PROSPECTUS DOES NOT CONTAIN ALL
MATERIAL INFORMATION, OR THAT IT WILL BE SUPPLEMENTED BY THE FINAL PROSPECTUS.
ANY STATEMENT THAT THE FREE WRITING PROSPECTUS IS SUBJECT TO CHANGE
WITHOUT NOTICE.
ANY STATEMENT THAT THE INVESTMENT DECISION SHOULD BE BASED ON, OR MAY
ONLY BE MADE BASED ON, THE FINAL PROSPECTUS OR ANY OTHER INFORMATION THAT IS
DELIVERED ONLY AFTER THE TIME OF THE CONTRACT FOR SALE OF THE SECURITIES.
B-3-1
EXHIBIT C-1
FIRST PRELIMINARY TERM SHEET
EXHIBIT C-2
SECOND PRELIMINARY TERM SHEET
EXHIBIT C-3
Third Preliminary Term Sheet
EXHIBIT D
ADDITIONAL ISSUER INFORMATION
