PHH MORTGAGE CAPITAL LLC PHHMC Mortgage Pass-Through Certificates, Series 2006-3
EXHIBIT
1.1
PHH
MORTGAGE CAPITAL LLC
PHHMC
Mortgage Pass-Through Certificates, Series 2006-3
|
Approximate
Initial
Certificate
Principal Balance
|
Pass-Through
Rate
|
|
|
Class
A-1
|
$24,846,218
|
Variable
|
|
Class
A-2
|
$25,297,813
|
Variable
|
|
Class
A-3
|
$25,297,813*
|
0.39%
|
|
Class
A-4
|
$24,846,218
|
Variable
|
|
Class
A-5
|
$
9,938,487
|
Variable
|
*Notional
Amount
September
26, 2006
Xxxxxxx
X. Xxxxx Securities, LLC
00
Xxxx
Xxxxxx
Greenwich,
CT 06830
Ladies
and Gentlemen:
PHH
Mortgage Capital LLC, a Delaware limited liability company (the “Depositor”),
proposes to engage you (also referred to herein as the “Agent”) as placement
agent, on a best efforts basis only pursuant to this Agency Agreement (the
“Agreement”), for all of the PHHMC Mortgage Pass-Through Certificates, Series
2006-3, Class A-1, Class A-2, Class A-3, Class A-4 and Class A-5 Certificates
(collectively, the “Certificates”), having the aggregate principal or notional
amounts and Pass-Through Rates set forth above. The Certificates, together
with
the Class A-6, Class A-7, Class A-8, Class B-1, Class B-2, Class B-3, Class
B-4,
Class B-5 and Class B-6 Certificates (collectively, the “Private Certificates”)
and the Class R-I Certificates and Class R-II Certificates (together, the “Class
R Certificates”) of the same series, will evidence the entire beneficial
interest in the Trust Fund (as defined in the Pooling and Servicing Agreement
referred to below) consisting primarily of a pool (the “Pool”) of conventional,
fixed-rate one- to four- family residential mortgage loans (the “Mortgage
Loans”) as described in the Prospectus Supplement (as hereinafter defined) to be
sold by the Depositor. The Mortgage Loans will be purchased by the Depositor
from PHH Mortgage (as defined herein) and Xxxxxx’x Gate Residential Mortgage
Trust (“Xxxxxx’x Gate” and together with PHH Mortgage, the “Sellers”) pursuant
to a mortgage loan purchase agreement (the “Mortgage Loan Purchase Agreement”)
to be dated as of September 1, 2006 (the “Cut-off Date”).
The
Certificates will be issued pursuant to a pooling and servicing agreement (the
“Pooling and Servicing Agreement”) to be dated as of the Cut-off Date among the
Depositor, as depositor, PHH Mortgage Corporation, as master servicer (“PHH
Mortgage” or the “Master Servicer”) and Citibank, N.A., as trustee (the
“Trustee”). The Certificates are described more fully in the Base Prospectus and
the Prospectus Supplement (each as hereinafter defined) which the Depositor
has
furnished to you.
1. Representations,
Warranties and Covenants.
1.1 The
Depositor represents and warrants to, and agrees with you that as of the date
hereof (or as of such other date as may be specified in the representation
and
warranty):
(a) The
Depositor has filed with the Securities and Exchange Commission (the
“Commission”) a registration statement (No. 333-131214) 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 Certificates, which registration statement has become
effective, and a copy of which, as amended to the date hereof, has heretofore
been delivered to you. The Depositor 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 supplement dated September 26, 2006 (the
“Prospectus Supplement”), to the prospectus dated June 26, 2006 (the “Base
Prospectus”), relating to the Certificates and the method of distribution
thereof. Such registration statement (No. 333-131214) including exhibits thereto
and any information incorporated therein by reference, as amended at the date
hereof, is hereinafter called the “Registration Statement”; and the Base
Prospectus and the Prospectus Supplement and any information incorporated
therein by reference, together with any amendment thereof or supplement thereto
authorized by the Depositor on or prior to the Closing Date for use in
connection with the offering of the Certificates, are hereinafter called the
“Prospectus”. The Depositor further proposes to prepare, after the final terms
of all classes of the Certificates have been established, a Term Sheet and
Term
Sheet Supplement (such Term Sheet and Term Sheet Supplement, together with
the
Basic Prospectus, the “Definitive Free Writing Prospectus”). The Definitive Free
Writing Prospectus must be provided to each investor prior to the time of
Contract of Sale (as defined herein).
(b) The
Registration Statement has become effective, and the Registration Statement
as
of the effective date (the “Effective Date”) and as of the Closing Date, and the
Prospectus, as of the date of the Prospectus Supplement and as of the Closing
Date, complied in all material respects with the applicable requirements of
the
Act and the 1933 Act Regulations; and the Registration Statement, as of the
Effective Date and as of the date of any amendment thereto, 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
Depositor nor PHH Mortgage makes any representations or warranties as to (i)
any
information contained in or omitted from the portions of the Prospectus set
forth under the caption “Method of Distribution” relating to the Certificates
and the stabilization legend required by Item 502(d)(1) under Regulation S-K
of
the Act (the “Agent Information”) as set forth in Exhibit C hereto or (ii) any
decrement or yield tables set forth in the section titled “Yield on the
Certificates” in the Prospectus Supplement (the “Decrement/Yield Tables”). In
addition, the Definitive Free Writing Prospectus, as of the date thereof and
as
of the Closing Date, did not and 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. The effective date shall mean the earlier
of the date by which the Prospectus Supplement is first used and the time of
the
first Contract of Sale to which such Prospectus Supplement relates.
(c) The
Depositor 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; and the Depositor is duly qualified to do business
as a foreign limited liability company in good standing in all other
jurisdictions in which its ownership of property or the conduct of its business
as presently conducted by it requires such qualification.
(d) This
Agreement has been duly authorized, executed and delivered by the
Depositor.
(e) As
of the
Closing Date, the Certificates and the Private Certificates will conform in
all
material respects to the description thereof contained in the Prospectus and
the
representations and warranties of the Depositor in the Pooling and Servicing
Agreement will be true and correct in all material respects.
(f) As
of the
Closing Date, the Certificates will be “mortgage related securities” as such
term is defined in Section 3(a)(41) of the Securities Exchange Act of 1934,
as
amended (the “Exchange Act”).
(g) Each
of
the Certificates and the Private Certificates, when validly authenticated,
issued and delivered in accordance with the Pooling and Servicing Agreement,
will be duly and validly issued and outstanding and entitled to the benefits
of
the Pooling and Servicing Agreement, and immediately prior to the delivery
of
the Certificates to the Agent, the Depositor will own the Certificates, and
upon
such delivery the Agent will acquire title thereto, free and clear of any lien,
pledge, encumbrance or other security interest other than one created or granted
by the Agent.
(h) As
of the
Closing Date, the Pooling and Servicing Agreement will have been duly
authorized, executed and delivered by the Depositor and will conform in all
material respects to the description thereof contained in the Prospectus and,
assuming the valid execution thereof by the Trustee and the Master Servicer,
the
Pooling and Servicing Agreement will constitute a valid and binding agreement
of
the Depositor 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 and by general equity
principles.
(i) As
of the
Closing Date, the Mortgage Loan Purchase Agreement will have been duly
authorized, executed and delivered by the Depositor and the Sellers 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 Depositor
and the Sellers 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 and by general equity
principles.
(j) Neither
the issuance or delivery of the Certificates and the Private Certificates,
nor
the consummation of any other of the transactions contemplated herein or in
the
Pooling and Servicing Agreement or the Mortgage Loan Purchase Agreement, nor
compliance with the provisions of the Pooling and Servicing Agreement, the
Mortgage Loan Purchase Agreement or this Agreement, will conflict with or result
in the breach of any material term or provision of the certificate of formation
or bylaws of the Depositor, and the Depositor 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 Depositor is a party
or by which it or its properties are bound, or (ii) any law, decree, order,
rule
or regulation applicable to the Depositor of any court or supervisory,
regulatory, administrative or governmental agency, body or authority, or
arbitrator having jurisdiction over the Depositor, or its properties, the
default in or the breach or violation of which would have a material adverse
effect on the Depositor or the ability of the Depositor to perform its
obligations under the Pooling and Servicing Agreement or the Mortgage Loan
Purchase Agreement; and neither the delivery of the Certificates, nor the
consummation of any other of the transactions contemplated herein or in the
Pooling and Servicing Agreement or the Mortgage Loan Purchase Agreement, nor
the
compliance with the provisions of the Pooling and Servicing Agreement, the
Mortgage Loan Purchase Agreement or this Agreement will result in such a breach,
violation or default which would have such a material adverse
effect.
(k) 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 Depositor of the transactions contemplated by this
Agreement, the Pooling and Servicing Agreement or the Mortgage Loan Purchase
Agreement (other than as required under state securities laws or Blue Sky laws,
as to which no representations and warranties are made by the Depositor), 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 to the
Trustee or, if applicable, to Mortgage Electronic Registration Systems, Inc.
(“MERS”) on behalf of the Trustee, pursuant to the Pooling and Servicing
Agreement that have not yet been completed.
(l) 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 Depositor is a party, or to the best of the Depositor’s knowledge
threatened against the Depositor, 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
Depositor or could reasonably interfere with or materially and adversely affect
the consummation of the transactions contemplated herein or in the Pooling
and
Servicing Agreement or the Mortgage Loan Purchase Agreement.
(m) At
the
time of execution and delivery of the Pooling and Servicing Agreement, the
Depositor will own the mortgage notes (the “Mortgage Notes”) being transferred
to the Trust Fund (as defined in the Pooling and Servicing Agreement) pursuant
to the Pooling and Servicing Agreement, 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 Pooling and
Servicing Agreement, and will not have assigned to any person other than the
Trust Fund any of its right, title or interest in the Mortgage Notes. The
Depositor will have the power and authority to transfer the Mortgage Notes
to
the Trust Fund and to transfer the Certificates to the Agent, and, upon
execution and delivery to the Trustee of the Pooling and Servicing Agreement,
payment by the Agent for the Certificates, and delivery to the Agent of the
Certificates, the Trust Fund will own the Mortgage Notes and the Agent will
acquire title to the Certificates, in each case free of Liens except to the
extent permitted by the Pooling and Servicing Agreement.
(n) Any
taxes, fees and other governmental charges in connection with the execution,
delivery and issuance of this Agreement, the Pooling and Servicing Agreement,
the Mortgage Loan Purchase Agreement, the Certificates and the Private
Certificates have been or will be paid by the Depositor or prior to the Closing
Date, except for fees for recording assignments of Mortgage Loans to the Trustee
or, if applicable, to MERS on behalf of the Trustee, pursuant to the Pooling
and
Servicing Agreement that have not yet been completed, which fees will be paid
by
the Depositor in accordance with the Pooling and Servicing
Agreement.
(o) The
transfer of the Mortgage Loans and the related assets to the Trust Estate at
the
Closing Date will be treated by the Depositor for financial accounting and
reporting purposes as a sale of assets and not as a pledge of assets to secure
debt.
(p) The
Depositor is not, and, after giving effect to the transactions contemplated
by
the Pooling and Servicing Agreement and the Mortgage Loan Purchase Agreement
and
the offering and sale of the Certificates, neither the Depositor nor Trust
Fund
will be, an “investment company” as defined in the Investment Company Act of
1940, as amended.
(q) The
Depositor is not, as of the date upon which it delivers the Definitive Free
Writing Prospectus, an Ineligible Issuer, as such term is defined in Rule 405
of
the 1933 Act Regulations.
1.2 PHH
Mortgage represents and warrants to, and agrees with you that as of the date
hereof (or as of such other date as may be specified in the representation
and
warranty):
(a) As
of the
Closing Date the representations and warranties of PHH Mortgage herein and
in
the Pooling and Servicing Agreement will be true and correct in all material
respects.
(b) PHH
Mortgage has been duly incorporated and is validly existing as a corporation
in
good standing under the laws of the State of New Jersey and has the requisite
corporate power to own its properties and to conduct its business as presently
conducted by it; and PHH Mortgage is duly qualified to do business in good
standing in all other jurisdictions in which its ownership of property or the
conduct of its business as presently conducted by it requires such
qualification.
(c) This
Agreement has been duly authorized, executed and delivered by PHH
Mortgage.
(d) As
of the
Closing Date, the Pooling and Servicing Agreement will have been duly
authorized, executed and delivered by the Master Servicer and, assuming the
valid execution thereof by the Trustee and the Depositor, the Pooling and
Servicing Agreement will constitute a valid and binding agreement of the Master
Servicer 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 and by general equity
principles.
(e) As
of the
Closing Date, the Mortgage Loan Purchase Agreement will have been duly
authorized, executed and delivered by PHH Mortgage and will constitute a valid
and binding agreement of PHH Mortgage 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 and by
general equity principles.
2. Placement
of Certificates.
2.1 Subject
to the terms and conditions set forth in this Agreement, the Depositor and
PHH
Mortgage hereby appoint the Agent as their agent to solicit and receive offers
to purchase the Certificates for settlement on September 28, 2006 (the “Closing
Date”), and the Agent hereby accepts such appointment and agrees to use
reasonable efforts, as your agent and not as principal, to so solicit and
receive offers to purchase the Certificates. The Agent further agrees to use
reasonable efforts to assist you in connection with the sale of the Certificates
to the purchasers thereof. Notwithstanding the foregoing, the Depositor, in
it
sole discretion, may accept an offer to purchase any of the Certificates on
a
date after the Closing Date, in which case any such Certificates will be held
by
PHH Mortgage pending such settlement date.
2.2 You
are
not required to place any specific dollar amount of Certificates, but will
use
your best efforts to place the Certificates. The termination of the offering
is
the earlier to occur of one year from the date of this Agreement and the date
on
which all of the Certificates have been sold. The Depositor reserves the right
to terminate your offering of the Certificates pursuant to this Agreement,
as to
any Certificates for which an offer to purchase that is acceptable to the
Depositor in its sole discretion is not obtained by you. In connection with
the
foregoing, and in accordance with Section 4 hereof and applicable law you will:
(a) offer the Certificates to prospective investors; (b) solicit indications
of
interest to purchase the Certificates; (c) submit pricing and settlement
information for each proposed sale to the Depositor, which in each case shall
be
subject to the Depositor’s approval in its sole discretion; (d) prepare and
deliver a confirmation for each sale in your capacity as agent; (e) refrain
from
using any Written Communications except as permitted by Section 4(d)(1) hereof;
and (f) instruct all investors that they must deposit with Citibank, N.A. the
amount of their purchase price by wire transfer of immediately available funds,
which must be received by Citibank, N.A. no later than 10:00 a.m. New York
City
time on the Closing Date (or, if applicable, on any subsequent settlement date),
and that any investor who fails to do so will be subject to fail costs. All
settlements for the sale of the Certificates will be made through Citibank,
N.A.
Each confirmed sale of any of the Certificates by the Depositor to an investor
will not be contingent on any other sale. As used herein, the terms “offer” and
“sale” have the meanings specified in Section 2(3) of the Act.
The
Agent
represents and warrants that it has not offered and will not offer any
Certificates in any of the EU Member States or in Iceland, Liechenstein or
Norway.
The
Agent
may separately engage, at its own expense and with the prior written approval
of
the Depositor and PHH Mortgage, such sub-agents as it may deem necessary or
appropriate.
2.3 The
Depositor shall have the sole right to accept offers to purchase Certificates
from it and may reject any such offer in whole or in part. The Agent also shall
have the right, in its discretion reasonably exercised and without notice to
the
Depositor or PHH Mortgage, to reject in whole or in part any offer to purchase
Certificates received by it.
2.4 The
Agent
may at any time agree to purchase, as principal, any portion of the
Certificates, but has no obligation whatsoever to do so. The Depositor or PHH
Mortgage may at any time agree to sell to the Agent, as principal, any portion
of the Certificates, but have no obligation whatsoever to do so.
3. Delivery
and Payment.
Delivery of and payment for the Certificates shall be made at the office of
Xxxxxxx Xxxxxxxx & Xxxx llp
at 10:00
a.m. New York City time, on September 28, 2006 or such later date as you shall
designate, which date and time may be postponed by agreement between you and
the
Depositor (such date and time of delivery and payment for the Certificates
being
herein called the “Closing Date”). Delivery of the Certificates shall be made to
the purchasers thereof through the Depository Trust Company (“DTC”) against
payment by the purchaser thereof of the purchase price therefor to or upon
the
order of the Depositor by wire transfer in immediately available
funds.
4. Offering
by Agent.
It is
understood that you propose to offer the Certificates for sale to the public
as
agent on behalf of the Depositor and PHH Mortgage as set forth in the
Prospectus.
(a) It
is
understood that the Agent proposes to solicit offers for the Certificates for
sale to the public as set forth in the Prospectus and the Agent agrees that
all
such solicitations by it shall be made in compliance with all applicable laws
and regulations. Prior to the date hereof, you have not offered, pledged, sold,
disposed of or otherwise transferred any Certificate or any security backed
by
the Mortgage Loans, any interest in any Certificate or such security or any
Mortgage Loan.
(b) It
is
understood that the Agent will solicit offers to purchase the Certificates
as
follows:
(1)
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
Certificates; 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.
(2)
Any
Free Writing Prospectus (other than the Definitive Free Writing Prospectus)
relating to the Certificates used by the Agent in compliance with the terms
of
this Agreement prior to the time the Depositor has entered into a Contract
of
Sale for Certificates shall prominently set forth substantially 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 Certificates referred to in this free writing
prospectus and to solicit an offer to purchase the Certificates, 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 Certificates
until your offer to purchase Certificates has been accepted. Any offer by you
to
purchase Certificates will not be accepted, and you will not have any
contractual commitment to purchase any of the Certificates until after you
have
received the Definitive Free Writing Prospectus. You may withdraw your offer
to
purchase Certificates at any time prior to the acceptance of your
offer.
“Written
Communication” has the same meaning as that term is defined in Rule 405 of the
1933 Act Regulations.
(3)
Any
Free Writing Prospectus relating to Certificates and used by the Agent in
connection with marketing the Certificates, including the Definitive Free
Writing Prospectus, shall prominently set forth substantially the following
statement:
The
Certificates referred to in these materials are being sold when, as and if
issued. You are advised that Certificates may not be issued that have the
characteristics described in these materials. The issuing entity’s obligation to
sell such Certificates to you is conditioned on the mortgage loans and
certificates having the characteristics described in these materials. If for
any
reason such Certificates are not delivered, we will notify you, and neither
the
issuing entity nor any agent or underwriter will have any obligation to you
to
deliver all or any portion of the Certificates which you have committed to
purchase, and none of the issuing entity nor any agent or underwriter will
be
liable for any costs or damages whatsoever arising from or related to such
non-delivery.
(c)
It is
understood that no investor will enter into a Contract of Sale until the
Definitive Free Writing Prospectus has been conveyed to the investor. 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.
The Definitive Free Writing Prospectus shall prominently set forth substantially
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 delivered in connection with this
offering.
(d) It
is
understood that the Agent may prepare and provide to prospective investors
certain Free Writing Prospectuses (as defined below), subject to the following
conditions:
(1)
Unless preceded or accompanied by a prospectus satisfying the requirements
of
Section 10(a) of the Act, the Agent shall not convey or deliver any Written
Communication to any person in connection with the initial offering of the
Certificates, 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, or Permitted Additional
Materials.
(2)
The
Agent 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.
(3)
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 D hereto and (ii) has been either prepared by, or has been reviewed
and
approved by, the Depositor. “Agent Derived Information” shall refer to
information of the type described in clause (5) of such footnote 271 when
prepared by the Agent. “Permitted
Additional Materials” shall mean information that is not ABS Informational and
Computational Materials and (x) that are referred to in Section 4(d)(12)),
(y)
that constitute Certificate price, yield, weighted average life, subscription
or
allocation information, or a trade confirmation, or (z) otherwise with respect
to which the Depositor has provided written consent to the Agent to include
in a
Free Writing Prospectus. As used herein with respect to any Free Writing
Prospectus, “Pool Information” means the information with respect to the
characteristics of the Mortgage Loans and administrative and servicing fees,
as
provided by or on behalf of the Depositor to the Agent at the time most recent
to the date of such Free Writing Prospectus.
(4)
All
Free Writing Prospectuses
provided
to prospective investors,
whether
or not
filed
with the Commission,
shall
bear a legend including substantially 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 DEPOSITOR HAS FILED WITH THE SEC FOR MORE COMPLETE INFORMATION ABOUT THE
ISSUER AND THE OFFERING. YOU MAY GET THESE DOCUMENTS AT NO CHARGE BY VISITING
XXXXX ON THE SEC WEB SITE AT XXX.XXX.XXX
ALTERNATIVELY,
THE ISSUER, ANY AGENT, 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 1-8XX-XXX-XXXX OR VIA E-MAIL AT ________________________.
The
Depositor 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 with the approval of the Agent (which shall not be unreasonably
withheld).
(5)
The
Agent shall deliver to the Depositor and its counsel (in such format as required
by the Depositor) prior to the proposed date of first use thereof, (i) any
Free
Writing Prospectus prepared by or on behalf of the Agent that contains any
information that, if reviewed and approved by the Depositor, would be Issuer
Information, and (ii) any Free Writing Prospectus or portion thereof prepared
by
the Agent that contains only a description of the final terms of the
Certificates after such terms have been established for all classes of
Certificates being publicly offered. No information in any Free Writing
Prospectus (other than the Definitive Free Writing Prospectus) shall consist
of
information of a type that is not included within the definition of ABS
Informational and Computational Materials, or is not Permitted Additional
Materials. To facilitate filing to the extent required by Section 5.9 or 4(f),
as applicable, all Agent Derived Information shall be set forth in a document
separate from the document including Issuer Information. All Free Writing
Prospectuses described in this subsection (5) must be approved by the Depositor
before the Agent provides the Free Writing Prospectus to investors pursuant
to
the terms of this Agreement. Notwithstanding
the foregoing, the Agent shall not be required to deliver any Free Writing
Prospectus to the extent that it does not contain substantive changes from
or
additions to any Free Writing Prospectus previously approved by the
Depositor.
(6)
[reserved]
(7)
None
of the information in the Free Writing Prospectuses may conflict with the
information contained in the Prospectus or the Registration
Statement.
(8)
The
Depositor shall not be obligated to file any Free Writing Prospectuses that
have
been determined to contain any material error or omission, unless the Depositor
is required to file the Free Writing Prospectus pursuant to Section 5.9 below.
In the event that the Agent becomes aware that, as of the date on which an
investor entered into an agreement to purchase any Certificates, any Free
Writing Prospectus prepared by or on behalf of the Agent 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
Free
Writing Prospectus, a “Defective Free Writing Prospectus”), the Agent shall
notify the Depositor thereof as soon as practical but in any event within one
business day after discovery.
(9)
If
the
Agent does not provide any Free Writing Prospectuses to the Depositor pursuant
to subsection (5) above, the Agent shall be deemed to have represented, as
of
the Closing Date, that
it did
not provide any prospective investors with any information in written or
electronic form in connection with the offering of the Certificates that is
required to be filed with the Commission by the Depositor as a Free Writing
Prospectus (other than the Definitive Free Writing Prospectus) in accordance
with the 1933 Act Regulations.
(10)
In
the
event of any delay in the delivery by the Agent to the Depositor of any Free
Writing Prospectuses
required
to be delivered in accordance with subsection (5) above, the Depositor shall
have the right to delay the release of the Prospectus to investors or to the
Agent, to delay the Closing Date and to take other appropriate actions in each
case as necessary in order to allow the Depositor to comply with its agreement
set forth in Section 5.9 to file the Free Writing Prospectuses by the time
specified therein.
(11)
The
Agent
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 Certificates.
In
addition, the Agent shall, for a period of at least three years after the date
hereof, maintain written and/or electronic records of any
Free
Writing Prospectus used to solicit offers to purchase Certificates to the extent
not filed with the Commission.
(12)
It
is
understood and agreed that all information provided by the Agent to or through
Bloomberg or Intex or similar entities for use by prospective investors, or
imbedded in any CDI file provided to prospective investors, to the extent
constituting a Free Writing Prospectus, shall be deemed for all purposes hereof
to be a Free Writing Prospectus not containing Issuer Information. In connection
therewith, the Agent agrees that it shall not provide any information
constituting Issuer Information through the foregoing media unless that
information is contained either in the Definitive Free Writing Prospectus or
in
a Free Writing Prospectus delivered in compliance with Section
4(d)(5).
(e) The
Agent
covenants with the Depositor that after the final Prospectus is available the
Agent shall not distribute any written information concerning the Certificates
to a prospective investor unless such information is preceded or accompanied
by
the final Prospectus. It
is
understood and agreed that the use of written information in accordance with
the
preceding sentence is not a Free Writing Prospectus and is not otherwise
restricted or governed in any way by this Agreement.
(f) The
Agent
shall file any Free Writing Prospectus that has been distributed by the Agent
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 Agent first provides this information to investors
and the date upon which the Depositor is required to file the Prospectus
Supplement with the Commission pursuant to Rule 424(b)(3) of the 1933 Act
Regulations; provided further, that the Depositor 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.
(g) The
Agent
further agrees that (i) if the Prospectus is not delivered with the confirmation
in reliance on Rule 172, every confirmation sent out will include 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 the Agent; (ii) if a paper copy of the Prospectus is requested
by a person who receives a confirmation, the Agent shall deliver a paper
copy of
such Prospectus; (iii) if an electronic copy of the Prospectus is delivered
by
the Agent for any purpose, such copy shall be the same electronic file
containing the Prospectus in the identical form transmitted electronically
to
the Agent by or on behalf of the Depositor specifically for use by the Agent
pursuant to this Section 4(g); for example, if the Prospectus is delivered
to
the Agent by or on behalf of the Depositor in a single electronic file in .pdf
format, then the Agent will deliver the electronic copy of the Prospectus in
the
same single electronic file in .pdf format. The
Agent
further agrees that (i) if it delivers to an investor the Prospectus in .pdf
format, upon the Agent’s receipt of a request from the investor within the
period for which delivery of the Prospectus is required, the Agent 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 Depositor any Free Writing
Prospectuses, or portions thereof, which the Depositor is required to file
with
the Commission in electronic format and will use reasonable efforts to provide
to the Depositor such Free Writing Prospectuses, or portions thereof, in either
Microsoft Word® or Microsoft Excel® format and not in a pdf, except to the
extent that the Depositor, in its sole discretion, waives such
requirements.
(h) You
further agree that on or prior to the sixth day after the Closing Date, you
shall provide the Depositor with such information as to matters of fact as
the
Depositor may reasonably request to enable it to comply with its tax reporting
requirements with respect to each class of Certificates to the extent such
information can in the good faith judgment of the Agent be determined by
it.
5. Agreements.
The
Depositor agrees with you that:
5.1 Before
amending or supplementing the Registration Statement or the Prospectus with
respect to the Certificates, the Depositor will furnish you with a copy of
each
such proposed amendment or supplement.
5.2 The
Depositor will cause the Prospectus 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.
5.3 If,
during the period commencing on the first date of the public offering of the
Certificates in which a Prospectus relating to the Certificates is required
to
be delivered under the Act, any event occurs as a result of which the Prospectus
as then amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend the Prospectus to comply
with the Act, the Depositor will promptly notify the Agent of such event and
will promptly prepare and file with the Commission, at its own expense, an
amendment or supplement which will correct such statement or omission or an
amendment which will effect such compliance. Neither the Agent’s consent to, nor
the Agent’s delivery of, any such amendment or supplement shall constitute a
waiver of any of the conditions set forth in Section 6.
5.4 The
Depositor 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, agent 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(g) in every
confirmation and will only deliver the prospectus to those investors that
request a paper copy thereof.
5.5 [reserved]
5.6 The
Depositor will endeavor to arrange for the qualification of the Certificates
for
sale under the laws of such jurisdictions as you may reasonably designate and
in
which the Depositor will make offers and sales to residents (except for any
jurisdiction as designated by the Depositor in which offers and sales of the
Certificates should not be made to non-institutional investors) and will
maintain such qualification in effect so long as required for the initial
distribution of the Certificates; provided, however, that the Depositor 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.
5.7 Notwithstanding
Section 9 of this Agreement, if the transactions contemplated by this Agreement
are consummated, the Depositor or PHH Mortgage will pay or cause to be paid
or
reimburse you for all expenses incident to the performance of the obligations
of
the Depositor and PHH Mortgage under this Agreement, for any reasonable expenses
(including reasonable fees and disbursements of counsel) reasonably incurred
by
you in connection with qualification of the Certificates for sale and
determination of their eligibility for investment under the laws of such
jurisdictions as you 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 Certificates, for expenses incurred in
printing and distributing the Prospectus (including any amendments and
supplements thereto), for fees and expenses of preparing, printing and
reproducing the Registration Statement, the Prospectus (and any amendment or
supplement thereto), the Pooling and Servicing Agreement, the Mortgage Loan
Purchase Agreement, the Certificates and the Private Certificates, for fees
and
expenses of the Trustee and the Master Servicer and their counsel, for the
fees
and expenses of the accountants to the Depositor and for fees and expenses
of
filing the Prospectus Supplement and any Free Writing Prospectuses with the
Commission. In addition, the Depositor or PHH Mortgage will pay to you the
placement fee previously agreed to by the Depositor and the Agent. Except as
herein provided, you shall be responsible for paying all costs and expenses
incurred by you, including the fees and disbursements of your counsel, in
connection with the purchase and sale of the Certificates.
5.8 If,
during the period after the Closing Date in which a prospectus relating to
the
Certificates is required to be delivered under the Act, the Depositor receives
notice that a stop order suspending the effectiveness of the Registration
Statement or preventing the offer and sale of the Certificates is in effect,
the
Depositor will advise you of the issuance of such stop order.
5.9 The
Depositor shall file any Free Writing Prospectus prepared by the Depositor
(including the Definitive Free Writing Prospectus), and any Issuer Information
contained in any Free Writing Prospectus provided to it by the Agent under
Section 4(d)(5), not later than the date of first use of the Free Writing
Prospectus, except that:
(a) As
to any
Free Writing Prospectus or portion thereof that contains only (A) a description
of the final terms of the Certificates after such terms have been established
for all classes of Certificates being publicly offered, may be filed by the
Depositor within two days of the later of the date such final terms have been
established for all classes of Certificates being publicly offered and the
date
of first use and (B) a description of the terms of the Certificates that does
not reflect the final terms after they have been established for all classes
of
all Certificates is not required to be filed; 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 Depositor
shall
file such Free Writing Prospectus or portion thereof within the later of two
business days after the Agent first provides this information to investors
and
the date upon which the Depositor is required to file the Prospectus Supplement
with the Commission pursuant to Rule 424(b)(3) of the Act.
provided
further, that prior to such use of any Free Writing Prospectuses by the
Depositor, the Agent must comply with its obligations pursuant to Section 4(d)
and that the Depositor 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.
5.10 If
the
Depositor or the Agent determines or becomes aware that any Written
Communication (including without limitation any Free Writing Prospectus) or
oral
statement 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 with any investor, when considered in conjunction with all
information conveyed at the time of Contract of Sale, either the Depositor
or
the Agent may prepare corrective information with notice to the other party,
and
the Agent shall deliver such information in a manner reasonably acceptable
to
the Agent and the Depositor, to any person with whom a Contract of Sale was
entered into, and such information 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
(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.
6. Conditions
to the Obligations of the Agent.
The
Agent’s obligation to solicit and receive offers to purchase the Certificates
shall be subject to the accuracy of the representations and warranties on the
part of the Depositor and PHH Mortgage herein, to the accuracy of the statements
of officers of the Depositor and PHH Mortgage made pursuant to the provisions
hereof, to the performance by the Depositor and PHH Mortgage of their
obligations hereunder and to the following additional conditions
precedent:
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 Depositor, threatened by the Commission; 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 Since
September 1, 2006, there shall have been no material adverse change (not in
the
ordinary course of business) in the condition of the Depositor or PHH Mortgage
and prior to the Closing Date there shall be no prospective change that would
have a material adverse effect (not in the ordinary course of business) in
the
condition of the Depositor or PHH Mortgage.
6.3 The
Depositor shall have delivered to you a certificate, dated the Closing Date,
of
the President, a Senior Vice President or a Vice President of the Depositor
to
the effect that the signer of such certificate has examined this Agreement,
the
Prospectus, the Pooling and Servicing 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 Depositor in this Agreement and in the
Pooling and Servicing Agreement are true and correct in all material
respects;
(b) the
Depositor has, in all material respects, complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied hereunder
or under the Pooling and Servicing Agreement at or prior to the Closing Date;
and
(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
by
the Commission.
6.4 PHH
Mortgage shall have delivered to you a certificate, dated the Closing Date,
of
the President, a Managing Director or a Director of PHH Mortgage to the effect
that the signer of such certificate has examined the Pooling and Servicing
Agreement and this Agreement and that, to the best of his or her knowledge
after
reasonable investigation, the representations and warranties of PHH Mortgage
contained in the Pooling and Servicing Agreement and in this Agreement are
true
and correct in all material respects.
6.5 You
shall
have received the opinions of Xxxxxxx Xxxxxxxx & Xxxx llp,
counsel
for the Depositor and the Master Servicer, dated the Closing Date and
substantially to the effect set forth in Exhibit A-1, A-2 and A-3.
6.6 You
shall
have received from Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the
Agent, an opinion dated the Closing Date in form and substance satisfactory
to
the Agent.
6.7 You
shall
have received from Deloitte & Touche LLP, certified public accountants, a
letter dated the date hereof and satisfactory in form and substance to the
Agent
and the Agent’s counsel, to the effect that they have performed certain
specified procedures, all of which have been agreed to by the Agent, 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”, “Pooling and Servicing Agreement”, “Description of the
Certificates” and “Yield on the Certificates”, and referenced under the heading
“Static Pool Information”, agrees with the records of the Depositor and PHH
Mortgage or any information provided to Deloitte & Touche LLP by or on
behalf of the Depositor excluding any questions of legal
interpretation.
6.8 The
Certificates shall have been rated “AAA” by Fitch, Inc. (“Fitch”).
6.9 You
shall
have received the opinion of Xxxxx, Xxxxxx & Xxxxxx, dated the Closing Date,
substantially to the effect set forth in Exhibit B.
6.10 You
shall
have received from Xxxxxxx Xxxxxxxx & Xxxx llp,
counsel
to the Depositor, reliance letters with respect to any opinions delivered to
Fitch.
6.11 The
Depositor shall have furnished to you such further information, certificates
and
documents as you may reasonably have requested, and all proceedings in
connection with the transactions contemplated by this Agreement and all
documents incident thereto shall be in all material respects satisfactory in
form and substance, in their reasonable judgment, to you and your
counsel.
The
Depositor will furnish you with conformed copies of the above opinions,
certificates, letters and documents as you reasonably request.
7. Indemnification
and Contribution.
7.1 The
Depositor and PHH Mortgage, jointly and severally, agree to indemnify and hold
harmless you and each person, if any, who controls you within the meaning of
either Section 15 of the Act or Section 20 of the Securities Exchange Act of
1934, from and against any and all losses, claims, damages and liabilities
(or
actions in respect thereof) that (i) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement for the registration of the Certificates 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 Depositor 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 not misleading, (ii) 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 any Issuer Information contained in
any
other Free Writing Prospectus, or any omission or alleged omission to state
therein a material fact necessary to make the statements therein, in light
of
the circumstances under which they were made, not misleading, or (iii) are
caused by any untrue statement of a material fact or alleged untrue statement
of
a material fact contained in any Free Writing Prospectus that was caused by
any
error in any Pool Information and will reimburse the Agent for any legal or
other expenses reasonably incurred by the Agent in connection with investigating
or defending any such loss, claim, damage, liability or action as such expenses
are incurred; provided, however, that the Depositor 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 based upon any information with respect to which
the Agent has agreed to indemnify the Depositor pursuant to Section
7.2.
7.2 You
agree
to indemnify and hold harmless the Depositor, PHH Mortgage, their respective
directors or officers and any person controlling the Depositor or PHH Mortgage
from and against any and all losses, claims, damages and liabilities (or actions
in respect thereof) that arise out of or are based upon (i) the Agent
Information and the Decrement/Yield Tables, (ii) any Agent Derived Information
prepared or used by the Agent, (iii) any Free Writing Prospectus prepared or
used by the Agent for which the conditions set forth in Section 4(d)(5) above
are not satisfied with respect to the prior approval by the Depositor, (iv)
any
portion of any Free Writing Prospectus (other than the Definitive Free Writing
Prospectus) prepared or used by the Agent not constituting Issuer Information
and (v) any liability directly resulting from the Agent’s failure to provide any
investor with the Definitive Free Writing Prospectus prior to that investor
entering into a Contract of Sale or failure to file any Free Writing Prospectus
required to be filed by the Agent in accordance with Section 4(f); provided,
however, that the indemnification set forth in this 7.2 shall not apply to
the
extent of any error in any Free Writing Prospectus that was caused by any error
in any Pool Information..
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 clause 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. 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 clause 7.1 and
by
the Depositor or PHH Mortgage, in the case of parties indemnified pursuant
to
clause 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, but if settled with such consent or if there 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.
7.4 If
the
indemnification provided for in this Section 7 is unavailable to an indemnified
party under clause 7.1 or 7.2 hereof or insufficient in respect of any losses,
claims, damages or liabilities referred to therein, then the 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 or liabilities, in such proportion as is appropriate to reflect not
only
the relative benefits received by the Depositor and PHH Mortgage on the one
hand
and the Agent on the other from the offering of the Certificates but also the
relative fault of the Depositor or PHH Mortgage on the one hand and of the
Agent, 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. The relative benefits received by the
Depositor and PHH Mortgage on the one hand and the Agent on the other shall
be
deemed to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Depositor bear to the placement
fee
received by the Agent. The relative fault of the Depositor and PHH Mortgage
on
the one hand and of the Agent 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 Depositor or by the Agent, and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. Notwithstanding the provisions of this clause 7.4,
the Agent shall not be required to contribute any amount in excess of the
placement fee received by the Agent in connection with the
Certificates.
7.5 The
Depositor, PHH Mortgage and the Agent 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 clause 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 except where the indemnified party is required to bear such
expenses pursuant to clause 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. 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 Depositor and PHH Mortgage 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 the Agent
or
on behalf of the Agent or any person controlling the Agent or by or on behalf
of
the Depositor and its respective directors or officers or any person controlling
the Depositor and (iii) acceptance of and payment for any of the
Certificates.
8. Termination.
This
Agreement shall be subject to termination by notice given to the Depositor,
(A)
if (i) trading in securities generally on the New York Stock Exchange shall
have
been suspended or materially limited or any setting of minimum prices for
trading on such exchange shall have been instituted, (ii) any banking moratorium
shall have been declared by either federal or New York authorities, or (iii)
there shall have occurred any material outbreak, escalation or declaration
of
hostilities or other calamity, emergency or crisis, the effect of which on
the
financial markets of the United States is such as to make it, in the judgment
of
the Agent, impracticable or inadvisable to proceed with completion of the public
offering of or the sale of and payment for the Certificates or (B) if the sale
of the Certificates provided for herein is not consummated because of any
failure or refusal on the part of the Depositor or PHH Mortgage to comply with
the terms or to fulfill any of the conditions of this Agreement, or if for
any
reason the Depositor or PHH Mortgage shall be unable to perform their respective
obligations under this Agreement. If you terminate this Agreement in accordance
with this Section 8, the Depositor or PHH Mortgage will reimburse you for all
reasonable out-of-pocket expenses (including reasonable fees and disbursements
of counsel) that shall have been reasonably incurred by the Agent in connection
with the proposed purchase and sale of the Certificates.
9. Certain
Representations and Indemnities to Survive.
The
respective agreements, representations, warranties, indemnities and other
statements of the Depositor, PHH Mortgage or the respective officers of the
Depositor or PHH Mortgage, and you 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 you or on your behalf or made
by
or on behalf of the Depositor or any of its officers, directors or controlling
persons, and will survive delivery of and payment for the
Certificates.
10. Notices.
All
communications hereunder will be in writing and effective only on receipt,
and,
if sent to the Agent will be mailed, delivered or telegraphed and confirmed
to
you at Xxxxxxx X. Xxxxx Securities, LLC, 00 Xxxx Xxxxxx, Xxxxxxxxx, XX 00000,
Attention: Xx. Xxxxxxx Xxxxxxx Xxxxx, Principal; if sent to the Depositor,
will
be mailed, delivered or telegraphed and confirmed to it at PHH Mortgage Capital
LLC, 0000 Xxxxxxxxxx Xxxx, Mail Stop LGL, Mt. Laurel, New Jersey 08054; or
if
sent to PHH Mortgage, will be mailed, delivered or telegraphed and confirmed
to
it at PHH Mortgage Corporation, 0000 Xxxxxxxxxx Xxxx, Xxxx Xxxx XXX, Xx. Laurel,
New Jersey 08054.
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.
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.
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 between the Depositor and you.
Very
truly yours,
PHH
MORTGAGE CAPITAL LLC
By:
/s/
Xxxxxxx Xxxxxxxxx
Name:
Xxxxxxx
X. Xxxxxxxxx
Title:
Senior
Vice President
PHH
MORTGAGE CORPORATION
By:
/s/
Xxxxxxx Xxxxxxxxx
Name:
Xxxxxxx
X. Xxxxxxxxx
Title:
Senior
Vice President
The
foregoing Agency Agreement
is
xxxxxx
confirmed and accepted as of
the
date
first above written.
XXXXXXX
X. XXXXX SECURITIES, LLC
By:
___/s/ Xxxxxxx X. Xxxxx_______
Name:
Xxxxxxx X. Xxxxx
Title:
EXHIBIT
A-1
CLOSING
OPINION OF XXXXXXX XXXXXXXX & XXXX LLP
(PLEASE
SEE TAB #25)
EXHIBIT
A-2
10B-5
LETTER OF XXXXXXX XXXXXXXX & XXXX LLP
(PLEASE
SEE TAB #26)
EXHIBIT
A-3
TAX
OPINION OF XXXXXXX XXXXXXXX & XXXX LLP
(PLEASE
SEE TAB #27)
EXHIBIT
B
TRUSTEE’S
COUNSEL OPINION
(PLEASE
SEE TAB #36)
EXHIBIT
C
AGENT
INFORMATION
EXHIBIT
D
FOOTNOTE
271 INFORMATION
[Excerpt
from Offering Reform adopting release-bold headings added for convenience of
reference]
In
the
case of asset-backed issuers 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) Issuer
computational material-to
the
extent that the information is provided by the issuer, 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.)
