Thornburg Mortgage Securities Corporation Thornburg Mortgage Securities Trust [ ] Mortgage [Loan Pass-Through Certificates] [Backed Notes], Series [ ] Class [ ] and Class [ ]
Form
of Underwriting Agreement
Xxxxxxxxx
Mortgage Securities Corporation
Xxxxxxxxx
Mortgage Securities Trust [ ]
Mortgage
[Loan Pass-Through Certificates] [Backed Notes], Series
[ ]
Class
[ ] and Class
[ ]
[ ]
[ ], [ ]
[UNDERWRITER]
[ADDRESS]
Ladies
and Gentlemen:
Xxxxxxxxx
Mortgage Securities Corporation, a Delaware corporation (the “Company”),
proposes to sell to [ ] (the “Underwriter”), its
Xxxxxxxxx Mortgage Securities Trust [ [ ]
Certificates] [[ ] Mortgage Backed Notes] in the
classes, in the respective original principal amounts and with the designations
set forth in Schedule I hereto (the [“Offered Certificates”] [“Offered Notes”]).
Only the Offered [Certificates] [Notes] are being purchased by the Underwriter
hereunder. [Xxxxxxxxx Mortgage Securities Trust [ ]
(the “Trust”) was created pursuant to a trust agreement dated as of
[ ] [ ],
[ ], between the Company and
[ ], as owner trustee (the “Owner Trustee”), as
amended and restated by an amended and restated trust agreement (the “Trust
Agreement”) dated as of [ ] [ ],
[ ], among the Company, the Owner Trustee and
[ ], as securities administrator (in such capacity,
the “Securities Administrator”)].
The
Offered [Certificates] [Notes], together with the Class
[ ] Certificates (the “Non-Offered [Certificates]
[Notes]” and, together with the Offered [Certificates] [Notes], the
“[Certificates] [Notes]”), will be issued by the [Company] [Trust] pursuant to
[a Pooling and Servicing Agreement (the “Pooling and Servicing Agreement”),
dated as of [ ] [ ],
[ ], among the Company, as depositor (the
“Depositor”), Xxxxxxxxx Mortgage Home Loans, Inc., as seller (the “Seller”),
[ ], 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”) and
[ ], as trustee (the “Trustee”)] [an Indenture (the
“Indenture”) dated as of [ ] [ ],
[ ], among the Trust, the Securities Administrator
and [ ], as indenture trustee (the “Indenture
Trustee”)].
Each
[Certificate] [Note] will evidence the holder’s beneficial ownership in the
[Xxxxxxxxx Mortgage Securities Trust [ ] (the
“Trust”), governed pursuant to the Pooling and Servicing Agreement] [the Trust],
and consisting primarily of [hybrid] [fixed] and [adjustable] rate, residential
mortgage loans (the “Mortgage Loans”) secured primarily by [first] [and second]
liens on [ ]. The Offered [Certificates] [Notes]
are described more fully in Schedule I hereto and in the Final Prospectus
Supplement furnished to the Underwriter by the Company and referred to
below.
The
Mortgage Loans will be serviced by the Master Servicer pursuant to [the Pooling
and Servicing Agreement] [the Sale and Servicing Agreement dated as of
[ ] [ ],
[ ], among the Company, the Trust, Xxxxxxxxx
Mortgage Home Loans, Inc., as initial seller (the “Initial Seller”), Xxxxxxxxx
Mortgage Funding, Inc. as seller (the “Seller”), the Master Servicer, the
Securities Administrator and the Indenture Trustee]. Also, an indemnification
and contribution agreement, dated [ ]
[ ], [ ] (the “Indemnification
Agreement”), will be entered into among the Company, the Underwriter and the
Seller.
Capitalized
terms used but not otherwise defined herein shall have the respective meanings
assigned to them in the [Pooling] [Sale] and Servicing Agreement.
1. Representations
and Warranties.
The
Company represents and warrants to, and agrees with, the Underwriter
that:
(a) The
Company has filed with the Securities and Exchange Commission (the “Commission”)
a registration statement on Form S-3 (the file number of which is set forth
in
Schedule I hereto) for the registration of 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 Underwriter. 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
[ ] [ ],
[ ] (the “Base Prospectus”), a preliminary
prospectus supplement dated [ ]
[ ], [ ], relating to the Offered
[Certificates] [Notes] (collectively, the “Preliminary Prospectus Supplement”)
and a final prospectus supplement dated [ ]
[ ], [ ], relating to the Offered
[Certificates] [Notes] (collectively, the “Final Prospectus Supplement”). The
Base Prospectus and the Preliminary Prospectus Supplement relating to the
Offered [Certificates] [Notes] 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] [Notes] 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 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 [ ] expressly for use
therein, as specified in Exhibit A hereto (the “Underwriter’s 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
Underwriter’s Information.
2
(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] [Sale] and Servicing Agreement[,
the Trust Agreement,] the Mortgage Loan Purchase Agreement, dated as of
[ ] [ ],
[ ], between the Company and the Seller (the
“Mortgage Loan Purchase Agreement”) [the Administration Agreement (which
agreement delegates certain duties of the Trust under the Sale and Servicing
Agreement and the Indenture to the Company) dated as of
[ ] [ ],
[ ], among the Depositor, the Trust, the Indenture
Trustee, the Owner Trustee and the Securities Administrator] and the
Indemnification Agreement [and to cause the Notes to be issued].
(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,
(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] [Notes] for sale in any jurisdiction or any initiation or threat
of any proceeding for such purpose.
3
(e) This
Agreement has been duly authorized, executed and delivered by the
Company.
(f) Each
of
the [Pooling] [Sale] and Servicing Agreement, the Trust Agreement, the Mortgage
Loan Purchase Agreement, the Administration 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 under the Mortgage Loan Purchase Agreement and the
Indemnification Agreement, limitations of public policy under applicable
securities laws.
(g) As
of the
Closing Date, the Offered [Certificates] [Notes] will be duly and validly
authorized and, when duly and validly executed, authenticated and delivered
in
accordance with the [Pooling and Servicing Agreement] [Indenture] and delivered
to the Underwriter for the account of the Underwriter 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] [Indenture]. The
Offered [Certificates] [Notes] 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] [Notes], (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] [Notes], (ii) seeking
to
prevent the issuance of the [Certificates] [Notes] 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] [Notes] or (iv) seeking to affect adversely the federal income
tax attributes of the [Certificates] [Notes] 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] [Notes] 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] [Trust] as
contemplated by the [Pooling] [Sale] 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] [Sale]
and
Servicing Agreement and (iii) will have the power and authority to sell such
Mortgage Loans to the [Trustee] [Trust], and upon the execution and delivery
of
the [Pooling] [Sale] and Servicing Agreement by the [Trustee] [Trust], the
[Trustee] [Trust] 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] [Notes] nor the activities of the Trust pursuant to the [Pooling
and Servicing Agreement] [Indenture] 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
[ ] [ ],
[ ], the Company was not an “ineligible issuer” as
defined in Rule 405 under the Securities Act.
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] [Notes] to the Underwriter, and the Underwriter agrees to
purchase, from the Company, the Offered [Certificates] [Notes] in the respective
principal amounts of the Classes of Offered [Certificates] [Notes] 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 Underwriter to the Depositor at or prior to the Closing
Date.
3. Delivery
and Payment.
Delivery of and payment for the Offered [Certificates] [Notes] shall be made
at
the offices of XxXxx Xxxxxx LLP, 0000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X. 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
Underwriter shall designate), which date and time may be changed by agreement
between the Underwriter and the Company or as provided herein (such date and
time of delivery and payment for the Offered [Certificates] [Notes] being herein
called the “Closing
Date”).
Delivery of the Offered [Certificates] [Notes] shall be made to the Underwriter,
against payment by the Underwriter 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
Underwriter. The Offered [Certificates] [Notes] to be so delivered shall be
in
definitive fully registered form, unless otherwise agreed, in such denominations
and registered in such names as the Underwriter may have requested in writing
not less than two full business days in advance of the Closing
Date.
5
The
Company agrees to have the Offered [Certificates] [Notes] available for
inspection, checking and packaging by the Underwriter 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] [Notes].
It is
understood that the Underwriter proposes to offer the Offered [Certificates]
[Notes] for sale to the public as set forth in the Final
Prospectus.
5. Covenants
of the Company.
The
Company covenants and agrees with the Underwriter that:
(a) The
Company will prepare the Preliminary Prospectus and the Final Prospectus setting
forth the amount of Offered [Certificates] [Notes] covered thereby and the
terms
thereof not otherwise specified in the Base Prospectus, the expected proceeds
to
the Company from the sale of the Offered [Certificates] [Notes], and such other
information as the Underwriter and the Company may deem appropriate in
connection with the offering of the Offered [Certificates] [Notes]. The Company
promptly will advise the Underwriter or the Underwriter’s 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 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] [Notes] 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.
6
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] [Notes] 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 the Underwriter and the Underwriter’s 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 the Preliminary Prospectus and
the
Final Prospectus and any amendments and supplements thereto as the Underwriter
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] [Notes]
for sale under the laws of such jurisdictions as the Underwriter may designate
and will maintain such qualifications in effect so long as required for the
distribution of the Offered [Certificates] [Notes]; 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.
(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]
[Indenture] and the [Certificates] [Notes]; the fees, costs and expenses of
the
[Indenture] Trustee (to the extent permitted under the [Pooling and Servicing
Agreement] [Indenture], 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] [Notes] 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] [Notes] 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 the Underwriter of such copies of each Preliminary Prospectus
and Final Prospectus as the Underwriter may reasonably request; and the fees
of
the Rating Agency (as defined in Section 8 hereof).
7
(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] [Notes] a current report on Form 8-K setting forth
specific information concerning the Offered [Certificates] [Notes] and the
Mortgage Loans to the extent that such information is not set forth in the
Final
Prospectus. To the extent the Underwriter 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 The Underwriter. The
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.
(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.
(c) It
has
not disseminated and will not disseminate any information relating to the
Offered [Certificates] [Notes] 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] [Notes] 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 the Underwriter bore or will bear the
applicable legends required under this Agreement, and no Free Writing Prospectus
disseminated by the Underwriter bore or will bear any legend proscribed under
this Agreement.
8
(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”), the
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] [Notes] to the public in that Relevant Member State
prior to the publication of a prospectus in relation to the Offered
[Certificates] [Notes] 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] [Notes] 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
€43,000,000 and (z) an annual net turnover of more than €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]
[Notes] to the public” in relation to any Offered [Certificates] [Notes] 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]
[Notes] to be offered so as to enable an investor to decide to purchase or
subscribe for the Offered [Certificates] [Notes], 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.
(h) Each
confirmation of sale with respect to Offered [Certificates] [Notes] delivered
by
the 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:
9
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 (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] [Notes]
as is disseminated by the 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] [Notes] that is disseminated by the Underwriter to a potential
investor) or (C) Pool Information .
(iii) “Free
Writing Prospectus” means any information relating to the Offered [Certificates]
[Notes] 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 any information provided in writing by the Depositor to the
Underwriter specifically for dissemination to potential investors.
(b) Neither
the Company nor any Underwriter will disseminate to any potential investor
any
information relating to the Offered [Certificates] [Notes] that constitutes
a
“written communication” within the meaning of Rule 405 under the 1933 Act, other
a Prospectus and, in the case of the Underwriter, Derived Information, unless
(i) if the Underwriter seeks to disseminate such information, such Underwriter
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
the
Underwriter.
The
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. The 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 the Underwriter shall disseminate or file with the Commission
any information relating to the Offered [Certificates] [Notes] in reliance
on
Rule 167 or 426 under the 1933 Act, nor shall the 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.
10
(c) Each
Free
Writing Prospectus shall bear the applicable legends specified in Exhibit B-1
hereto, and may bear the applicable legends 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) The
Underwriter shall deliver to the Company and its counsel a copy, in electronic
form, of each Free Writing Prospectus disseminated by the 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] [Notes].
The
obligations of the Underwriter hereunder to purchase the Offered [Certificates]
[Notes] 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 0000 Xxx.
(b) The
Company shall have delivered to the 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
Underwriter and the Company shall have received the negative assurance letter
of
[ ] with respect to each Prospectus;
11
(d) The
Underwriter shall have received from [ ], Counsel
for the Company, one or more favorable opinions, dated the Closing Date, in
form
and substance reasonably satisfactory to the Underwriter as to various corporate
matters;
(e)
[The
Underwriter shall have received from [ ], Counsel
to the Trust, a favorable opinion, dated the Closing Date, in form and substance
reasonably satisfactory to the Underwriter;]
(f) The
Underwriter shall have received from the counsel for
[ ] (“[ ]”), as master
servicer and securities administrator, a favorable opinion, dated the Closing
Date, in form and substance reasonably satisfactory to the
Underwriter;
(g) The
Underwriter shall have received from counsel or counsels to the Seller, one
or
more favorable opinions, dated the Closing Date, in form and substance
reasonably satisfactory to the Underwriter;
(h) The
Underwriter shall receive from [ ], 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 Underwriter and the
Underwriter’s 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 Groups” agrees with the general
accounting records of THML or the Company, as applicable.
(i) The
Underwriter shall have received from each of [ ]
(“[ ]”)
and
[ ] (“[ ]”) (each, a
“Rating Agency” and collectively, the “Rating Agencies”) a rating letter
assigning to the Offered [Certificates] [Notes] the ratings indicated on
Schedule I hereto, none of which ratings shall have been withdrawn.
(j) The
Underwriter shall have received from counsel for the [Indenture] Trustee a
favorable opinion, dated the Closing Date, in form and substance satisfactory
to
the Underwriter and the Underwriter’s counsel, to the effect that [each of] the
[Pooling] [Sale] and Servicing Agreement[, the Indenture and the Administration
Agreement] has been duly authorized, executed and delivered by the [Indenture]
Trustee and constitutes the legal, valid, binding and enforceable agreement
of
the [Indenture] 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 Underwriter and the [Indenture]
Trustee.
(k) The
Underwriter 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 Underwriter and the Underwriter’s counsel, and the Underwriter and such
counsel shall have received such information, certificates and documents as
it
or they may have reasonably requested.
12
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
Underwriter and the Underwriter’s counsel, this Agreement and all the
obligations of the Underwriter hereunder may be canceled by the Underwriter
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 Underwriter that:
(a) The
Company will indemnify and hold harmless the Underwriter and each Person who
controls the 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 the 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 (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 the Underwriter, (x) any information, other than Derived
Information, in any Prospectus disseminated by the 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 headings [ ] or arise out of or
are based upon information provided by the Servicers or the Seller to the
Underwriter specifically for use in connection with any Free Writing Prospectus
or (B) written information furnished to the Company as herein stated by the
Underwriter specifically for use in connection with the preparation thereof
and
in 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 inure to the Underwriter or any Person
controlling the Underwriter from which the Person asserting any such loss,
claim, damage or liability purchased the Offered [Certificates] [Notes] 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] [Notes] 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.
13
(b) The
Underwriter agrees 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 Underwriter, but only with reference to written information
furnished to the Company as herein stated by the Underwriter specifically for
use in connection with the preparation of the documents referred to in the
foregoing indemnity or in 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 Underwriter may otherwise have. The Company and the
Underwriter acknowledges that the Underwriter Information constitutes the only
information furnished in writing by the Underwriter for inclusion in the
documents referred to in the foregoing indemnity, and the Underwriter confirms
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 separate counsel, approved by the Underwriter 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).
14
(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 option due 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
Underwriter on the other from the offering of the Offered [Certificates] [Notes]
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 Underwriter 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
the 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 0000 Xxx) 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 the Underwriter within the meaning
of
either the 1933 Act or the 1934 Act shall have the same rights to contribution
as does the 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).
10. Termination. 1)
This
Agreement shall be subject to termination in the Underwriter’s absolute
discretion, by notice given to the Company prior to delivery of and payment
for
the Offered [Certificates] [Notes], 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 Underwriter’s reasonable judgment, impracticable to
market the Offered [Certificates] [Notes] on the terms specified
herein.
(b) If
the
sale of the Offered [Certificates] [Notes] shall not be consummated because
any
condition to the obligations of the Underwriter 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 Underwriter, the Company shall
reimburse the Underwriter for the reasonable fees and expenses of the
Underwriter’s counsel and for such other out-of-pocket expenses as shall have
been incurred by the Underwriter in connection with this Agreement and the
proposed purchase of the Offered [Certificates] [Notes], and upon demand the
Company shall pay the full amount thereof to the Underwriter.
15
(c) This
Agreement will survive delivery of and payment for the Offered [Certificates]
[Notes]. 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] [Notes] pursuant to this Agreement, including the determination
of the public offering price of the Offered [Certificates] [Notes] and any
related discounts and commissions, is an arm’s-length commercial transaction
between the Company and the Underwriter, and the Company is capable of
evaluating and understanding and understand and accept 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 the 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)
the
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
the
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) the 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 Underwriter has 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 they deemed appropriate.
This
Agreement supersedes all prior agreements and understandings (whether written
or
oral) between the Company and the Underwriter, 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
the Underwriter 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 Underwriter, will be mailed, delivered or transmitted by
facsimile and confirmed to [ ],
[ ], attention: [ ];
and if sent to the Company, will be mailed, delivered or transmitted by
facsimile and confirmed to it at [ ], attention:
[ ].
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.
16
14. Applicable
Law; Counterparts.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York, without reference to its conflict of law provisions (other
than Section 5-1401 of the general obligations law), and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws. 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.
17
If
the
foregoing is in accordance with the Underwriter’s understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
letter and the Underwriter’s acceptance shall represent a binding agreement
between the Company and the Underwriter.
Very
truly yours,
Xxxxxxxxx
Mortgage Securities Corporation
By:
Name:
Title:
The
foregoing Agreement is hereby
confirmed
and accepted as of
the
date first above written.
[ ]
|
By:
|
________________________________
|
Name:
Title:
SCHEDULE
I
Underwriting
Agreement dated [ ] [ ],
[ ].
As
used
in this Agreement, the term “Registration Statement” refers to the Registration
Statement on Form S-3, File No. 333-140945.
Closing
Date: [ ] [ ],
[ ].
Preliminary
Pool Balance: $[ ].
Cut-Off
Date: [ ]
[ ], [ ].
Title,
Purchase Price and Description of Offered [Certificates] [Notes]:
Xxxxxxxxx
Mortgage Securities Corporation, Xxxxxxxxx Mortgage Securities Trust
[ ], Mortgage [Loan Pass-Through Certificates]
[Backed Notes], Series [ ], Classes designated
below:1
|
Class
|
Original
Class [Certificate] [Note]Principal Balance
|
Pass-Through
Rate
|
[ ]
|
|
Class
[ ]
|
$[ ]
|
Variable
Pass-Through Rate
|
[ ]
|
|
Class
[ ]
|
$[ ]
|
Variable
Pass-Through Rate
|
[ ]
|
1 Other
[Certificates] [Notes] issued pursuant to the [Pooling and Servicing Agreement]
[Indenture]: Xxxxxxxxx Mortgage Securities
Trust [ ],
Mortgage Loan Pass-Through Certificates, Series [ ],
Class
[ ]
and
Class [ ]
Certificates.
|
Underwriter
|
Original
Class [Certificate] [Note] Principal Balance of Class
[ ]
[Certificates]
[Notes]
|
Purchase
Price
|
|||
|
[ ]
|
$[ ]
|
[ ]%
|
|||
|
Total
|
$[ ]
|
||||
|
Underwriter
|
Original
Class [Certificate] [Note] Principal Balance of Class
[ ]
[Certificates] [Notes]
|
Purchase
Price
|
|||
|
[ ]
|
$[ ]
|
[ ]%
|
|||
|
Total
|
$[ ]
|
EXHIBIT
A
Underwriter’s
Information:
[ ]
A-1
EXHIBIT
B-1
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®) at
xxx.xxx.xxx.
Alternatively,
you may obtain a copy of the Offering
Documentation by calling 1-800-221-1037.
The
following additional legends 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.
The
following additional legends 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-1-1
EXHIBIT
B-2
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.
The
following additional legend may appear on any Free Writing Prospectus
disseminated prior to time of contract of sale:
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.
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-2-1
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
Additional
Issuer Information
C-1
