AMERICAN HOME MORTGAGE INVESTMENT TRUST 2006-1 Mortgage-Backed Notes, Series 2006-1
Mortgage-Backed
Notes, Series 2006-1
|
Class
|
Approximate
Initial Note
Principal
Balance
|
Note
Interest Rate
|
|
II-A-1
|
$ 140,885,000
|
5.50%
|
|
II-A-3
|
$ 100,485,000
|
5.10%
|
|
II-M-1
|
$ 7,861,000
|
5.30%
|
March
28,
2006
Xxxxxx
Brothers Inc.
000
Xxxxxxx Xxxxxx, 0xx
Xxxxx
ABN
AMRO
Incorporated
00
Xxxx
00xx
Xxxxxx
New
York,
NY 10055
Greenwich
Capital Markets, Inc.
000
Xxxxxxxxx Xxxx
Greenwich,
CT 06830
Ladies
and Gentlemen:
American
Home Mortgage Securities LLC, a Delaware limited liability company (the
“Company”), proposes to sell to you (the “Underwriters”), pursuant to this
Underwriting Agreement dated March 28, 2006 (the “Agreement”), among the
Company, the Underwriter, and American Home Mortgage Investment Corp. (“American
Home”), the respective amount set forth in Schedule I attached hereto of the
American Home Mortgage Investment Trust 2006-1, Mortgage-Backed Notes, Series
2006-1, Class II-A-1, Class II-A-3 and Class II-M-1 Notes (collectively, the
“Underwritten Notes”), having the aggregate principal amounts and Note Rates set
forth above. The Underwritten Notes represent an aggregate initial Note
Principal Balance of $249,231,000 of the American Home Mortgage Investment
Trust
2006-1, Mortgage-Backed Notes, Series 2006-1.
The
Class
I-1A-1, Class I-2A-1, Class I-A-2, Class I-A-3, Class I-M-1, Class I-M-2, Class
I-M-3, Class I-M-4, Class I-M-5, Class I-M-6, Class II-A-1, Class II-A-2, Class
II-A-3, Class II-A-4, Class II-M-1, Class II-M-2, Class II-M-3, Class II-M-4,
Class II-M-5 and Class II-B Notes (collectively, the “Notes”) will be issued
pursuant to an Indenture (the “Indenture”) among American Home Mortgage
Investment Trust 2006-1, a newly formed Delaware statutory trust (the “Issuing
Entity”), Xxxxx Fargo Bank, N.A. (the “Securities Administrator”) and Deutsche
Bank National Trust Company (the “Indenture Trustee”). Upon issuance, the Notes
will evidence undivided interests in the Trust Estate (as defined in Appendix
A
to the Indenture) established pursuant to an Amended and Restated Trust
Agreement (the “Trust Agreement”) dated March 29, 2006, among the Company,
Wilmington Trust Company (the “Owner Trustee”) and Deutsche Bank National Trust
Company, as note registrar and note paying agent, as described in the Prospectus
(as defined below). The mortgage loans included in the Trust Estate will be
sold
by American Home Mortgage Acceptance, Inc. (the “Sponsor”) to the Company
pursuant to a Mortgage Loan Purchase Agreement dated as of March 29, 2006 (the
“Mortgage Loan Purchase Agreement”), between the Sponsor and the Company.
Servicing of the Mortgage Loans included in the Trust Estate will be provided
for pursuant to the Servicing Agreement, dated as of March 29, 2006 (the
“Servicing Agreement”), between American Home Mortgage Servicing, Inc., (the
“Servicer”) and Xxxxx Fargo Bank, N.A. (the “Master Servicer”) and the Master
Servicing Agreement, dated as of March 29, 2006, (the “Master Servicing
Agreement”, together with the Servicing Agreement, the “Servicing Agreements”)
among the Master Servicer, the Issuing Entity, the Securities Administrator,
the
Seller and the Indenture Trustee. Terms not defined herein which are defined
in
Appendix A to the Indenture shall have the meanings ascribed to them in Appendix
A to the Indenture.
The
Notes
are described more fully in the Basic Prospectus and the Prospectus Supplement
(each as hereinafter defined) which the Company has furnished to the
Underwriters.
1. Representations,
Warranties and Covenants.
1.1 The
Company represents and warrants to, and agrees with, the Underwriters that
as of
the date hereof (or as of such other date as may be specified in a particular
representation and warranty):
(a) The
Company has filed with the Securities and Exchange Commission (the “Commission”)
a registration statement (No. 333-121581) on Form S-3 for the registration
under
the Securities Act of 1933, as amended (the “Act”), of Mortgage Pass-Through
Certificates and Mortgage-Backed Notes (issuable in series), including the
Underwritten Notes, which registration statement has become effective, and
a
copy of which, as amended to the date hereof, has heretofore been delivered
to
the Underwriters. The Company proposes to file with the Commission pursuant
to
Rule 424(b) under the rules and regulations of the Commission under the Act
(the
“1933 Act Regulations”) a prospectus supplement dated March [], 2006 (the
“Prospectus Supplement”), to the prospectus dated September 19, 2005 (the “Basic
Prospectus”), relating to the Underwritten Notes and the method of distribution
thereof. Such registration statement (No. 333-121581) including exhibits thereto
and any information incorporated therein by reference, as amended at the date
hereof, is hereinafter called the “Registration Statement”; and the Basic
Prospectus and the Prospectus Supplement and any information incorporated
therein by reference, together with any amendment thereof or supplement thereto
authorized by the Company on or prior to March 29, 2006 (the “Closing Date”) for
use in connection with the offering of the Underwritten Notes, are hereinafter
called the “Prospectus”. The Company further proposes to prepare, after the
final terms of all classes of the Underwritten Notes have been established,
a
Free Writing Prospectus that will contain substantially all information that
will appear in the Prospectus Supplement, to the extent that such information
is
known at that time and minus specific sections including the Method of
Distribution section (such Free Writing Prospectus, together with the Basic
Prospectus, the “Definitive Free Writing Prospectus”).
2
(b) The
Registration Statement has become effective and no stop order suspending the
effectiveness of the Registration Statement is in effect, no proceedings for
such purpose are pending before or threatened by the Commission, and the
Registration Statement as of the Effective Date (as defined in this paragraph),
and the Prospectus, as of the date of the Prospectus Supplement, complied in
all
material respects with the applicable requirements of the Act and the 1933
Act
Regulations. The Registration Statement, as of the Effective Date, did not
contain any untrue statement of a material fact and did not omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, and the Prospectus, as of the date of the Prospectus
Supplement, did not, and as of the Closing Date will not, contain an untrue
statement of a material fact and did not and will not omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that neither the Company nor American Home makes any representations or
warranties as to either (i) any information contained in or omitted from the
portions of the Prospectus set forth under the caption “Method of Distribution”
relating to the Underwritten Notes (the “Underwriters’ Information”) or (ii) any
decrement or yield tables set forth in the section titled “Yield on the Notes”
in the Prospectus Supplement (the “Decrement/Yield Tables”). In addition, any
Issuer Information (as defined below) contained in the Definitive
Free Writing Prospectus
(excluding any information substantially equivalent to the Underwriters’
Information and the Decrement/Yield Tables, if applicable), as of the date
thereof, did not contain an untrue statement of a material fact and did not
omit
to state a material fact necessary in order to make the statements therein,
in
the light of the circumstances under which they were made, not misleading.
The
Effective Date shall mean the earlier of the date on which the Definitive Free
Writing Prospectus is first used and the time of the first Contract of Sale
to
which such Prospectus Supplement relates. As used herein, “Pool Information”
means all loan level data with respect to the characteristics of the Mortgage
Loans and administrative and servicing fees, as provided by or on behalf of
the
Company, the Sponsor or American Home to the Underwriters. The Company
acknowledges that the Underwriters’ Information and the Decrement/Yield Tables
constitute the only information furnished in writing by you or on your behalf
for use in connection with the preparation of the Registration Statement or
the
Prospectus, and you confirm that the Underwriters’ Information is correct with
respect to you and the Underwritten Notes you underwrite.
(c) The
Company has been duly formed and is validly existing as a limited liability
company in good standing under the laws of the State of Delaware and has the
requisite organizational power to own its properties and to conduct its business
as presently conducted by it.
(d) The
Company is not, as of the commencement of the offering, an Ineligible Issuer,
as
such term is defined in Rule 405 of the 1933 Act Regulations.
(e) This
Agreement has been duly authorized, executed and delivered by the
Company.
3
(f) As
of the
Closing Date (as defined herein), the Underwritten Notes will conform in all
material respects to the description thereof contained in the Prospectus and
the
representations and warranties of the Company in the Trust Agreement will be
true and correct in all material respects.
(g) Since
the
respective dates as of which information is given in the Registration Statement
and the Prospectus except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, earnings,
affairs, regulatory situation or business of the Company, the Sponsor or
American Home, take as a whole and (B) there have been no transactions entered
into by the Company which are material, other than those in the ordinary course
of business.
(h) The
Indenture, when executed and delivered by the Issuing Entity, will constitute
a
legal, valid and binding instrument enforceable against the Issuing Entity
in
accordance with its terms, subject, as to the enforceability of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium and other laws
affecting the rights of creditors generally, and to general principles of equity
and the discretion of the court (regardless of whether enforceability of such
remedies is considered in a proceeding in equity or at law).
(i) The
issuance of the Underwritten Notes will have been duly authorized by the Issuing
Entity and, when such Underwritten Notes are executed and authenticated in
accordance with the Indenture and delivered against payment pursuant to this
Agreement, such Underwritten Notes will be validly issued and outstanding;
and
the Underwritten Notes will be entitled to the benefits provided by the
Indenture. The Underwritten Notes are in all material respects in the form
contemplated by the related Indenture. Immediately prior to the delivery of
the
Underwritten Notes to the Underwriters, the Company will own the Underwritten
Notes, and upon such delivery the Underwriters will acquire title thereto,
free
and clear of any lien, pledge, encumbrance or other security interest other
than
one created or granted by the Underwriters.
(j) Neither
the Issuing Entity nor the Trust Fund is or, as a result of the offer and sale
of the Underwritten Notes as contemplated in this Agreement will become, an
“investment company” or “controlled” by an “investment company” within the
meaning of the Investment Company Act of 1940, as amended.
(k) As
of the
Closing Date, the Mortgage Loan Purchase Agreement (collectively with this
Agreement, the “Transaction Documents”) will have been duly authorized, executed
and delivered by the Company and the Sponsor and will conform in all material
respects to the description thereof contained in the Prospectus and will
constitute a valid and binding agreement of the Company and the Sponsor
enforceable in accordance with its terms, except as the same may be limited
by
bankruptcy, insolvency, reorganization or other laws relating to or affecting
the enforcement of creditors’ rights generally, and to general principles of
equity and the discretion of the court (regardless of whether enforceability
of
such remedies is considered in a proceeding in equity or at law).
(l) Neither
the issuance or delivery of the Underwritten Notes, nor the consummation of
any
other of the transactions contemplated herein or in the Transaction Documents,
nor compliance with the provisions of the Transaction Documents will conflict
with or result in the breach of any material term or provision of the
certificate of formation or LLC agreement of the Company, and the Company is
not
in breach or violation of or in default (nor has an event occurred which with
notice or lapse of time or both would constitute a default) under the terms
of
(i) any indenture, contract, lease, mortgage, deed of trust, note agreement
or
other evidence of indebtedness or other agreement, obligation or instrument
to
which the Company is a party or by which it or its properties are bound, or
(ii)
any law, decree, order, rule or regulation applicable to the Company of any
court or supervisory, regulatory, administrative or governmental agency, body
or
authority, or arbitrator having jurisdiction over the Company, or its
properties, the default in or the breach or violation of which would have a
material adverse effect on the Company, the trust, the Underwritten Notes or
on
the ability of the Company to perform its obligations under the Transaction
Documents; and neither the delivery of the Underwritten Notes, nor the execution
and delivery of the Transaction Documents or the consummation of any other
of
the transactions contemplated herein or in the Transaction Documents, nor the
compliance with the provisions of the Transaction Documents will result in
such
a breach, violation or default which would have such a material adverse
effect.
4
(m) No
filing
or registration with, notice to, or consent, approval, authorization or order
or
other action of, any court or governmental authority or agency is required
for
the consummation by the Company of the transactions contemplated by the
Transaction Documents (other than as required under state securities laws or
Blue Sky laws, as to which no representations and warranties are made by the
Company), except such as have been, or will have been prior to the Closing
Date,
obtained under the Act, and such recordations of the assignment of the Mortgage
Loans.
(n) There
is
no action, suit or proceeding before or by any court, administrative or
governmental agency, or other tribunal, domestic or foreign, now pending to
which the Company is a party, or, to the best of the Company’s knowledge,
threatened against the Company, which could reasonably result individually
or in
the aggregate in any material adverse change in the condition (financial or
otherwise), earnings, affairs, regulatory situation or business prospects of
the
Company or could reasonably interfere with or materially and adversely affect
the consummation of the transactions contemplated in the Transaction
Documents.
(o) At
the
time of execution and delivery of the Indenture, the Company will own the
mortgage notes (the “Mortgage Notes”) being pledged to the Indenture Trustee
pursuant to the Indenture, free and clear of any lien, mortgage, pledge, charge,
encumbrance, adverse claim or other security interest (collectively, “Liens”),
except to the extent permitted in the Indenture, and will not have assigned
to
any person other than the Issuing Entity any of its right, title or interest
in
the Mortgage Notes. The
Company will have the power and authority to transfer the Mortgage Notes to
the
Issuing Entity and the Underlying Notes to the Underwriter and payment by the
Underwriters for the Underwritten Notes, and delivery to the Underwriters of
the
Underwritten Notes, the Issuing Entity will own the Mortgage Notes and the
Underwriters will acquire title to the Underwritten Notes, in each case free
of
Liens except to the extent permitted by the Indenture.
(p) Any
taxes, fees and other governmental charges in connection with the execution,
delivery and issuance of the Transaction Documents and the Underwritten Notes
have been or will be paid by the Company on or prior to the Closing Date, except
for fees for recording assignments of Mortgage Loans to the Indenture Trustee
or, if applicable, to MERS on behalf of the Indenture Trustee, pursuant to
the
Indenture that have not yet been completed, which fees will be paid by the
Company in accordance with the Indenture.
5
(q) The
Company acknowledges and agrees that the relationship between itself and each
of
the Underwriters is an arms-length commercial relationship that creates no
fiduciary duty on the part of any Underwriter, and each party expressly
disclaims any fiduciary relationship.
1.2 American
Home represents and warrants to, and agrees with, the Underwriters that as
of
the Closing Date the representations and warranties of the Sponsor in Section
3.1(a) of the Mortgage Loan Purchase Agreement will be true and correct in
all
material respects.
1.3 Each
Underwriter represents and warrants to and agrees with the Company and American
Home that:
(a) Such
Underwriter hereby acknowledges that each Underwritten Certificate is to be
maintained on the book-entry records of The Depository Trust Company (“DTC”).
Investors may hold the beneficial interests in minimum denominations of $100,000
and in integral multiples of $1 in excess thereof.
(b) Such
Underwriter represents that it has in place, and covenants that it shall
maintain, internal controls and procedures which it reasonably believes to
be
sufficient to ensure full compliance with all applicable legal requirements
with
respect to the generation and use of Free Writing Prospectuses in connection
with the offering of the Underwritten Notes.
(c) As
of the
date hereof and as of the Closing Date, such Underwriter has complied with
all
of its obligations hereunder. With respect to all Free Writing Prospectuses
provided by the Underwriters to any investor, if any, such Free Writing
Prospectuses are accurate in all material respects (taking into account the
assumptions explicitly set forth in the Free Writing Prospectuses, except to
the
extent of any errors therein that are caused by errors in the Pool Information,
and except for any Issuer Information therein). The Free Writing Prospectuses
provided by the Underwriters to the Company pursuant to Section 4.4 constitute
a
complete set of all Free Writing Prospectuses furnished to any investor by
the
Underwriters in connection with the offering of any Underwritten Notes, other
than any Underwriter Derived Information.
2. Purchase
and Sale.
Subject
to the terms and conditions and in reliance upon the representations and
warranties herein set forth, the Company agrees to sell to the Underwriters,
and
the Underwriters agree to purchase from the Company, the Underwritten Notes
indicated on Schedule I hereto which shall be transferred by the Company to
the
Trustee at a price equal to [ ]% of the Underwritten Notes as of the Closing
Date.
3. Delivery
and Payment.
Delivery of and payment for the Underwritten Notes shall be made at the office
of Xxxxxxx Xxxxxxxx & Xxxx LLP
at
10:00
a.m., New York City time, on March 29, 2006 or such later date as the
Underwriters shall designate, which date and time may be postponed by agreement
among the Underwriters and the Company (such date and time of delivery and
payment for the Underwritten Notes being herein called the “Closing Date”).
Delivery of the Underwritten Notes shall be made to the Underwriters through
the
DTC (such Underwritten Notes, the “DTC Registered Notes”).
6
4. Offering
by Underwriter.
4.1 It
is
understood that the Underwriters propose to offer and/or solicit offers for
the
Underwritten Notes to be purchased by them for sale to the public as set forth
in the Prospectus and the Underwriters agree that all such offers, solicitations
and sales by them shall be made in compliance with all applicable laws and
regulations. Prior to the date of the first contract of sale made based on
the
Definitive Free Writing Prospectus, you have not sold any Certificate or any
security backed by the Mortgage Loans, any interest in any Certificate or such
security or any Mortgage Loan.
4.2 It
is
understood that the Underwriters will solicit offers to purchase the
Underwritten Notes as follows:
(a) Prior
to
the time you have received the Definitive Free Writing Prospectus you may,
in
compliance with the provisions of this Agreement, solicit offers to purchase
Underwritten
Notes;
provided, that you shall not accept any such offer to purchase a Certificate
or
any interest in any Certificate or Mortgage Loan or otherwise enter into any
Contract of Sale for any Certificate, any interest in any Certificate or any
Mortgage Loan prior to the investor’s receipt of the Definitive Free Writing
Prospectus.
(b) Any
Free
Writing Prospectus (other than the Definitive Free Writing Prospectus) relating
to the Underwritten
Notes
used by
an Underwriter in compliance with the terms of this Agreement prior to the
time
such Underwriter has entered into a Contract of Sale for Underwritten
Notes
shall
prominently set forth the following statement:
The
information in this free writing prospectus is preliminary, and will be
superseded by the Definitive Free Writing Prospectus. This free writing
prospectus is being delivered to you solely to provide you with information
about the offering of the Underwritten
Notes
referred
to in this free writing prospectus and to solicit an offer to purchase the
Underwritten
Notes,
when,
as and if issued. Any such offer to purchase made by you will not be accepted
and will not constitute a contractual commitment by you to purchase any of
the
Underwritten
Notes
until we
have accepted your offer to purchase Underwritten
Notes.
We will
not accept any offer by you to purchase Underwritten
Notes,
and you
will not have any contractual commitment to purchase any of the Underwritten
Notes until
after you have received the Definitive Free Writing Prospectus. You may withdraw
your offer to purchase Underwritten
Notes at
any
time prior to our acceptance of your offer.
7
“Written
Communication” has the same meaning as that term is defined in Rule 405 of the
1933 Act Regulations.
(c) Any
Free
Writing Prospectus relating to Underwritten
Notes
and used
by an Underwriter in connection with marketing the Underwritten
Notes,
including the Definitive Free Writing Prospectus, shall prominently set forth
the following statement:
The
Underwritten
Notes
referred
to in these materials are being sold when, as and if issued. You are advised
that Underwritten
Notes
may not
be issued that have the characteristics described in these materials. Our
obligation to sell such Underwritten
Notes
to you
is conditioned on the mortgage loans and Underwritten Notes having the
characteristics described in these materials. If for any reason we do not
deliver such Underwritten
Notes,
we will
notify you, and neither the Issuing Entity nor any underwriter will have any
obligation to you to deliver all or any portion of the Underwritten
Notes which
you
have committed to purchase, and none of the Issuing Entity nor any underwriter
will be liable for any costs or damages whatsoever arising from or related
to
such non-delivery.
4.3
It is
understood that you will not enter into a Contract of Sale with any investor
until the investor has received the Definitive Free Writing Prospectus. For
purposes of this Agreement, Contract of Sale has the same meaning as in Rule
159
of the 1933 Act Regulations and all Commission guidance relating to Rule 159,
including without limitation the Commission’s statement in Securities Act
Release No. 33-8501 that “a contract of sale can occur under the federal
securities laws before there is a bilateral contract under state law, for
example when a purchaser has taken all actions necessary to be bound but a
seller’s obligations remain conditional under state law.” The Definitive Free
Writing Prospectus shall prominently set forth the following
statement:
This
Definitive Free Writing Prospectus supersedes the information in any free
writing prospectus previously delivered in connection with this offering, to
the
extent that this Definitive Free Writing Prospectus is inconsistent with any
information in any free writing prospectus previously delivered in connection
with this offering.
4.4 It
is
understood that you may prepare and provide to prospective investors certain
Free Writing Prospectuses (as defined below), subject to the following
conditions:
(a) Unless
preceded or accompanied by a prospectus satisfying the requirements of Section
10(a) of the Act, an Underwriter shall not convey or deliver any Written
Communication to any person in connection with the initial offering of the
Underwritten
Notes,
unless
such Written Communication either (i) is made in reliance on Rule 134 under
the
Act, (ii) constitutes a prospectus satisfying the requirements of Rule 430B
under the Act, (iii) is the Definitive Free Writing Prospectus, or (iv) both
(1)
constitutes a Free Writing Prospectus (as defined below) used in reliance on
Rule 164 and (2) includes only information that is within the definition of
ABS
Informational and Computational Materials as defined in Item 1100 of Regulation
AB.
8
(b) Each
Underwriter shall comply with all applicable laws and regulations in connection
with the use of Free Writing Prospectuses, including but not limited to Rules
164 and 433 of the 1933 Act Regulations and all Commission guidance relating
to
Free Writing Prospectuses, including but not limited to Commission Release
No.
33-8591.
(c) For
purposes hereof, “Free Writing Prospectus” shall have the meaning given such
term in Rules 405 and 433 of the 1933 Act Regulations. “Issuer Information”
shall mean information included in a Free Writing Prospectus that both (i)
is
within the types of information specified in clauses (1) to (5) of footnote
271
of Commission Release No. 33-8591 (Securities Offering Reform) as shown in
Exhibit I hereto and (ii) has been either prepared by, or has been reviewed
and
approved by, the Company. “Underwriter Derived Information” shall refer to
information of the type described in clause (5) of such footnote 271 when
prepared by an Underwriter.
(d) All
Free
Writing Prospectuses
provided
to prospective investors,
whether
or not
filed
with the Commission,
shall
bear a legend on each page including the following statement:
“THE
DEPOSITOR HAS FILED A REGISTRATION STATEMENT (INCLUDING A PROSPECTUS) WITH
THE
SEC FOR THE OFFERING TO WHICH THIS COMMUNICATION RELATES. BEFORE YOU INVEST,
YOU
SHOULD READ THE PROSPECTUS IN THAT REGISTRATION STATEMENT AND OTHER DOCUMENTS
THE ISSUING ENTITY HAS FILED WITH THE SEC FOR MORE COMPLETE INFORMATION ABOUT
THE ISSUING ENTITY AND THE OFFERING. YOU MAY GET THESE DOCUMENTS AT NO CHARGE
BY
VISITING XXXXX ON THE SEC WEB SITE AT XXX.XXX.XXX
[AT AMERICAN XXXX.XXX, OR AT UNDERWRITERS’ WEBSITE].
ALTERNATIVELY, THE ISSUING ENTITY, ANY UNDERWRITER OR ANY DEALER PARTICIPATING
IN THE OFFERING WILL ARRANGE TO SEND YOU THE PROSPECTUS AT NO CHARGE IF YOU
REQUEST IT BY CALLING TOLL-FREE 1-8[XX-XXX-XXXX].
The
Company shall have the right to require additional specific legends or notations
to appear on any Free
Writing Prospectus, the right to require changes regarding the use of
terminology and the right to determine the types of information appearing
therein.
(e) The
Underwriters shall deliver to the Company and its counsel, no later than two
business days prior to the proposed date of first use thereof, (i) any Free
Writing Prospectus prepared by or on behalf of the Underwriters that contains
any information that, if reviewed and approved by the Company, would be Issuer
Information, and (ii) any Free Writing Prospectus or portion thereof that
contains only a description of the final terms of the Underwritten
Notes
after
such terms have been established for all classes of Underwritten
Notes
being
publicly offered. No information in any Free Writing Prospectus shall consist
of
information of a type that is not included within the definition of ABS
Informational and Computational Materials. To facilitate filing to the extent
required by Section 5.10 or 5.11, as applicable, all Underwriter Derived
Information shall be set forth in a document separate from the document
including Issuer Information. The Underwriters shall provide to the Company,
for
filing as provided in Section 5.10, copies (in such format as required by the
Company) of all Free Writing Prospectuses prepared by the Underwriters. All
Free
Writing Prospectuses described in this subsection (e) must be approved by the
Company before the Underwriters provide the Free Writing Prospectus to investors
pursuant to the terms of this Agreement.
9
(f) Each
Underwriter agrees that all information included in the Free Writing
Prospectuses shall be prepared, to the extent possible, based on the information
contained in the Registration Statement and anticipated to be included in the
Prospectus. None of the information in the Free Writing Prospectuses may
conflict with the information contained in the Prospectus or the Registration
Statement.
(g) The
Company shall not be obligated to file any Free Writing Prospectuses that have
been determined to contain any material error or omission, unless the Company
is
required to file the Free Writing Prospectus pursuant to Section 5.10 below.
In
the event that an Underwriter becomes aware that, as of the date on which an
investor entered into an agreement to purchase any Underwritten Notes, any
Free
Writing Prospectus prepared by or on behalf of the Underwriter and delivered
to
such investor contained any untrue statement of a material fact or omitted
to
state a material fact necessary in order to make the statements contained
therein, in light of the circumstances under which they were made, not
misleading, such Underwriter shall notify the Company thereof as soon as
practical but in any event within one business day after discovery.
(h) If
the
Underwriters do not provide any Free Writing Prospectuses to the Company
pursuant to subsection (e) above, the Underwriters shall be deemed to have
represented, as of the Closing Date, that they did not provide any prospective
investors with any information in written or electronic form in connection
with
the offering of the Underwritten Notes that is required to be filed with the
Commission by the Company as a Free Writing Prospectus (other than the
Definitive Free Writing Prospectus) in accordance with the 1933 Act
Regulations.
(i) In
the
event of any delay in the delivery by the Underwriters to the Company of any
Free Writing Prospectuses required to be delivered in accordance with subsection
(e) above, or in the delivery of the accountant’s comfort letter in respect
thereof pursuant to subsection (f) above, the Company shall have the right
to
delay the release of the Prospectus to investors or to the Underwriters, to
delay the Closing Date and to take other appropriate actions in each case as
necessary in order to allow the Company to comply with its agreement set forth
in Section 5.10 to file the Free Writing Prospectuses by the time specified
therein.
10
(j) Each
Underwriter represents that it has in place, and covenants that it shall
maintain internal controls and procedures which it reasonably believes to be
sufficient to ensure full compliance with all applicable legal requirements
of
the 1933
Act
Regulations
with
respect to the generation and use of Free
Writing Prospectuses
in
connection with the offering of the Underwritten
Notes.
In
addition, each Underwriter shall, for a period of at least three years after
the
date hereof, maintain written and/or electronic records of the
following:
(i)
Any
Written Communications in respect of the Underwritten
Notes
not
deemed a Prospectus or a Free Writing Prospectus because its content is limited
to the statements permitted by Rule 134 of the Securities Act;
(ii)
any
Free
Writing Prospectus used to solicit offers to purchase Underwritten
Notes but not filed with the Commission;
(iii)
regarding
each Free Writing Prospectus delivered to a prospective investor, the date
of
such delivery and identity of such prospective investor;
(iv)
regarding
each offer to purchase Underwritten
Notes
received
by such Underwriter, the identity of the offeror, the date the offer was made
and the proposed terms and allocation of the Underwritten
Notes
offered
to be purchased; and
(v)
regarding
each Contract of Sale entered into by such Underwriter, the date, identity
of
the investor and the terms of such Contract of Sale, including the amount and
price of Underwritten
Notes
subject
to such Contract of Sale.
(k) Each
Underwriter covenants with the Company that after the final Prospectus is
available such Underwriter shall not distribute any written information
concerning the Underwritten
Notes
to a
prospective investor unless such information is preceded or accompanied by
the
final Prospectus.
(l) Each
Underwriter agrees to provide written notice to the Company of the date it
first
enters into any Contract of Sale for a Certificate.
4.5 Each
Underwriter further agrees that on or prior to the sixth day after the Closing
Date, such Underwriter shall provide the Company with a certificate,
substantially in the form of Exhibit G attached hereto, setting forth (i) in
the
case of each class of Underwritten Notes purchased by such Underwriter, (a)
if
less than 10% of the aggregate principal balance or notional amount, as
applicable, of such class of Underwritten Notes has been sold to the public
as
of such date, the value calculated pursuant to clause (b)(iii) of Exhibit G
hereto, or, (b) if 10% or more of such class of Underwritten Notes has been
sold
to the public as of such date but no single price is paid for at least 10%
of
the aggregate principal balance or notional amount, as applicable of such class
of Underwritten Notes, then the weighted average price at which the Underwritten
Notes of such class were sold expressed as a percentage of the principal balance
or notional amount, as applicable, of such class of Underwritten Notes sold,
or
(c) the first single price at which at least 10% of the aggregate principal
balance or notional amount, as applicable, of such class of Underwritten Notes
was sold to the public, (ii) the prepayment assumption used in pricing such
Underwritten Notes, and (iii) such other information as to matters of fact
as
the Company may reasonably request to enable it to comply with its reporting
requirements with respect to such Underwritten Notes to the extent such
information can in the good faith judgment of such Underwriter be determined
by
it.
11
4.6 Each
Underwriter further agrees that (i) it will include in every confirmation sent
out the notice required by Rule 173 informing the investor that the sale was
made pursuant to the Registration Statement and that the investor may request
a
copy of the Prospectus from such Underwriter; (ii) if a paper copy of the
Prospectus is requested by a person who receives a confirmation, such
Underwriter shall deliver a paper copy of such Prospectus; (iii) if an
electronic copy of the Prospectus is delivered by an Underwriter for any
purpose, such copy shall be the same electronic file containing the Prospectus
in the identical form transmitted electronically to such Underwriter by or
on
behalf of the Company specifically for use by such Underwriter pursuant to
this
Section 4.6; for example, if the Prospectus is delivered to an Underwriter
by or
on behalf of the Company in a single electronic file in .pdf format, then such
Underwriter will deliver the electronic copy of the Prospectus in the same
single electronic file in .pdf format; and (iv) it has not used, and during
the
period for which it has an obligation to deliver a “prospectus” (as defined in
Section 2(a)(10) of the Act) relating to the Underwritten Notes (including
any
period during which you have such delivery obligation in its capacity as a
“dealer” (as defined in Section 2(a)(12) of the Act)) it will not use any
internet website or electronic media containing information for prospective
investors, including any internet website or electronic media maintained by
third parties, in connection with the offering of the Underwritten Notes, except
in compliance with applicable laws and regulations. Each
Underwriter further agrees that (i) if it delivers to an investor the Prospectus
in .pdf format, upon such Underwriter’s receipt of a request from the investor
within the period for which delivery of the Prospectus is required, such
Underwriter will promptly deliver or cause to be delivered to the investor,
without charge, a paper copy of the Prospectus and (ii) it will provide to
the
Company any Free Writing Prospectuses, or portions thereof, which the Company
is
required to file with the Commission in electronic format and will use
reasonable efforts to provide to the Company such Free Writing Prospectuses,
or
portions thereof, in either Microsoft Word® or Microsoft Excel® format and not
in a PDF, except to the extent that the Company, in its sole discretion, waives
such requirements.
4.7 In
the
event that an Underwriter uses a road show (as defined in Rule 433) in
connection with the offering of the Underwritten
Notes,
all
information in the road show will be provided orally only, and not as a Written
Communication. Each Underwriter agrees that any slideshow used in connection
with a road show (i) will only be provided as part of the road show and not
separately, (ii) if handed out at any meeting as a hard copy, will be retrieved
prior to the end of the meeting, and (iii) will otherwise be used only in a
manner that does not cause the slideshow to be treated as a Free Writing
Prospectus.
5. Agreements.
The
Company agrees with the Underwriters that:
5.1 The
Company will promptly advise the Underwriters (i) when any amendment to the
Registration Statement has become effective or any revision of or supplement
to
the Prospectus has been so filed (unless such amendment, revision or supplement
does not relate to the Underlying Notes, the Underwritten Notes or the trust),
(ii) of any request by the Commission for any amendment of the Registration
Statement or the Prospectus or for any additional information (unless such
request for additional information does not relate to the Underlying Notes,
the
Underwritten Notes or the trust), (iii) of any written notification received
by
the Company of the suspension of qualification of the Underwritten Notes for
sale in any jurisdiction or the initiation or threatening of any proceeding
for
such purpose and (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the institution
or, to the knowledge of the Company, the threatening of any proceeding for
that
purpose. Before amending or supplementing the Registration Statement or the
Prospectus with respect to the Underlying Notes or the Underwritten Notes,
the
Company will furnish the Underwriters with a copy of each such proposed
amendment or supplement. The Company will use its best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as possible
the withdrawal thereof.
12
5.2 The
Company will cause the Prospectus Supplement to be transmitted to the Commission
for filing pursuant to Rule 424(b) under the Act by means reasonably calculated
to result in filing with the Commission pursuant to said rule. The Company
will
cause the Prospectus Supplement to be transmitted to the Commission for filing
no later than the close of business on the business day prior to the Closing
Date.
5.3 If,
during the period after the first date of the public offering of the
Underwritten Notes in which a prospectus relating to the Underwritten Securities
is required to be delivered under the Act, any event occurs as a result of
which
it is necessary to amend or supplement the Prospectus, as then amended or
supplemented, in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not misleading,
or if it shall be necessary to amend or supplement the Prospectus to comply
with
the Act or the 1933 Act Regulations, the Company promptly will prepare and
furnish, at its own expense, to the Underwriters, and will file with the
Commission, either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not, in the
light of the circumstances when the Prospectus is delivered to a purchaser,
be
misleading or so that the Prospectus will comply with the Act or the 1933 Act
Regulations.
5.4 If
any
Written Communication or oral statement in connection with the offering of
the
Underwritten
Notes
contains
an untrue statement of material fact or omits to state a material fact necessary
to make the statements, in light of the circumstances under which they were
made, not misleading at the time that a Contract of Sale was entered into,
when
taken together with all information that was conveyed to any person with whom
a
Contract of Sale was entered into, then the Underwriters shall provide any
such
person with the following:
(a) Adequate
disclosure of the contractual arrangement;
(b) Adequate
disclosure of the person’s rights under the existing Contract of Sale at the
time termination is sought;
(c) Adequate
disclosure of the new information that is necessary to correct the misstatements
or omissions in the information given at the time of the original Contract
of
Sale; and
13
(d) A
meaningful ability to elect to terminate or not terminate the prior Contract
of
Sale and to elect to enter into or not enter into a new Contract of
Sale.
5.5 The
Company will furnish to you, without charge, a copy of the Registration
Statement (including exhibits thereto) and, so long as delivery of a prospectus
by an underwriter or dealer may be required by the Act, as many copies of the
Prospectus, any documents incorporated by reference therein and any amendments
and supplements thereto as you may reasonably request;
provided, however, that you will provide the notice specified in Section 4.6
in
every confirmation and will only deliver the prospectus to those investors
that
request a paper copy thereof.
Any
costs
incurred to the investor in connection with any such termination or reformation
shall be subject to Sections 7.1 and 7.2, as applicable.
5.6 The
Company agrees, so long as the Underwritten Notes shall be outstanding, or
until
such time as the Underwriters shall cease to maintain a secondary market in
the
Underwritten Notes, whichever first occurs, to deliver to the Underwriters
the
annual statement as to compliance delivered to the Trustee pursuant to Section
3.16 of the s Servicing Agreement, and the Indenture and the annual statement
of
a firm of independent public accountants furnished to the Issuing Entity and
the
Trustee pursuant to Section 3.17 of the Servicing Agreement, as soon as such
statements are furnished to the Company.
5.7 The
Company will endeavor to arrange for the qualification of the Underwritten
Notes
for sale and the determination of their eligibility for investment under the
laws of such jurisdictions as the Underwriters may reasonably designate and
will
maintain such qualification in effect so long as required for the initial
distribution of the Underwritten Notes; provided, however, that the Company
shall not be required to qualify to do business in any jurisdiction where it
is
not now so 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 so
subject.
5.8 If
the
transactions contemplated by this Agreement are consummated, the Company or
American Home will pay or cause to be paid at or prior to the Closing all
expenses incident to the performance of the obligations of the Company and
American Home under this Agreement, and will reimburse the Underwriters for
any
reasonable expenses (including reasonable fees and disbursements of counsel
and
accountants) reasonably incurred by the Underwriters in connection with the
purchase and sale of the Underwritten Notes (including without limitation the
fees and disbursements of the Underwriters’ counsel and the Underwriters’ due
diligence costs and expenses with respect thereto) and the transactions
contemplated hereby and thereby, and the qualification of the Underwritten
Notes
for sale and determination of their eligibility for investment under the laws
of
such jurisdictions as the Underwriters have reasonably requested pursuant to
Section 5.6 above and the printing of memoranda relating thereto, for any fees
charged by investment rating agencies for the rating of the Underwritten Notes,
for the filing fee of the National Association of Securities Dealers, Inc.
relating to the Underwritten Notes, if applicable, and for expenses incurred
in
distributing the Prospectus (including any amendments and supplements thereto)
to the Underwriters.
14
5.9 If,
during the period after the Closing Date in which a prospectus relating to
the
Underwritten Notes is required to be delivered under the Act, the Company
receives notice that a stop order suspending the effectiveness of the
Registration Statement or preventing the offer and sale of the Underwritten
Notes is in effect, the Company will advise the Underwriters of the issuance
of
such stop order. Upon receipt of notice of such stop order, the Underwriters
shall cease all offers and sales of the Underwritten Notes.
5.10 The
Company shall file any Free Writing Prospectus prepared by the Company
(including the Definitive Free Writing Prospectus), and any Issuer Information
contained in any Free Writing Prospectus provided to it by the Underwriters
under Section 4.4(e), not later than the date of first use of such Free Writing
Prospectus, except that:
(a) As
to any
Free Writing Prospectus or portion thereof required to be filed that contains
only the description of the final terms of the Underwritten
Notes
after
such terms have been established for all classes of Underwritten
Notes
being
publicly offered, such Free Writing Prospectus or portion thereof may be filed
by the Company within two days of the later of the date such final terms have
been established for all classes of Underwritten
Notes
being
publicly offered and the date of first use; and
(b)
Notwithstanding clause (a) above, as to any Free Writing Prospectus or portion
thereof required to be filed that contains only information of a type included
within the definition of ABS Informational and Computational Materials, the
Company shall file such Free Writing Prospectus or portion thereof within the
later of two business days after the Underwriters first provide this information
to investors and the date upon which the Company is required to file the
Prospectus Supplement with the Commission pursuant to Rule 424(b)(3) of the
Act.
provided,
that prior to such use of any Free Writing Prospectuses by the Company, the
Underwriters must comply with their obligations pursuant to Section 4.4 and
that
the Company shall not be required to file any Free Writing Prospectus that
does
not contain substantive changes from or additions to a Free Writing Prospectus
previously filed with the Commission.
5.11 The
Underwriters shall file any Free Writing Prospectus that has been distributed
by
the Underwriters in a manner that could lead to its broad, unrestricted
dissemination not later than the date of first use, provided that if that Free
Writing Prospectus contains only information of a type included within the
definition of ABS Informational and Computational Materials then such filing
shall be made within the later of two business days after the Underwriters
first
provide this information to investors and the date upon which the Company is
required to file the Prospectus Supplement with the Commission pursuant to
Rule
424(b)(3) of the Act; provided further, that the Company shall not be required
to file any Free Writing Prospectus that does not contain substantive changes
from or additions to a Free Writing Prospectus previously filed with the
Commission.
5.12 During
the period when a prospectus is required by law to be delivered in connection
with the sale of the Underwritten Notes pursuant to this Agreement, the Issuing
Entity will file or cause to be filed, on a timely and complete basis, all
documents that are required to be filed by the Issuing Entity with the
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act (as defined
below).
15
6. Conditions
to the Obligations of the Underwriters.
The
Underwriters’ obligation to purchase the Underwritten Notes in the respective
amounts set forth opposite their names on Schedule I attached hereto shall
be
subject to the following additional conditions:
6.1 No
stop
order suspending the effectiveness of the Registration Statement shall be in
effect, and no proceedings for that purpose shall be pending or, to the
knowledge of the Company or American Home, threatened by the Commission or
by
any authority administering any state securities or Blue Sky law; and the
Prospectus Supplement shall have been filed or transmitted for filing, by means
reasonably calculated to result in a filing with the Commission pursuant to
Rule
424(b) under the Act.
6.2 Subsequent
to the respective dates as of which information is given in the Registration
Statement and the Prospectus, there shall not have been any change, or any
development involving a prospective change, in or affecting the business or
properties of the Company, the Sponsor or American Home or any of their
respective affiliates the effect of which, in any case, is, in that
Underwriter’s reasonable judgment, so material and adverse as to make it
impracticable or inadvisable to proceed with the offering or the delivery of
the
Underwritten Notes as contemplated by the Registration Statement and the
Prospectus. All actions required to be taken and all filings required to be
made
by the Issuing Entity under the Act and the Exchange Act prior to the sale
of
the Underwritten Notes shall have been duly taken or made.
6.3 The
Company shall have delivered to the Underwriters a certificate, dated the
Closing Date, of the President, an Executive Vice President, a Senior Vice
President or a Vice President of the Company to the effect that the signer
of
such certificate has examined this Agreement, the Prospectus, the Indenture,
the
Servicing Agreements, the Mortgage Loan Purchase Agreement, the Trust Agreement
and various other closing documents, and that, to the best of his or her
knowledge after reasonable investigation:
(a) the
representations and warranties of the Company in this Agreement and in the
Trust
Agreement are true and correct in all material respects;
(b) the
Company has, in all material respects, complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied hereunder
at or prior to the Closing Date;
(c) no
stop
order suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or are
contemplated;
(d) subsequent
to the respective dates as of which information is given in the Prospectus,
and
except as set forth or contemplated in the Prospectus, there has not been any
material adverse change in the general affairs, business, key personnel,
capitalization, financial condition or results of operations of the Company,
the
Sponsor or American Home;
(e) except
as
otherwise stated in the Prospectus, there are no actions, suits or proceedings
pending before any court or governmental agency, authority or body or, to their
knowledge, threatened, against the Company, the Sponsor or American Home that
could reasonably have a material adverse affect on (i) the Company, the Sponsor
or American Home or (ii) the transactions contemplated by this Agreement;
and
16
(f) attached
thereto are true and correct copies of a letter or letters from one or more
nationally recognized statistical rating agencies confirming that the
Underwritten Notes have been rated in one of the four highest grades by each
of
such agencies rating that class of Underwritten Notes and that such rating
has
not been lowered since the date of such letter.
6.4 American
Home shall have delivered to the Underwriters a certificate, dated the Closing
Date, of the President, an Executive Vice President, a Managing Director or
a
Director of American Home to the effect that the signer of such certificate
has
examined the Servicing Agreements, the Indenture, the Mortgage Loan Purchase
Agreement, the Trust Agreement and this Agreement and that, to his or her
knowledge after reasonable investigation, the representations and warranties
of
American Home contained in this Agreement are true and correct in all material
respects.
6.5 The
Sponsor shall have delivered to the Underwriters a certificate, dated the
Closing Date, of the President, a Managing Director or a Director of the Sponsor
to the effect that the signer of such certificate has examined the Mortgage
Loan
Purchase Agreement and that, to his or her knowledge after reasonable
investigation, the representations and warranties of the Sponsor contained
in
the Mortgage Loan Purchase Agreement are true and correct in all material
respects.
6.6 You
shall
have received the opinion and letter of Xxxxxxx Xxxxxxxx & Xxxx LLP,
counsel
for the Company, the Sponsor and American Home, dated the Closing Date and
substantially to the effect set forth in Exhibit A and Exhibit B [NOTE: Exhibit
B will be revised to address the Definitive Free Writing
Prospectus].
6.7 You
shall
have received from XxXxx Xxxxxx LLP,
counsel
for the Underwriters, an opinion dated the Closing Date in form and substance
satisfactory to the Underwriters.
6.8 (i)
You
shall have received from Deloitte & Touche LLP,
certified public accountants, a letter addressed to the Underwriters and dated
the date hereof and satisfactory in form and substance to the Underwriters
and
the Underwriters’ counsel, to the effect that they have performed certain
specified procedures, all of which have been agreed to by the Underwriters,
as a
result of which they determined that certain information of an accounting,
financial or statistical nature set forth in the Prospectus Supplement under
the
captions “The Mortgage Pool” and “Description of the Notes” agrees with the
records of the Company, the Sponsor and American Home excluding any questions
of
legal interpretation.
(ii)
At
the
Closing Date, Deloitte & Touche LLP
and/or
any other firm of certified independent public accountants acceptable to you
shall have furnished to you a letter, addressed to you, and in form and
substance satisfactory to you in all respects, relating to the extent such
information is not covered in the letter or letters provided pursuant to Section
6.7(i), to the characteristics of the mortgage loans, as presented in the
Prospectus Supplement.
17
6.9 The
Class
II-A Notes shall have been rated “AAA” by Fitch, Inc. (“Fitch”) and “AAA” by
Standard and Poor’s, a division of The XxXxxx-Xxxx Companies, Inc. (“S&P”).
The Class II-M-1 Notes shall have been rated at least “AA” by Fitch and “AA” by
S&P.
6.10 You
shall
have received the opinions of Xxxxxxxx, Xxxxxx & Finger LLP,
special
counsel to the Owner Trustee and the Issuing Entity, dated the Closing Date,
substantially to the effect set forth in Exhibit C-1.
6.11 You
shall
have received the opinions of Xxxxxxxxxxxx Xxxx & Xxxxxxxxx LLP,
counsel
to the Indenture Trustee, dated the Closing Date, substantially to the effect
set forth in Exhibit C-2.
6.12 You
shall
have received from Xxxxxxx Xxxxxxxx & Xxxx LLP,
counsel
to the Company, reliance letters with respect to any opinions delivered to
Standard & Poor’s and Xxxxx’x.
The
Company will furnish you with conformed copies of the above opinions,
certificates, letters and documents as you reasonably request.
If
any of
the conditions specified in this Article 6 shall not have been fulfilled in
all
material respects when and as provided in this Agreement, or if any of the
opinions and certificates mentioned above or elsewhere in this Agreement shall
not be in all material respects reasonably satisfactory in form and substance
to
the Underwriters, this Agreement and all obligations of the Underwriters
hereunder may be canceled at, or at any time prior to, the Closing Date by
any
of the Underwriters. Notice of such cancellation shall be given to the Company
in writing, or by telephone or telegraph confirmed in writing.
7. Indemnification
and Contribution.
7.1 The
Company and American Home, jointly and severally, agree to indemnify and hold
harmless the Underwriters and each person, if any, who controls an Underwriter
within the meaning of either Section 15 of the Act or Section 20 of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), from and
against any and all losses, claims, damages and liabilities (including
reasonable legal or other expenses) to which you or any such person may become
subject under the Act or the Exchange Act, or otherwise, insofar as such losses,
claims, damages, liabilities or expenses arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in
the
Definitive Free Writing Prospectus, or in any Issuer Information contained
in
any other Free Writing Prospectus, or in any Underwriter Derived Information
to
the extent caused by any material error in the Pool Information, or in the
Registration Statement for the registration of the Underwritten Notes as
originally filed or in any amendment thereof or other filing incorporated by
reference therein, or in the Prospectus or incorporated by reference therein
(if
used within the period set forth in Section 5.3 hereof and as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or arise out of or are based upon any omission or alleged omission
to
state therein a 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, except insofar as such losses, claims, damages, or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon any information with respect to which
the Underwriters have agreed to indemnify the Company pursuant to Section 7.2.
This indemnity agreement will be in addition to any liability which the Company
or American Home may otherwise have.
18
7.2 The
Underwriters agree, severally and not jointly, to indemnify and hold harmless
the Company, American Home, their respective directors or officers and any
person controlling the Company or American Home to the same extent as the
indemnity set forth in Section 7.1 above from the Company and American Home
to
the Underwriters, but only with respect to (i) the Underwriters’ Information and
the Decrement/Yield Tables, (ii) any Underwriter Derived Information, except
to
the extent of any errors in any Underwriter Derived Information that are caused
by errors in the Pool Information, (iii) any Free Writing Prospectus for which
the conditions set forth in Section 4.4(e) above are not satisfied with respect
to the prior approval by the Company, (iv) any portion of any Free Writing
Prospectus (other than the Definitive Free Writing Prospectus) not constituting
Issuer Information, (v) any liability resulting from your failure to provide
any
investor with the Definitive Free Writing Prospectus prior to entering into
a
Contract of Sale with such investor or failure to file any Free Writing
Prospectus required to be filed by the Underwriters in accordance with Section
5.11, and (vi) any liability resulting from your failure to comply with Section
4.7 in connection with any road show. This indemnity agreement will be in
addition to any liability which the Underwriters may otherwise
have.
Each
of
the Company and American Home acknowledges that the Underwriters’ Information
and the Decrement/Yield Tables constitute the only information furnished in
writing by or on behalf of the Underwriters expressly for use in the
Registration Statement or the Prospectus or in any amendment thereof or
supplement thereto, as the case may be.
7.3 In
case
any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to
either Section 7.1 or 7.2, such person (the “indemnified party”) shall promptly
notify the person against whom such indemnity may be sought (the “indemnifying
party”) in writing and the indemnifying party, upon request of the indemnified
party, shall retain counsel reasonably satisfactory to the indemnified party
to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the reasonable fees and disbursements
of such counsel related to such proceeding. In any such proceeding, any
indemnified party shall have the right to retain its own counsel, but the
reasonable fees and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the indemnifying party and the indemnified party
shall have mutually agreed to the retention of such counsel or (ii) the named
parties to any such proceeding (including any impleaded parties) include both
the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. In any case described in subclauses (i) or
(ii) of the immediately preceding sentence, the reasonable fees and
disbursements of counsel for the indemnified party shall be paid by the
indemnifying party. It is understood that the indemnifying party shall not,
in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the reasonable fees and expenses of more than one separate firm
for all such indemnified parties. Such firm shall be designated in writing
by
you, in the case of parties indemnified pursuant to Section 7.1 and by the
Company or American Home, in the case of parties indemnified pursuant to Section
7.2. The indemnifying party may, at its option, at any time upon written notice
to the indemnified party, assume the defense of any proceeding and may designate
counsel reasonably satisfactory to the indemnified party in connection therewith
provided that the counsel so designated would have no actual or potential
conflict of interest in connection with such representation. Unless it shall
assume the defense of any proceeding the indemnifying party shall not be liable
for any settlement of any proceeding, effected without its written consent
(such
consent not to be unreasonably withheld or delayed), but if settled with such
consent or if there shall be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. If the
indemnifying party assumes the defense of any proceeding, it shall be entitled
to settle such proceeding with the consent of the indemnified party or, if
such
settlement provides for release of the indemnified party in connection with
all
matters relating to the proceeding which have been asserted against the
indemnified party in such proceeding by the other parties to such settlement,
without the consent of the indemnified party. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement does not
include a statement as to or admission of, fault, culpability or a failure
to
act by or on behalf of any such indemnified party and such settlement includes
an unconditional release of the indemnified party from all liability arising
out
of the action or claim related to such proceeding.
19
7.4 If
the
indemnification provided for in this Section 7 is unavailable to an indemnified
party under Section 7.1 or 7.2 hereof or insufficient in respect of any losses,
claims, damages, expenses or liabilities referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, expenses or liabilities, in such proportion
as
is appropriate to reflect (i) the relative benefits received by the Company
and
American Home on the one hand and the Underwriters on the other from the
offering of the Underwritten Notes or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
(i)
above but also the relative fault of the Company and American Home on the one
hand and the Underwriters on the other in connection with the statements or
omissions or alleged statements or alleged omissions which resulted in such
losses, claims, damages, expenses or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company and
American Home on the one hand, and by the Underwriters on the other shall be
in
the same proportions that the purchase price paid by the Underwriters to the
Company for the Underwritten Notes (“Net Proceeds”) bears to the excess of (a)
the purchase prices paid by investors to the Underwriters for the Underwritten
Notes (the “Public Offering Price”) over (b) Net Proceeds. The relative fault of
the Company and American Home on the one hand and of any Underwriter on the
other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company, American Home or by the Underwriters, and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
20
7.5 The
Company, American Home and the Underwriters agree that it would not be just
and
equitable if contribution pursuant to this Section 7 were determined by pro
rata
allocation or by any other method of allocation which does not take account
of
the considerations referred to in Section 7.4, above. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in this Section 7 shall be deemed to include, subject
to
the limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any
such
action or claim and any and all amounts paid in settlement of any claim of
litigation except where the indemnified party is required to bear such expenses
pursuant to Section 7.4; which expenses the indemnifying party shall pay as
and
when incurred, at the request of the indemnified party, to the extent that
the
indemnifying party believes that it will be ultimately obligated to pay such
expenses. Notwithstanding the provisions of this Section 7, each Underwriter
shall not be required to contribute any amount in excess of the amount by which
the total aggregate Public Offering Price of the Underwritten Notes underwritten
by such Underwriter and distributed to the public by such Underwriter exceeds
the Net Proceeds with respect to such Underwriter. In the event that any
expenses so paid by the indemnifying party are subsequently determined to not
be
required to be borne by the indemnifying party hereunder, the party which
received such payment shall promptly refund the amount so paid to the party
which made such payment. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
7.6 The
indemnity and contribution agreements contained in this Section 7 and the
representations and warranties of the Company and American Home in this
Agreement shall remain operative and in full force and effect regardless of
(i)
any termination of this Agreement, (ii) any investigation made by an Underwriter
or on behalf of the Underwriters or any person controlling an Underwriter or
by
or on behalf of the Company or American Home and their respective directors
or
officers or any person controlling the Company or American Home and (iii)
acceptance of and payment for any of the Underwritten Notes.
8. Termination. (a)
This
Agreement shall be subject to termination by notice given to the Company and
American Home, if the sale of the Underwritten Notes provided for herein is
not
consummated because of any failure or refusal on the part of the Company or
American Home to comply with the terms or to fulfill any of the conditions
of
this Agreement, or if for any reason the Company or American Home shall be
unable to perform their respective obligations under this Agreement. If you
terminate this Agreement in accordance with this Section 8, the Company or
American Home will reimburse you for all reasonable out-of-pocket expenses
(including reasonable fees and disbursements of counsel and accountants) that
shall have been reasonably incurred by the Underwriters in connection with
the
proposed purchase and sale of the Underwritten Notes and such termination and
reimbursement.
(b) The
Underwriters shall have the right to terminate this Agreement at any time prior
to the Closing Date by notice given to the Company and American Home (i) if
any
domestic or international event or act or occurrence has materially disrupted
the securities markets, (ii) if trading on the New York or American Stock
Exchanges shall have been suspended, or minimum or maximum prices for trading
shall have been fixed, or maximum ranges for prices for securities shall have
been required on the New York or American Stock Exchanges by the New York or
American Stock Exchanges or by order of the Commission or any other governmental
authority having jurisdiction, (iii) if a banking moratorium has been declared
by a state or Federal authority, (iv) if a banking moratorium in foreign
exchange trading by major international banks or persons has been declared,
(v)
if any new restriction materially and adversely affecting the distribution
of
the Underwritten
Notes shall
have become effective, or (vi) there shall have occurred any outbreak or
escalation of hostilities or other calamity or crisis the effect of which on
the
financial markets is such as to make it, in your reasonable judgment,
impracticable to market the Underwritten Notes on the terms specified in this
Agreement. Any notice of termination pursuant to this Section 8(b) shall be
by
telephone, telex, or telegraph, confirmed in writing by letter.
21
9. Certain
Representations and Indemnities to Survive.
The
respective agreements, representations, warranties, indemnities and other
statements of the Company, American Home or the officers of any of the Company
or American Home, and the Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation,
or statement as to the results thereof, made by the Underwriters or on their
behalf or made by or on behalf of the Company or American Home or any of their
respective officers, directors or controlling persons, and will survive delivery
of and payment for the Underwritten Notes and any termination of this
Agreement.
10. Additional
Underwriting of the Notes.
Each
Underwriter agrees that in connection with any subsequent underwriting of the
non-underwritten Notes acquired from American Home or its affiliates, the
Underwriter:
|
(a)
|
Will
enter into an underwriting agreement with American Home and the Company
substantially similar to this
Agreement;
|
|
(b)
|
Will
provide a copy of the Prospectus Supplement, together with any intervening
amendments thereof and supplements thereto, and copies of all remittance
reports to investors in the non-underwritten Notes, together with
any
additional disclosure mutually agreeable to the Underwriters, American
Home and the Company; and
|
|
(c)
|
Will
not require an underwriting fee.
|
In
connection with any subsequent underwriting, the Company and American Home
shall
provide to the Underwriters any additional documentation, letters or opinions
as
it may reasonably require, including, without limitation, letters and opinions
provided by counsel to the Issuing Entity updated to reflect the subsequent
underwriting.
Notices.
All
communications hereunder will be in writing and effective only on receipt,
and,
if sent to an Underwriter, will be mailed, delivered or telegraphed and
confirmed to the Underwriter at Xxxxxx Brothers Inc., 000 Xxxxxxx Xxxxxx,
0xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel, ABN AMRO Incorporated,
00
Xxxx 00xx
Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel, Greenwich Capital Markets,
Inc., 000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000, Attention: General
Counsel, or if sent to the Company, will be mailed, delivered or telegraphed
and
confirmed to it at American Home Mortgage Securities LLC, 000 Xxxxxxxxxxx Xxxx,
Xxxxxxxx, Xxx Xxxx 00000, Attention: General Counsel; or if sent to American
Home, will be mailed, delivered or telegraphed and confirmed to it at American
Home Mortgage Investment Corp., 000 Xxxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000,
Attention: General Counsel.
22
11. 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 7 hereof, and their successors and assigns,
and
no other person will have any right or obligation hereunder.
12. Applicable
Law.
This
Agreement will be governed by and construed in accordance with the laws of
the
State of New York, without giving effect to principles governing conflicts
of
law.
13. Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed an original, which taken together shall constitute one and the same
instrument.
23
If
the
foregoing is in accordance with your understanding of our agreement, please
sign
and return to us a counterpart hereof, whereupon this letter and your acceptance
shall represent a binding agreement among the Company, American Home and the
Underwriters.
| Very truly yours, | ||
| |
|
AMERICAN HOME MORTGAGE SECURITIES LLC |
| By: | /s/ Xxxx X. Xxxx | |
|
Name:
Xxxx X. Xxxx
Title:
Executive Vice President
|
||
| AMERICAN HOME MORTGAGE INVESTMENT CORP. | ||
| |
|
|
| By: | /s/ Xxxx X. Xxxx | |
|
Name:
Xxxx X. Xxxx
Title:
Executive Vice President, General Counsel &
Secretary
|
||
The
foregoing Underwriting Agreement
is
xxxxxx
confirmed and accepted as of
| XXXXXX BROTHERS INC. | |||
| By: /s/ Xxxx Xxxxx | |||
|
Name:
Xxxx Xxxxx
Title:
Vice President
|
|||
| GREENWICH CAPITAL MARKETS INC. | |||
| By: /s/ Xxxx Xxxxxxxx | |||
|
Name:
Xxxx Xxxxxxxx
Title:
Senior Vice President
|
| ABN AMRO INCORPORATED | |||
| By: /s/ Xxxx Xxxxxxx | |||
|
Name:
Xxxx Xxxxxxx
Title:
Managing Director
|
SCHEDULE
I
|
Underwriter
|
Amount
|
|
Xxxxxx
Brothers Inc.
|
$199,384,800
|
|
Greenwich
Capital Markets
|
$24,923,100
|
|
ABN
AMRO Incorporated
|
$24,923,100
|
EXHIBIT
A
CLOSING
OPINION OF XXXXXXX XXXXXXXX & XXXX LLP
EXHIBIT
B
10B-5
LETTER OF XXXXXXX XXXXXXXX & XXXX LLP
EXHIBIT
C-1
OPINIONS
OF XXXXXXXX, XXXXXX & FINGER
EXHIBIT
C-2
OPINION
OF XXXXXXXXXXXX XXXX & XXXXXXXXX LLP
EXHIBIT
D
Underwriters
Information
EXHIBIT
E
[Reserved]
EXHIBIT
F
[RESERVED]
EXHIBIT
G
March
[
], 2006
American
Home Mortgage Securities LLC
000
Xxxxxxxxxxx Xxxx
Melville,
New York 11747
|
Re:
|
American
Home Mortgage Securities LLC, Asset-Backed Certificates and
Mortgage-
|
Backed
Notes, Series 2006-1, Class [___________]
Pursuant
to Section 4.3 of the Underwriting Agreement, dated March [], 2006, among
American Home Mortgage Securities LLC, American Home Mortgage Investment Corp.
and Xxxxxx Brothers Inc., Greenwich Capital Markets Inc, and ABN AMRO
Incorporated (the “Underwriters”) relating to the Underwritten Notes referenced
above, the undersigned does hereby certify that:
|
(a)
|
The
prepayment assumption used in pricing the Underwritten Notes was
_____%
[___].
|
|
(b)
|
Set
forth below is (i) the first price, as a percentage of the principal
balance or notional amount, as applicable, of each class of Certificates,
at which 10% of the aggregate principal balance or notional amount,
as
applicable, of each such class of Certificates was sold to the public
at a
single price, if applicable, or (ii) if 10% or more of a class of
Certificates have been sold to the public but no single price is
paid for
at least 10% of the aggregate principal balance or notional amount,
as
applicable, of such class of Underwritten Notes, then the weighted
average
price at which the Certificates of such class were sold expressed
as a
percentage of the principal balance or notional amount, as applicable,
of
such class of Underwritten Notes, or (iii) if less than 10% of the
aggregate principal balance or notional amount, as applicable, of
a class
of Certificates has been sold to the public, the purchase price for
each
such class of Underwritten Notes paid by the Underwriters expressed
as a
percentage of the principal balance or notional amount, as applicable,
of
such class of Underwritten Notes calculated by: (1) estimating the
fair
market value of each such class of Underwritten Notes not
sold to the public as of March 29, 2006; (2) adding such estimated
fair
market value to the aggregate purchase price of each class of Underwritten
Notes actually sold to the public as of such date; (3) dividing each
of
the fair market values determined in clause (1) by the sum obtained
in
clause (2); (4) multiplying the quotient obtained for each class
of
Underwritten Notes in clause (3) by the purchase price paid by the
Underwriters for all the Underwritten Notes of each class; and (5)
for
each class of Underwritten Notes, dividing the product obtained for
such
class of Underwritten Notes in clause (4) by the original principal
balance or notional amount, as applicable, of such class of Underwritten
Notes:
|
Underwritten
Notes: ________
[*
less
than 10% has been sold to the public]
The
prices set forth above do not include accrued interest with respect to periods
before closing.
|
XXXXXX
BROTHERS INC.
|
|||
| By: | |||
|
|
|||
|
Name:
Title: |
| GREENWICH CAPITAL MARKETS INC. | |||
| By: | |||
|
|
|||
|
Name:
Title: |
| ABN AMRO INCORPORATED | |||
| By: | |||
|
|
|||
|
Name:
Title: |
EXHIBIT
H
[RESERVED]
EXHIBIT
I
FOOTNOTE
271 INFORMATION
[Excerpt
from Offering Reform adopting release-bold headings added for convenience of
reference]
In
the
case of asset-backed Issuing Entities certain information comprehended within
the definition of ABS informational and computational material is analogous
to
the term of securities and is therefore Issuer Information. For example, we
would expect that the following categories of such material, which are derived
from the definition of ABS informational and computational materials, are
generally Issuer Information:
(1) Structural
information-factual
information regarding the
asset-backed securities being offered and the structure and basic parameters
of
the securities, such as the number of classes, seniority, payment priorities,
terms of payment, the tax, ERISA or other legal conclusions of counsel, and
descriptive information relating to each class (e.g., principal amount, coupon,
minimum denomination, price or anticipated price, yield, weighted average life,
credit enhancements, anticipated ratings, and other similar information relating
to the proposed structure of the offering);
(2) Collateral
information-factual
information regarding the pool assets underlying the asset-backed securities,
including origination, acquisition and pool selection criteria, information
regarding any prefunding or revolving period applicable to the offering,
information regarding significant obligors, data regarding the contractual
and
related characteristics of the underlying pool assets (e.g., weighted average
coupon, weighted average maturity, delinquency and loss information and
geographic distribution) and other factual information concerning the parameters
of the asset pool appropriate to the nature of the underlying assets, such
as
the type of assets comprising the pool and the programs under which the loans
were originated;
(3) Key
parties information-identification
of key parties to the transaction, such as servicers, trustees, depositors,
sponsors, originators and providers of credit enhancement or other support,
including information about any such party;
(4) Static
pool data-static
pool data, as referenced in Item 1105 of Regulation AB [17 CFR 229.1105], such
as for the sponsor’s and/or servicer’s portfolio, prior transactions or the
asset pool itself; and
(5) Issuing
Entity computational material-to
the
extent that the information is provided by the Issuing Entity, depositor,
affiliated depositor, or sponsor, statistical information displaying for a
particular class of asset-backed securities the yield, average life, expected
maturity, interest rate sensitivity, cash flow characteristics, total rate
of
return, option adjusted spread or other financial or statistical information
related to the class or classes under specified prepayment, interest rate,
loss
or other hypothetical scenarios. (Where such information is prepared by an
underwriter or dealer, it is not Issuer Information, even when derived from
Issuer Information.)
