OPTION ONE MORTGAGE ACCEPTANCE CORPORATION $1,709,793,000 (Approximate) Option One Mortgage Loan Trust 2007-1 Asset-Backed Certificates Series 2007-1 UNDERWRITING AGREEMENT
OPTION
ONE MORTGAGE ACCEPTANCE CORPORATION
$1,709,793,000
(Approximate)
Asset-Backed
Certificates
Series
2007-1
January
16, 2007
|
Xxxxxx
Brothers Inc.
000
Xxxxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
|
Xxxxxxx
Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated
4
World Financial Center
|
|
Banc
of America Securities LLC
000
Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000
|
Greenwich
Capital Markets, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
|
|
H&R
Block Financial Advisors Inc.
000
Xxxxxxxx Xxxxxx
Xxxxxxx,
Xxxxxxxx 00000
|
Ladies
and Gentlemen:
Option
One Mortgage Acceptance Corporation (the “Depositor”), a Delaware corporation,
has authorized the issuance and sale of Option One Mortgage Loan Trust, Series
2007-1, Class I-A-1 Certificates, Class I-A-2 Certificates, Class II-A-1
Certificates, Class II-A-2 Certificates, Class II-A-3 Certificates, Class II-A-4
Certificates, Class M-1 Certificates, Class M-2 Certificates, Class M-3
Certificates, Class M-4 Certificates, Class M-5 Certificates, Class M-6
Certificates, Class M-7 Certificates, Class M-8 Certificates and Class M-9
Certificates (collectively, the “Underwritten Certificates”). Also issued are
the Class M-10 Certificates, Class M-11 Certificates, Class C Certificates,
Class P Certificates, Class R Certificates and Class R-X Certificates
(collectively, the “Non-Offered Certificates”). The Underwritten Certificates
and the Non-Offered Certificates are referred to as the Certificates (the
“Certificates”).
Only
the
Underwritten Certificates are being purchased by the Underwriters named in
Schedule A hereto, and the Underwriters are purchasing, severally, only the
Underwritten Certificates set forth opposite their names in Schedule A, except
that the amounts purchased by the Underwriters may change in accordance with
Section 10 of this Agreement.
The
Certificates will be issued under a pooling and servicing agreement (the
“Pooling and Servicing Agreement”), dated as of January 1, 2007 among the
Depositor as depositor, Option One Mortgage Corporation, as servicer (in such
capacity, the “Servicer”) and Xxxxx Fargo Bank, N.A., as the Trustee (in such
capacity, the “Trustee”). Capitalized but undefined terms shall have the
meanings set forth in the Pooling and Servicing Agreement.
The
Certificates will evidence fractional undivided interests in the Trust (the
“Trust”) formed pursuant to the Pooling and Servicing Agreement. The assets of
the Trust will include, among other things, a pool of fixed-rate and
adjustable-rate mortgage loans (collectively, the “Mortgage Loans”), the Net WAC
Rate Carryover Reserve Account, the Swap Account and
Cap
Account (including any payments made under the Swap Administration Agreement
and
the Cap Allocation Agreement deposited in the Trust) and
such
amounts as may be held by the Trustee in any other accounts held by the Trustee
for the Trust. First and second deeds of trust or mortgages on one- to
four-family residential properties secure the Mortgage Loans. A form of the
Pooling and Servicing Agreement has been filed as an exhibit to the Registration
Statement.
The
Certificates are more fully described in a Registration Statement which the
Depositor has furnished to the Underwriters.
Pursuant
to the Mortgage Loan Purchase Agreement, dated January 16, 2007 (the “Mortgage
Loan Purchase Agreement”), among Option One Mortgage Corporation (“Option One”),
Option One Mortgage Capital Corporation, Option One Owner Trust 2001-1A, Option
One Owner Trust 2001-2, Option One Owner Trust 2002-3, Option One Owner Trust
2003-4, Option One Owner Trust 2003-5, Option One Owner Trust 2005-6, Option
One
Owner Trust 2005-7, Option One Owner Trust 2005-8 and Option One Owner Trust
2005-9 as sellers (and together with Option One and Option One Mortgage Capital
Corporation, the “Sellers”) and the Depositor, the Sellers will transfer to the
Depositor all of their right, title and interest in and to the scheduled
principal balances of the Mortgage Loans as of the Cut-off Date and interest
due
after the Cut-off Date and the collateral securing each Mortgage Loan. Pursuant
to the Pooling and Servicing Agreement, the Depositor will transfer to the
Trust
all of its right, title and interest in and to the scheduled principal balances
of the Mortgage Loans as of the Cut-off Date and interest due after the Cut-off
Date and the collateral securing each Mortgage Loan.
SECTION
1. Representations
and Warranties of the Depositor.
The
Depositor represents and warrants to, and agrees with the Underwriters that
as
of the date hereof and as of the Closing Date:
(a) A
Registration Statement on Form S-3 (No. 333-130870), has (i) been prepared
by
the Depositor in conformity with the requirements of the Securities Act of
1933,
as amended (the “Securities Act”) and the rules and regulations (the “Rules and
Regulations”) of the United States Securities and Exchange Commission (the
“Commission”) thereunder, (ii) been filed with the Commission under the
Securities Act and (iii) become effective and is still effective as of the
date
hereof under the Securities Act. Copies of such Registration Statement have
been
delivered by the Depositor to the Underwriters. As used in this Agreement,
“Effective Time” means the date and the time as of which such Registration
Statement, or the most recent post-effective amendment thereto, if any, was
declared effective by the Commission; “Effective Date” means the date of the
Effective Time; “Registration Statement” means such registration statement, at
the Effective Time, including any documents incorporated by reference therein
at
such time; “Base Prospectus” means such final prospectus dated April 3, 2006 and
“Prospectus Supplement” means the final prospectus supplement dated January 16,
2007 relating to the Underwritten Certificates, to be filed with the Commission
pursuant to paragraphs (2), (3) or (5) of Rule 424(b) of the Rules and
Regulations. “Prospectus” means the Base Prospectus together with the Prospectus
Supplement. The
Depositor further proposes to prepare, after the final terms of all classes
of
the Underwritten
Certificates
are established, a Free Writing Prospectus that contains substantially all
information that will appear in the Prospectus Supplement, to the extent that
such information is known at that time (such Free Writing Prospectus, together
with the Base Prospectus, the “Preliminary Prospectus”).
Reference made herein to the Prospectus shall be deemed to refer to and include
any documents incorporated by reference therein pursuant to Item 12 of Form
S-3
under the Securities Act, as of the date of the Prospectus and any reference
to
any amendment or supplement to the Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any document filed under the Securities
Exchange Act of 1934 (the “Exchange Act”) after the date of the Preliminary
Prospectus or the Prospectus, as applicable, and incorporated by reference
in
the Preliminary Prospectus or the Prospectus, as applicable, and any reference
to any amendment to the Registration Statement shall be deemed to include any
report of the Depositor filed with the Commission pursuant to Section 13(a)
or
15(d) of the Exchange Act after the Effective Time that is incorporated by
reference in the Registration Statement.
The
Commission has not issued any order preventing or suspending the use of the
Prospectus or the Preliminary Prospectus or the effectiveness of the
Registration Statement and no proceedings for such purpose are pending or,
to
the Depositor's knowledge, threatened by the Commission. There are no contracts
or documents of the Depositor which are required to be filed as exhibits to
the
Registration Statement pursuant to the Securities Act or the Rules and
Regulations which have not been so filed or incorporated by reference therein
on
or prior to the Effective Date of the Registration Statement other than such
documents or materials, if any, as any Underwriter delivers to the Depositor
pursuant to Section 5(b) hereof for filing on Form 8-K. The conditions for
use
of Form S-3, as set forth in the General Instructions thereto, have been
satisfied.
(b) The
Registration Statement, the Preliminary Prospectus and the Prospectus conform,
and any further amendments or supplements to the Registration Statement, the
Preliminary Prospectus or the Prospectus will conform, when they become
effective, are filed with the Commission or as of the date of the Contract
of
Sale, as the case may be, in all respects to the requirements of the Securities
Act and the Rules and Regulations. The Registration Statement, as of the
Effective Date thereof and of any amendment thereto, did not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading.
The
Preliminary Prospectus, as amended or supplemented as of its date or as of
the
date of the Contract of Sale, and the Prospectus as of its date, and as amended
or supplemented as of the Closing Date does not and will not contain any untrue
statement of a material fact or omit to state a material fact necessary in
order
to make the statements therein, in light of the circumstances under which they
were made, not misleading; provided that no representation or warranty is made
as to information contained in or omitted from the Registration Statement,
the
Preliminary Prospectus or the Prospectus in reliance upon and in conformity
with
written information furnished to the Depositor in writing by the Underwriters
expressly for use therein which shall be limited to the highlighted information
set forth on Exhibit A hereto (the “Underwriters' Information”) or any Derived
Information.
(c) The
documents incorporated by reference in the Preliminary Prospectus or the
Prospectus, as applicable, when they became effective, were filed with the
Commission or as of the date of the Contract of Sale, as the case may be,
conformed in all material respects to the requirements of the Securities Act
or
the Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder; and any further documents so filed and incorporated by reference
in
the Prospectus, when such documents become effective, are filed with the
Commission or as of the date of the Contract of Sale, as the case may be, will
conform in all material respects to the requirements of the Securities Act
or
the Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder.
(d) The
Depositor has been duly incorporated and is validly existing as a corporation
in
good standing under the laws of its jurisdiction of incorporation and is in
good
standing as a foreign corporation in each jurisdiction in which its ownership
or
lease of property or the conduct of its business so requires such standing.
The
Depositor has all power and authority necessary to own or hold its properties,
to conduct the business in which it is engaged and to enter into and perform
its
obligations under this Agreement, the Mortgage Loan Purchase Agreement and
the
Pooling and Servicing Agreement (the “Agreements”) and to cause the Certificates
to be issued.
(e) Except
as
disclosed in the Preliminary Prospectus and the Prospectus, there are no
actions, proceedings or investigations pending with respect to which the
Depositor has received service of process before or, to the best of the
Depositor’s knowledge, threatened by any court, administrative agency or other
tribunal to which the Depositor is a party or of which any of its properties
is
the subject (a) which if determined adversely to the Depositor would have a
material adverse effect on the business or financial condition of the Depositor,
(b) asserting the invalidity of any of the Agreements or the Certificates,
(c)
seeking to prevent the issuance of the Certificates or the consummation by
the
Depositor of any of the transactions contemplated by any of the Agreements
or
(d) which might materially and adversely affect the performance by the Depositor
of its obligations under, or the validity or enforceability of any of the
Agreements or the Certificates.
(f) This
Agreement has been, and the other Agreements when executed and delivered as
contemplated hereby and thereby will have been, duly authorized, executed and
delivered by the Depositor, and this Agreement constitutes, and the other
Agreements when executed and delivered as contemplated herein will constitute,
legal, valid and binding instruments enforceable against the Depositor in
accordance with their respective terms, subject as to enforceability to (x)
applicable bankruptcy, reorganization, insolvency, moratorium or other similar
laws affecting creditors' rights generally, (y) general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or at
law), and (z) with respect to rights of indemnity under any of the Agreements,
limitations of public policy under applicable securities laws.
(g) The
execution, delivery and performance of the Agreements by the Depositor and
the
consummation of the transactions contemplated hereby and thereby, and the
issuance and delivery of the Certificates do not and will not conflict with
or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Depositor is a party,
by
which the Depositor is bound or to which any of the properties or assets of
the
Depositor or any of its subsidiaries is subject, which breach or violation
would
have a material adverse effect on the business, operations or financial
condition of the Depositor or its ability to perform its obligations under
any
of the Agreements, nor will such actions result in any violation of the
provisions of the articles of incorporation or by-laws of the Depositor or
any
statute or any order, rule or regulation of any court or governmental agency
or
body having jurisdiction over the Depositor or any of its properties or assets,
which breach or violation would have a material adverse effect on the business,
operations or financial condition of the Depositor or its ability to perform
its
obligations under any of the Agreements.
(h) The
direction by the Depositor to the Trustee to execute, authenticate, issue and
deliver the Certificates has been duly authorized by the Depositor, and,
assuming the Trustee has been duly authorized to undertake such actions, when
executed, authenticated, issued and delivered by the Trustee, in accordance
with
the Pooling and Servicing Agreement, the Certificates will be validly issued
and
outstanding and the holders of the Certificates will be entitled to the rights
and benefits of the Certificates as provided by the Pooling and Servicing
Agreement.
(i) No
consent, approval, authorization, order, registration or qualification of or
with any court or governmental agency or body of the United States is required
for the issuance of the Certificates and the sale of the Underwritten
Certificates to the Underwriters, or the consummation by the Depositor of the
other transactions contemplated by the Agreements except such consents,
approvals, authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the purchase and
distribution of the Underwritten Certificates by the Underwriters or as have
been obtained.
(j) At
the
time of the execution and delivery of the Pooling and Servicing Agreement, the
Depositor will: (i) have equitable title to the interest in the Mortgage Loans
conveyed by the Sellers, free and clear of any lien, mortgage, pledge, charge,
encumbrance, adverse claim or other security interest (collectively, “Liens”);
(ii) not have assigned to any person (other than the Trustee) any of its right,
title or interest in the Mortgage Loans and (iii) have the power and authority
to sell its interest in the Mortgage Loans to the Trustee and to sell the
Underwritten Certificates to the Underwriters. Upon execution and delivery
of
the Pooling and Servicing Agreement by the Trustee, the Trustee will have
acquired beneficial ownership of all of the Depositor’s right, title and
interest in and to the Mortgage Loans. Upon delivery to the Underwriters of
the
Underwritten Certificates, the Underwriters will have good title to the
Underwritten Certificates free of any Liens.
(k) As
of the
Cut-off Date each of the Mortgage Loans will meet the eligibility criteria
described in the Preliminary Prospectus and the Prospectus and will conform
to
the descriptions thereof contained in the Preliminary Prospectus and the
Prospectus.
(l) Neither
the Depositor nor the Trust is an “investment company” within the meaning of
such term under the Investment Company Act of 1940, as amended (the “1940 Act”)
and the rules and regulations of the Commission thereunder.
(m) At
the
Closing Date, the Underwritten Certificates and the Pooling and Servicing
Agreement will conform in all material respects to the descriptions thereof
contained in the Preliminary Prospectus and the Prospectus.
(n) Any
taxes, fees and other governmental charges in connection with the execution,
delivery and issuance of the Agreements and the Certificates have been paid
or
will be paid at or prior to the Closing Date.
(o) Since
the
respective dates as of which information is given in the Preliminary Prospectus
and the Prospectus, there has not been any material adverse change in the
general affairs, management, financial condition, or results of operations
of
the Depositor or the Originator, otherwise than as set forth or contemplated
in
the Prospectus as supplemented or amended as of the Closing Date.
(p) As
of the
Effective Date and as of the date of the Contract of Sale, the Depositor is
not
and will not be as of the Closing Date, an “ineligible issuer” as defined in
Rule 405 under the Securities Act.
(q) Any
certificate signed by an officer of the Depositor and delivered to the
Underwriters or counsel for the Underwriters in connection with an offering
of
the Underwritten Certificates shall be deemed, and shall state that it is,
a
representation and warranty as to the matters covered thereby to each person
to
whom the representations and warranties in this Section 1 are made.
(r) As
of the
date of the Contract of Sale, each Issuer Free Writing Prospectus and the
Preliminary Prospectus, considered together, did not include any untrue
statement of a material fact or omission of any material fact necessary in
order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
SECTION
2. Purchase
and Sale.
The
several commitments of the Underwriters to purchase the Underwritten
Certificates pursuant to this Agreement shall be deemed to have been made on
the
basis of the representations and warranties herein contained and
shall
be subject to the terms and conditions herein set forth. The Depositor agrees
to
instruct the Trustee to issue the Certificates and agrees to sell to each
Underwriter, and each Underwriter agrees (except as provided in Sections 10
and
11 hereof) severally and not jointly to purchase from the Depositor, the
aggregate initial principal amounts or percentage interests of the Underwritten
Certificates of each Class, as set forth opposite such Underwriter's name on
Schedule A, at the purchase price or prices set forth on Schedule
A.
SECTION
3. Delivery
and Payment.
Delivery of and payment for the Underwritten Certificates shall be made at
the
offices of Xxxxxxx Xxxxxxxx & Xxxx
llp,
2 World
Financial Center, New York, New York 10281, or at such other place as shall
be
agreed upon by the Underwriters and the Depositor at 10:00 A.M. New York City
time on January 24, 2007 or at such other time or date as shall be agreed upon
in writing by the Underwriters and the Depositor (such date being referred
to as
the “Closing Date”). Payment shall be made to the Depositor by wire transfer of
same day funds payable to the account of the Depositor. Delivery of the
Underwritten Certificates shall be made to the Underwriters against payment
of
the purchase price thereof. The Underwritten Certificates so delivered will
be
initially represented by one or more certificates registered in the name of
Cede
& Co., the nominee of The Depository Trust Company (“DTC”). The interests of
the beneficial owners of the Underwritten Certificates will be represented
by
book entries on the records of DTC and participating members thereof. Definitive
Certificates will be available only under the limited circumstances specified
in
the Pooling and Servicing Agreement.
SECTION
4. Offering
by the Underwriters.
It is
understood that, subject to the terms and conditions hereof, the several
Underwriters propose to offer the Underwritten Certificates for sale to the
public as set forth in the Prospectus.
SECTION
5. Agreements.
(a) The
Depositor agrees as follows:
(i) To
prepare the Preliminary Prospectus and the Prospectus in a form approved by
the
Underwriters and to file such Preliminary Prospectus pursuant to Rule 433(d)
under the Securities Act and to file such Prospectus pursuant to Rule 424(b)
under the Securities Act not later than the Commission's close of business
on
the same day on which the Preliminary Prospectus was made available to the
Underwriters and not later than the close of business on the second Business
Day
following the availability of the Prospectus, to the Underwriters, as
applicable; to make no further amendment or any supplement to the Registration
Statement, to the Preliminary Prospectus or the Prospectus prior to the Closing
Date except as permitted herein; to advise the Underwriters, promptly after
it
receives notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective prior to the termination of the
offering of the Underwritten Certificates or any supplement to the Prospectus
or
any amended Prospectus has been filed and to furnish the Underwriters or their
counsel with copies thereof without charge; to file promptly all reports and
any
definitive proxy or information statements required to be filed by the Depositor
with the Commission pursuant to Section 13(a), 13(c), 14 or l5(d) of the
Exchange Act subsequent to the date of the Prospectus and, for so long as the
delivery of a prospectus is required in connection with the offering or sale
of
the Underwritten Certificates; to promptly advise the Underwriters of their
receipt of notice of the issuance by the Commission of any stop order or the
institution of or, to the knowledge of the Depositor, the threatening of any
proceeding for such purpose, or of: (i) any order preventing or suspending
the
use of the Preliminary Prospectus or the Prospectus; (ii) the suspension of
the
qualification of the Underwritten Certificates for offering or sale in any
jurisdiction; (iii) the initiation of or threat of any proceeding for any such
purpose or (iv) any request by the Commission for the amending or supplementing
of the Registration Statement, the Preliminary Prospectus or the Prospectus
or
for additional information. In the event of the issuance of any stop order
or of
any order preventing or suspending the use of the Preliminary Prospectus or
the
Prospectus or suspending any such qualification, the Depositor promptly shall
use its best efforts to obtain the withdrawal of such order by the
Commission.
(ii) To
furnish promptly to the Underwriters and to counsel for the Underwriters a
signed copy of the Registration Statement as originally filed with the
Commission, and of each amendment thereto filed with the Commission, including
all consents and exhibits filed therewith.
(iii) To
deliver promptly to the Underwriters without charge such number of the following
documents as the Underwriters shall reasonably request: (i) conformed copies
of
the Registration Statement as originally filed with the Commission and each
amendment thereto (in each case including exhibits); (ii) the Preliminary
Prospectus, the Prospectus and any amended or supplemented Preliminary
Prospectus or Prospectus and (iii) any document incorporated by reference in
the
Preliminary Prospectus or the Prospectus (including exhibits thereto). If the
delivery of a prospectus is required at any time prior to the expiration of
nine
months after the Closing Date in connection with the offering or sale of the
Underwritten Certificates, and if at such time any events shall have occurred
as
a result of which the Prospectus as then amended or supplemented would include
any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is delivered,
not
misleading, or, if for any other reason it shall be necessary during such same
period to amend or supplement the Prospectus or to file under the Exchange
Act
any document incorporated by reference in the Prospectus in order to comply
with
the Securities Act or the Exchange Act, the Depositor shall notify the
Underwriters and, upon any Underwriters' request, shall file such document
and
prepare and furnish without charge to the Underwriters and to any dealer in
securities as many copies as the Underwriters may from time to time reasonably
request of an amended Prospectus or a supplement to the Prospectus which
corrects such statement or omission or effects such compliance, and in case
the
Underwriters are required to deliver a Prospectus in connection with sales
of
any of the Underwritten Certificates at any time nine months or more after
the
Effective Time, upon the request of the Underwriters but at their expense,
the
Depositor shall prepare and deliver to the Underwriters as many copies as the
Underwriters may reasonably request of an amended or supplemented Prospectus
complying with Section 10(a)(3) of the Securities Act.
(iv) To
file
promptly with the Commission any amendment to the Registration Statement, the
Preliminary Prospectus or the Prospectus or any supplement to the Prospectus
that may, in the judgment of the Depositor or the Underwriters, be required
by
the Securities Act or requested by the Commission. Neither the Underwriters'
consent to nor their distribution of any amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section
6.
(v) To
furnish the Underwriters and counsel for the Underwriters, prior to filing
with
the Commission, and to obtain the consent of the Underwriters for the filing
of
the following documents relating to the Certificates: (i) any Post-Effective
Amendment to the Registration Statement or supplement to the Prospectus, or
document incorporated by reference in the Prospectus or (ii) the Preliminary
Prospectus and the Prospectus pursuant to Rule 424 of the Rules and
Regulations.
(vi) To
use
commercially reasonable efforts, in cooperation with the Underwriters, to
qualify the Underwritten Certificates for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States
or
elsewhere as the Underwriters may reasonably designate, and maintain or cause
to
be maintained such qualifications in effect for as long as may be required
for
the distribution of the Underwritten Certificates. The Depositor will file
or
cause the filing of such statements and reports as may be required by the laws
of each jurisdiction in which the Underwritten Certificates have been so
qualified; 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 which would subject it to general or unlimited service of
process in any jurisdiction where it is now so subject.
(vii) Unless
the Underwriters shall otherwise have given their written consent, no
collateralized mortgage obligations or other similar securities representing
interests in or secured by other mortgage-related assets originated or owned
by
the Originator or the Seller shall be publicly offered or sold, nor shall the
Originator or the Seller enter into any contractual arrangements that
contemplate the public offering or sale of such securities, until the earlier
to
occur of the termination of the syndicate or the Closing Date.
(viii) So
long
as the Underwritten Certificates shall be outstanding the Depositor shall cause
the Trustee, pursuant to the Pooling and Servicing Agreement, to deliver to
the
Underwriters as soon as such statements are furnished to the Trustee: (i) the
annual statement as to compliance delivered to the Trustee pursuant to Section
3.20 of the Pooling and Servicing Agreement; (ii) the Assessment of Compliance
and Attestation Report furnished to the Trustee pursuant to Section 3.21 of
the
Pooling and Servicing Agreement; (iii) the monthly servicing report furnished
to
the Trustee and (iv) the monthly reports to the Certificateholders pursuant
to
Section 4.03 of the Pooling and Servicing Agreement.
(ix) In
connection with any transaction by this Agreement, the Depositor and each of
its
affiliates maintain customary arm’s-length business relationships with the
Underwriters and each of their respective affiliates, and no fiduciary duty
on
the part of the Underwriters or any of their respective affiliates is thereby
or
hereby intended or created, and the express disclaimer of any such fiduciary
relationship on the part of the Underwriters and each of their respective
affiliates is hereby acknowledged and accepted by the Depositor and each of
its
affiliates.
(x) The
Depositor will approve and file or cause to be filed with the Commission such
Free Writing Prospectus that is either a Preliminary Prospectus, an Issuer
Free
Writing Prospectus (as defined in Section 5(c) hereof) or contains Issuer
Information as soon as reasonably practicable after the date of this Agreement,
but in any event, not later than required pursuant to Rules 426 or 433,
respectively, of the Securities Act.
(xi) The
Depositor shall not be required to file (A) any Free Writing Prospectus, if
the
information included therein is included or incorporated by reference in a
prospectus or Free Writing Prospectus previously filed with the Commission
that
relates to the offering of the Certificates, or (B) any Free Writing Prospectus
or portion thereof that contains a description of the Certificates or the
offering of the Certificates which does not reflect the final terms thereof
(so
long as such information does not contain any Issuer Information).
(b) Each
Underwriter severally represents, warrants, covenants and agrees with the
Depositor as to itself that:
(i) Prior
to
entering into any Contract of Sale, the Underwriter shall convey the Preliminary
Prospectus to each prospective investor. The Underwriter shall keep sufficient
records to document its conveyance of the Preliminary Prospectus to each
potential investor prior to the related Contract of Sale.
(ii) Unless
preceded or accompanied by a prospectus satisfying the requirements of Section
10(a) of the Securities Act, the Underwriter shall not convey or deliver any
written communication to any person in connection with the initial offering
of
the Certificates, unless such written communication (1) is made in reliance
on
Rule 134 under the Securities Act, (2) constitutes a prospectus satisfying
the
requirements of Rule 430B under the Securities Act or (3) is a Free Writing
Prospectus.
(iii) An
Underwriter may convey a Preliminary Term Sheet to a potential investor prior
to
entering into a Contract of Sale with such investor; provided, however, that
(x)
such Underwriter shall not enter into a Contract of Sale with such investor
unless the Underwriter has complied with paragraph (i) above prior to such
Contract of Sale, (y) such Underwriter shall deliver a copy of the proposed
Preliminary Term Sheet to the Depositor and its counsel prior to the anticipated
first use and shall not convey any such Preliminary Term Sheet to which the
Depositor or its counsel reasonably objects.
(iv) An
Underwriter may convey Computational Materials (x) to a potential investor
prior
to entering into a Contract of Sale with such investor; provided, however,
that
(A) such Underwriter shall not enter into a Contract of Sale with such investor
unless the Underwriter has complied with paragraph (i) above prior to such
Contract of Sale and (B) such Computational Materials shall not be disseminated
in a manner reasonably designed to lead to their broad unrestricted
dissemination; provided, however, that if such Computational Materials are
disseminated in a manner reasonably designed to lead to its broad unrestricted
dissemination, such Underwriter shall file with the Commission such
Computational Materials, and (y) to an investor after a Contract of Sale,
provided that the Underwriter has complied with paragraph (i) above in
connection with such Contract of Sale. The Underwriter shall keep sufficient
records of any conveyance of Computational Materials to potential or actual
investors and shall maintain such records as required by the Rules and
Regulations.
(v) If
an
Underwriter does not furnish a Free Writing Prospectus to the Depositor’s
counsel prior to the scheduled print date of the Prospectus Supplement, such
Underwriter will be deemed to have represented that it did not convey any Free
Writing Prospectus to any potential investor.
(vi) Each
Free
Writing Prospectus shall contain legends substantially similar to the
following:
The
depositor has filed a registration statement (including a prospectus) with
the
SEC for the offering to which this free writing prospectus 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 depositor and this offering. You may get these documents for free
by
visiting XXXXX on the SEC Web site at xxx.xxx.xxx.
Alternatively, the depositor, any underwriter or any dealer participating in
the
offering will arrange to send you the prospectus if you request it by calling
toll-free 0-000-000-0000.
This
free
writing prospectus does not contain all information that is required to be
included in the base prospectus and the prospectus supplement.
The
information in this free writing prospectus supersedes information contained
in
any prior similar free writing prospectus relating to these securities prior
to
the time of your commitment to purchase.
The
asset-backed securities referred to in this free writing prospectus are being
offered when, as and if issued. In particular, you are advised that asset-backed
securities, and the asset pools backing them, are subject to modification or
revision (including, among other things, the possibility that one or more
classes of securities may be split, combined or eliminated), at any time prior
to issuance or availability of a final prospectus. As a result, you may commit
to purchase securities that have characteristics that may change, and you are
advised that all or a portion of the securities may not be issued that have
the
characteristics described in this free writing prospectus. Our obligation to
sell securities to you is conditioned on the securities having the
characteristics described in this free writing prospectus. If that condition
is
not satisfied, we will notify you, and neither the issuer nor any underwriter
will have any obligation to you to deliver all or any portion of the securities
which you have committed to purchase, and there will be no liability between
us
as a consequence of the non-delivery.
This
free
writing prospectus is being delivered to you solely to provide you with
information about the offering of the asset-backed securities referred to in
this free writing prospectus and to solicit an indication of your interest
in
purchasing such securities, when, as and if issued. Any such indication of
interest will not constitute a contractual commitment by you to purchase any
of
the securities.
(vii) Any
Computational Materials shall include legends, in addition to those specified
in
paragraph (vi) above, substantially similar to the following:
The
information in this free writing prospectus may be based on preliminary
assumptions about the pool assets and the structure. Any such assumptions are
subject to change.
The
information in this free writing prospectus may reflect parameters, metrics
or
scenarios specifically requested by you. If so, prior to the time of your
commitment to purchase, you should request updated information based on any
parameters, metrics or scenarios specifically required by you.
Neither
the issuer of the securities nor any of its affiliates prepared, provided,
approved or verified any statistical or numerical information presented in
this
free writing prospectus, although that information may be based in part on
loan
level data provided by the issuer or its affiliates.
(viii) On
or
before the Closing Date, Xxxxxx
Brothers Inc.
shall
execute and deliver to Xxxxxxx Xxxxxxxx & Xxxx LLP a copy of an original
issue discount pricing letter, provided to Xxxxxx Brothers Inc. by Xxxxxxx
Xxxxxxxx & Xxxx LLP.
(ix) Each
Underwriter severally agrees to retain all Free Writing Prospectuses that it
has
used and that are not required to be filed pursuant to this Section 5 for a
period of three years following the initial bona fide offering of the Offered
Certificates.
(c) The
following terms shall have the meanings set forth below, unless the context
clearly indicates otherwise:
“Computational
Materials”: Any Free Writing Prospectus prepared by the Underwriter that
contains only (i) information specified in paragraph (5) of the definition
of
ABS Informational and Computational Materials in Item 1101(a) of Regulation
AB
or (ii) information that is not Issuer Information.
“Contract
of Sale”: The meaning set forth in Rule 159 under the Securities
Act.
“Derived
Information”: Such information, if any, in any Free Writing Prospectus prepared
by any Underwriter that is not contained in either (i) the Registration
Statement, the Base Prospectus, the Preliminary Prospectus or the Prospectus
or
amendments or supplements thereto, taking into account information incorporated
therein by reference (other than information incorporated by reference from
any)
or (ii) any Pool Information.
“Free
Writing Prospectus”: A “written communication” within the meaning of Rule 405
under the Securities Act that describes the Certificates and/or the Mortgage
Loans, including the Preliminary Prospectus.
“Issuer
Information”: Such
information as defined in Rule 433(h) under the Securities Act and
which
shall not include information that is merely based on or derived from such
information.
“Issuer
Free Writing Prospectus”: The meaning set forth in Rule 405 of the Securities
Act except that (i) Computational Materials shall not be an Issuer Free Writing
Prospectus; (ii) any Free Writing Prospectus or portion thereof prepared by
or
on behalf of an Underwriter that includes any Issuer Information that is not
approved by the Depositor for use therein shall not be an Issuer Free Writing
Prospectus and (iii) no Free Writing Prospectus shall be deemed to be prepared
by an Underwriter on behalf of the Depositor if such Free Writing Prospectus
is
not delivered to the Depositor prior to first use in accordance with Section
5(b)(vi) hereof.
“Preliminary
Term Sheet”: A Free Writing Prospectus that contains information described in
paragraphs (1) - (3) of the definition of ABS Informational and Computational
Materials in Item 1101(a) of Regulation AB but which does not include Derived
Information.
(d) (i)
In
the event that any Underwriter or the Depositor becomes aware that, as of the
time of the Contract of Sale, any Free Writing Prospectus prepared by or on
behalf of the Underwriter and delivered to a purchaser of an Underwritten
Certificate 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 the light of the circumstances under which they were made, not
misleading (such Free Writing Prospectus, a “Defective
Free Writing Prospectus”),
the
Underwriter or the Depositor shall notify the other parties to this Agreement
thereof within one business day after discovery.
(ii)
The
party responsible for the information to be corrected, if requested by the
Depositor or an Underwriter, as appropriate, shall prepare a Free Writing
Prospectus with Corrective Information that corrects the material misstatement
in or omission from the Defective Free Writing Prospectus (such corrected Free
Writing Prospectus, a “Corrected
Free Writing Prospectus”).
(iii)
The
Underwriters shall deliver the Corrected Free Writing Prospectus to each
purchaser of an Underwritten Certificate which received the Defective Free
Writing Prospectus prior to entering into an agreement to purchase any Offered
Certificates.
(iv)
The
Underwriters shall notify such purchaser in a prominent fashion that the prior
agreement to purchase Underwritten Certificates has been terminated, and of
such
purchaser’s rights as a result of termination of such agreement.
(v)
The
Underwriters shall provide such purchaser with an opportunity to affirmatively
agree to purchase such Underwritten Certificates on the terms described in
the
Corrected Free Writing Prospectus.
(e) Each
Underwriter covenants with the Depositor that after the final Prospectus is
available the Underwriter shall not distribute any written information
concerning the Underwritten Certificates to a prospective purchaser of
Underwritten Certificates unless such information is preceded or accompanied
by
the final Prospectus.
SECTION
6. Conditions
to the Underwriters' Obligation.
The
several obligations of the Underwriters hereunder to purchase the Underwritten
Certificates pursuant to this Agreement are subject to the following conditions
as of the Closing Date:
(a) Each
of
the obligations of the Depositor required to be performed by it on or prior
to
the Closing Date pursuant to the terms of the Agreements shall have been duly
performed and complied with and all of the representations and warranties of
the
Depositor under any of the Agreements shall be true and correct as of the
Closing Date and no event shall have occurred which, with notice or the passage
of time, would constitute a default under any of the Agreements, and the
Underwriters shall have received certificates to the effect of the foregoing,
each signed by an authorized officer of the Depositor.
(b) Prior
to
the Closing Date, (i) the Depositor shall have received confirmation of the
effectiveness of the Registration Statement and (ii) no stop order suspending
the effectiveness of the Registration Statement shall have been issued and
no
proceedings for that purpose shall have been instituted or, to the knowledge
of
the Depositor, shall be contemplated by the Commission. Any request of the
Commission for inclusion of additional information in the Registration Statement
or the Prospectus shall have been complied with.
(c) The
Mortgage Loans will be acceptable to Xxxxx’x Investors Service Inc. (“Moody’s”)
and Standard & Poor's Ratings Services (“S&P”), in their sole
discretion.
(d) The
Underwriters shall have received the following additional closing documents,
in
form and substance satisfactory to the Underwriters and their
counsel:
| (i) |
the
Agreements and all documents required thereunder, duly executed and
delivered by each of the parties thereto other than the Underwriters
and
their affiliates;
|
| (ii) |
an
officer's certificate of an officer of the Originator and an officer's
certificate of an officer of the Depositor, in each case dated as of
the
Closing Date and reasonably satisfactory in form and substance to the
Underwriters and counsel for the Underwriters with resolutions of the
applicable board of directors and a copy of the charter and by-laws
of the
Originator or the Depositor, as
applicable;
|
| (iii) |
an
officer's certificate of an officer of the Seller, dated as of the
Closing
Date and reasonably satisfactory in form and substance to the Underwriters
and counsel for the Underwriters, with a copy of the Seller's trust
agreement;
|
| (iv) |
an
opinion of in-house counsel to the Originator and the Depositor,
reasonably satisfactory in form and substance to the Underwriters and
counsel for the Underwriters, dated the Closing Date, as to various
matters;
|
| (v) |
an
opinion of Xxxxxxx Xxxxxxxx & Xxxx llp,
counsel to the Sellers, the Originator and the Depositor, dated the
Closing Date, reasonably satisfactory in form and substance to the
Underwriters and counsel for the Underwriters, as to various
matters;
|
| (vi) |
an
opinion of XxXxx Xxxxxx LLP, counsel to the Underwriters, dated the
Closing Date, reasonably satisfactory in form and substance to the
Underwriters as to various matters;
|
| (vii) |
such
opinions of Xxxxxxx Xxxxxxxx & Xxxx llp,
counsel to the Seller, the Originator and the Depositor, in forms
reasonably satisfactory to the Underwriters, their counsel and each
Rating
Agency as to such additional matters not opined to in the opinion
delivered pursuant to clause (v) above
as shall be required for the assignment of a rating to each Class of
Underwritten Certificates by each Rating Agency (as to each the “Required
Ratings”) as set forth in the Prospectus
Supplement;
|
| (viii) |
a
letter from each Rating Agency that it has assigned the applicable
Required Ratings;
|
| (ix) |
a
letter, dated the Closing Date, from each of Xxxxxxx Xxxxxxxx & Xxxx
LLP, counsel to the Depositor, and XxXxx Xxxxxx LLP, counsel to the
Underwriters, providing negative assurance with respect to the Preliminary
Prospectus as of its date and as of the date
hereof;
|
| (x) |
letters
dated on or before the date on which the Preliminary Prospectus is
dated
and conveyed, in form and substance acceptable to the Underwriters
and
their counsel and addressed to the Underwriters, prepared by KPMG LLP
(a)
regarding certain numerical information contained or incorporated by
reference in the Preliminary Prospectus and (b) relating to certain
agreed
upon procedures as requested by the Underwriters relating to the Mortgage
Loans;
|
| (xi) |
letters
dated on or before the date on which the Prospectus Supplement is dated
and printed, in form and substance acceptable to the Underwriters and
their counsel, prepared by KPMG LLP (a) regarding certain numerical
information contained or incorporated by reference in the Prospectus
Supplement and (b) relating to certain agreed upon procedures as requested
by the Underwriters relating to the Mortgage
Loans;
|
| (xii) |
an
opinion of counsel to the Trustee, dated the Closing Date, in form
and
substance reasonably satisfactory to the Underwriters, their counsel
and
each Rating Agency;
|
| (xiii) |
an
officer's certificate of an officer of the Trustee, dated as of the
Closing Date, reasonably satisfactory in form and substance to the
Underwriters and their counsel; and
|
| (xiv) |
the
swap documentation executed and delivered by the swap provider and
the
trustee.
|
(e) All
proceedings in connection with the transactions contemplated by this Agreement
and all documents incident hereto shall be reasonably satisfactory in form
and
substance to the Underwriters and their counsel.
(f) The
Originator and the Depositor shall have furnished the Underwriters with such
other certificates of its officers or others and such other documents or
opinions as the Underwriters or their counsel may reasonably
request.
(g) Subsequent
to the execution and delivery of this Agreement none of the following shall
have
occurred: (i) trading in securities generally on the New York Stock Exchange,
the American Stock Exchange or the over-the-counter market shall have been
suspended or minimum prices shall have been established on either of such
exchanges or such market by the Commission, by such exchange or by any other
regulatory body or governmental authority having jurisdiction; (ii) a banking
moratorium shall have been declared by Federal or New York state authorities;
(iii) the United States shall have become engaged in material hostilities,
there
shall have been an escalation of such hostilities involving the United States
or
there shall have been a declaration of war by the United States; (iv) a material
disruption in settlement or clearing operations shall occur; or (v) there shall
have occurred such a material adverse change in general economic, political
or
financial conditions (or the effect of international conditions on the financial
markets of the United States shall be such) which is material and adverse,
and
in the case of any of the events specified in clauses (i) through (v), either
individually or together with any other such event makes it in the judgment
of
the Underwriters, impractical to market the Underwritten
Certificates.
(h) There
shall not have occurred any development that has caused a material adverse
change in the financial condition, results of operations or business of the
Originator or the Depositor;
(i) The
Underwriters hereby authorize Xxxxxx
Brothers Inc.
to
execute each of (a) the letter to the Depositor concerning registration and
denomination instructions for the Certificates purchased by the Underwriters,
(b) the Cross Receipt relating to the Depositor's receipt of the proceeds from
the sale of the Certificates and (c) the original issue discount pricing
letter.
(j) If
any
condition, specified in this Section 6 shall have not been fulfilled when and
as
required to be fulfilled, this Agreement may be terminated by the Underwriters
by notice to the Depositor at any time at or prior to the Closing Date, and
such
termination shall be without liability of any party to any other party except
as
provided in Sections 7 and 8.
SECTION
7. Payment
of Expenses.
The
Depositor agrees to pay: (i) the costs incident to the authorization, issuance,
sale and delivery of the Certificates and any taxes payable in connection
therewith; (ii) the costs incident to the preparation, printing and filing
under
the Securities Act of the Registration Statement and any amendments and exhibits
thereto and any Issuer Free Writing Prospectus; (iii) the costs of distributing
the Registration Statement as originally filed and each amendment thereto and
any post-effective amendments thereof (including, in each case, exhibits),
the
Preliminary Prospectus, the Prospectus and any amendment or supplement to the
Prospectus or any document incorporated by reference therein and any Issuer
Free
Writing Prospectus, all as provided in this Agreement; (iv) the costs of
reproducing and distributing this Agreement; (v) any fees charged by securities
rating services for rating the Underwritten Certificates; (vi) the cost of
accountants' comfort letters relating to the Preliminary Prospectus and the
Prospectus and (vii) all other costs and expenses incidental to the performance
of the obligations of the Depositor and the Originator (including costs and
expenses of counsel to the Depositor and the Originator); provided that, except
as provided in this Section 7, the Underwriters shall pay their own costs and
expenses, including the costs and expenses of their counsel, any transfer taxes
on the Underwritten Certificates which they may sell and the expenses of
advertising any offering of the Underwritten Certificates made by the
Underwriters, and the Underwriters shall pay the cost of any accountants'
comfort letters relating to any Computational Materials (as defined
herein).
If
this
Agreement is terminated because of a breach of the Depositor of any covenant
or
agreement hereunder (other than the failure of the closing condition set forth
in Section 6(h) to be met), the Depositor shall cause the Underwriters to be
reimbursed for all reasonable out-of-pocket expenses, including fees and
disbursements of XxXxx Xxxxxx LLP, counsel for the Underwriters.
SECTION
8. Indemnification
and Contribution.
(a) The
Depositor indemnifies and holds harmless each Underwriter, each Underwriter's
respective officers and directors and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Securities Act or Section
20
of the Exchange Act, as follows:
| (i) |
against
any and all losses, claims, expenses, damages or liabilities, joint
or
several, to which such Underwriter, its officers, directors or such
controlling person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof including, but not limited to, any loss,
claim,
expense, damage or liability related to purchases and sales of the
Underwritten Certificates) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained
in
the Registration Statement, the Prospectus, the Preliminary Prospectus,
any other Issuer Free Writing Prospectus, any Issuer Information in
any
Free Writing Prospectus approved by the Depositor, or any static pool
information provided by or on behalf of the Depositor which is not
a part
of the Registration Statement or the Prospectus, or any amendment or
supplement thereto, or arise out of, or are based upon, the omission
or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements made therein not misleading;
and will reimburse each Underwriter and each such controlling person
for
any legal or other expenses reasonably incurred by such Underwriter
or
such controlling person 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 an untrue statement or omission, or
alleged
untrue statement or omission, made in any of such documents (x) in
reliance upon and in conformity with any Underwriters' Information
or (y)
any Derived Information, except in the case of this clause (y) to the
extent that any untrue statement or alleged untrue statement or omission
therein results (or is alleged to have resulted) from an error or material
omission in the information either in the Preliminary Prospectus or
the
Prospectus for which the Depositor is responsible or concerning the
characteristics of the Mortgage Loans furnished by the Originator to
the
Underwriters for use in the preparation of any Free Writing Prospectus;
provided, however, that no indemnity shall be provided for any error
that
was superseded or corrected by the delivery to the Underwriters of
corrected written or electronic information prior to the first Contract
of
Sale, or for which the Originator or the Depositor provided written
notice
of such error to the Underwriters prior to the first Contract of Sale
and
the Underwriters failed to correct such
error;
|
| (ii) |
against
any and all loss, liability, claim, damage and expense whatsoever,
to the
extent of the aggregate amount paid in settlement of any litigation,
or
investigation or proceeding by any governmental agency or body, commenced
or threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission,
if such settlement is effected with the written consent of the Depositor;
and
|
| (iii) |
against
any and all expense whatsoever (including the fees and disbursements
of
counsel chosen by any such Underwriter), reasonably incurred in
investigating, preparing or defending against any litigation, or
investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission,
to the extent that any such expense is not paid under clause (i) or
clause
(ii) above.
|
This
indemnity agreement will be in addition to any liability which the Depositor
may
otherwise have.
(b) Each
Underwriter, severally and not jointly, agrees to indemnify and hold harmless
each of the Depositor, each of its directors, each of its officers who have
signed the Registration Statement and each person, if any, who controls the
Depositor within the meaning of Section 15 of the Securities Act or Section
20
of the Exchange Act, against any and all losses, claims, expenses, damages
or
liabilities to which the Depositor or any such director, officer or controlling
person may become subject, under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in (i) Derived Information and (ii) the
Registration Statement, the Prospectus or any amendment or supplement thereto,
or arise out of, or are based upon, the omission or the alleged omission to
state therein a material fact required to be stated therein or necessary to
make
the statements made therein not misleading, but with respect to clause (b)(ii)
above, only to the extent that such untrue statement or alleged untrue statement
or omission or alleged omission was made in reliance upon and in conformity
with
the Underwriters' Information of such Underwriter; and will reimburse any legal
or other expenses reasonably incurred by the Depositor or any such director,
officer or controlling person in connection with investigating or defending
any
such loss, claim, damage, liability or action. This indemnity agreement will
be
in addition to any liability which such Underwriter may otherwise
have.
(c) Promptly
after receipt by an indemnified party under this Section 8 of notice of the
commencement of any action described therein, such indemnified party will,
if a
claim in respect thereof is to be made against the indemnifying party under
this
Section 8, notify the indemnifying party of the commencement thereof; but the
omission to so notify the indemnifying party will not relieve the indemnifying
party from any liability that it may have to any indemnified party otherwise
than under Section 8(a) or 8(b). In case any such action is brought against
any
indemnified party, and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein, and,
to
the extent that it may wish to do so, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel satisfactory
to
such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and, after notice
from
the indemnifying party to such indemnified party under this Section 8, such
indemnifying party shall not be liable for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation.
Any
indemnified party shall have the right to employ separate counsel in any such
action and to participate in the defense thereof, but the fees and expenses
of
such counsel shall be at the expense of such indemnified party unless: (i)
the
employment thereof has been specifically authorized by the indemnifying party
in
writing; (ii) such indemnified party shall have been advised by such counsel
that there may be one or more legal defenses available to it which are different
from or additional to those available to the indemnifying party and in the
reasonable judgment of such counsel it is advisable for such indemnified party
to employ separate counsel; (iii) a conflict or potential conflict exists (based
on advice of counsel to the indemnified party) between the indemnified party
and
the indemnifying party (in which case the indemnifying party will not have
the
right to direct the defense of such action on behalf of the indemnified party)
or (iv) the indemnifying party has failed to assume the defense of such action
and employ counsel reasonably satisfactory to the indemnified party, in which
case, if such indemnified party notifies the indemnifying party in writing
that
it elects to employ separate counsel at the expense of the indemnifying party,
the indemnifying party shall not have the right to assume the defense of such
action on behalf of such indemnified party, it being understood, however, the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to local counsel) at any time for all such indemnified parties, which
firm shall be designated in writing by the related Underwriter, if the
indemnified parties under this Section 8 consist of one Underwriter or any
of
its controlling persons, or by the related Underwriters, if the indemnified
parties under this Section 8 consist of more than one Underwriter or their
controlling persons, or the Depositor, if the indemnified parties under this
Section 8 consist of the Depositor or any of the Depositor's directors, officers
or controlling persons.
Each
indemnified party, as a condition of the indemnity agreements contained in
Section 8(a) and Section 8(b), shall use its good faith efforts to cooperate
with the indemnifying party in the defense of any such action or claim. No
indemnifying party shall be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a final
judgment for the plaintiff in any such action, the indemnifying party agrees
to
indemnify and hold harmless any indemnified party from and against any loss
or
liability (to the extent set forth in Section 8(a) or Section 8(b) as
applicable) by reason of such settlement or judgment.
Notwithstanding
the foregoing paragraph, if at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for fees
and
expenses of counsel, the indemnifying party agrees that it shall be liable
for
any settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement.
(d) If
the
indemnification provided for in Section 8(a) or 8(b) is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or
(b)
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages
or
liabilities referred to in subsection (a) or (b) above (i) in such proportion
as
is appropriate to reflect the relative benefits received by the Depositor on
the
one hand and the Underwriters on the other from the offering of the Underwritten
Certificates 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 Depositor on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Depositor on the one
hand
and an Underwriter 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 total underwriting discounts and commissions received
by such Underwriter. The relative fault 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 Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct
or
prevent such untrue statement or omission. The amount paid by an indemnified
party as a result of the losses, claims, damages or liabilities referred to
above in the first sentence of this subsection (d) shall be deemed to include
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any action or claim which is the
subject of this subsection (d). Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any amount in
excess of underwriting discounts and commissions received by such Underwriter.
No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations in this subsection (d) to contribute are several in proportion
to
their respective underwriting obligations and not joint.
SECTION
9. Representations,
Warranties and Agreements to Survive Delivery.
All
representations, warranties and agreements contained in this Agreement or
contained in certificates of officers of the Depositor or the Originator
submitted pursuant hereto shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Underwriters or
controlling persons thereof, or by or on behalf of the Depositor or the
Originator, and shall survive delivery of any Underwritten Certificates to
the
Underwriters.
SECTION
10. Default
by One or More of the Underwriters.
If one
or more of the Underwriters participating in the public offering of the
Underwritten Certificates shall fail at the Closing Date to purchase the
Underwritten Certificates which it is (or they are) obligated to purchase
hereunder (the “Defaulted Certificates”), then the non-defaulting Underwriters
shall have the right, within 24 hours thereafter, to make arrangements for
one
or more of the non-defaulting Underwriters, or any other underwriters, to
purchase all, but not less than all, of the Defaulted Certificates in such
amounts as may be agreed upon and upon the terms herein set forth. If, however,
the Underwriters have not completed such arrangements within such 24-hour
period, then
(a) if
the
aggregate principal amount of Defaulted Certificates does not exceed 10% of
the
aggregate principal amount of the Underwritten Certificates to be purchased
pursuant to this Agreement, the non-defaulting Underwriters named in this
Agreement shall be obligated to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder bear to
the
underwriting obligations of all such non-defaulting Underwriters,
or
(b) if
the
aggregate principal amount of Defaulted Certificates exceeds 10% of the
aggregate principal amount of the Underwritten Certificates to be purchased
pursuant to this Agreement, this Agreement shall terminate, without any
liability on the part of any non-defaulting Underwriters.
No
action
taken pursuant to this Section 10 shall relieve any defaulting Underwriter
from
the liability with respect to any default of such Underwriter under this
Agreement.
In
the
event of a default by any Underwriter as set forth in this Section 10, each
of
the Underwriters and the Depositor shall have the right to postpone the Closing
Date for a period not exceeding five Business Days in order that any required
changes in the Registration Statement or Prospectus or in any other documents
or
arrangements may be effected.
SECTION
11. Termination
of Agreement.
The
Underwriters may terminate this Agreement immediately upon notice to the
Depositor, at any time at or prior to the Closing Date if the events set forth
in Section 6(h) of this Agreement shall occur and be continuing, or if any
other
closing condition set forth in Section 6 shall not have been fulfilled when
required to be fulfilled. In the event of any such termination, the provisions
of Section 7, Section 8, Section 9, Section 14, Section 16 and Section 19 shall
remain in effect.
SECTION
12. Notices.
All
statements, requests, notices and agreements hereunder shall be in writing,
and:
(a) if
to the
Underwriters, shall be delivered or sent to each of the following:
|
(1)
|
Xxxxxx
Brothers Inc., 740 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Legal;
|
|
(2)
|
|
(3)
|
Banc
of America Securities LLC, 210 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000, Attention: Xxxxx Xxxxxxxxx, with a copy to Xxxxxxxxxxx
X.
Xxxxxxx;
|
|
(4)
|
Greenwich
Capital Markets, Inc., 600 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx
00000,
Facsimile (000) 000-0000, Attention:
Legal;
|
|
(5)
|
H&R
Block Financial Advisors Inc., 710 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000;
|
(b) if
to the
Depositor, shall be delivered or sent by mail, telex or facsimile transmission
to care of Option One Mortgage Acceptance Corporation, 3 Xxx Xxxx, Xxxxxx,
Xxxxxxxxxx 00000, Facsimile (000) 000-0000, Attention: Xxxxxxx X. X'Xxxxx;
and
(c) if
to the
Originator, shall be delivered or sent by mail, telex or facsimile transmission
to care of Option One Mortgage Corporation, 3 Xxx Xxxx, Xxxxxx, Xxxxxxxxxx
00000, Facsimile (000) 000-0000, Attention: Xxxxxxx X. X'Xxxxx.
SECTION
13. Persons
Entitled to the Benefit of this Agreement.
This
Agreement shall inure to the benefit of and be binding upon the Underwriters,
the Originator and the Depositor, and their respective successors. This
Agreement and the terms and provisions hereof are for the sole benefit of only
those persons, except that the representations, warranties, indemnities and
agreements contained in this Agreement shall also be deemed to be for the
benefit of the person or persons, if any, who control any of the Underwriters
within the meaning of Section 15 of the Securities Act, and for the benefit
of
each Underwriter's respective officers and directors and for the benefit of
directors of the Depositor, officers of the Depositor who have signed the
Registration Statement and any person controlling the Depositor within the
meaning of Section 15 of the Securities Act. Nothing in this Agreement is
intended or shall be construed to give any person, other than the persons
referred to in this Section 13, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained
herein.
SECTION
14. Survival.
The
respective indemnities, representations, warranties and agreements of the
Depositor, the Originator and the Underwriters contained in this Agreement,
or
made by or on behalf of them, respectively, pursuant to this Agreement, shall
survive the delivery of and payment for the Underwritten Certificates and shall
remain in full force and effect, regardless of any investigation made by or
on
behalf of any of them or any person controlling any of them.
SECTION
15. Definition
of the Term “Business Day”.
For
purposes of this Agreement, “Business Day” means any day on which the New York
Stock Exchange, Inc. is open for trading.
SECTION
16. Governing
Law: Submission to Jurisdiction; Waiver of Jury Trial.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York without giving effect to the principles of conflicts of law
thereof. The parties hereto hereby submit to the jurisdiction of the United
States District Court for the Southern District of New York and any court in
the
State of New York located in the City and County of New York, and appellate
court from any thereof, in any action, suit or proceeding brought against it
or
in connection with this Agreement or any of the related documents or the
transactions contemplated hereunder or for recognition or enforcement of any
judgment, and the parties hereto hereby agree that all claims in respect of
any
such action or proceeding may be heard or determined in New York State court
or,
to the extent permitted by law, in such federal court. The parties hereto hereby
irrevocably waive, to the fullest extent permitted by law, any and all rights
to
trial by jury in any legal proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby.
SECTION
17. Counterparts.
This
Agreement may be executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
SECTION
18. Headings.
The
headings herein are inserted for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this
Agreement.
SECTION
19. Obligations
of the Originator.
The
Originator agrees with the Underwriters, for the sole and exclusive benefit
of
each such Underwriter, each such Underwriter's officers and directors and each
person controlling such Underwriter within the meaning of the Securities Act,
and not for the benefit of any assignee thereof or any other person or persons
dealing with such Underwriter as follows: in consideration of and as an
inducement to their agreement to purchase the Underwritten Certificates from
the
Depositor, to indemnify and hold harmless each Underwriter against any failure
by the Depositor to perform its obligations to the Underwriters hereunder,
including, without limitation, any failure by the Depositor to honor any
obligation to any Underwriter pursuant to Sections 8 and 14 (with respect to
the
survival of indemnities) hereof. In the case of any claim against the Originator
by any Underwriter, any officer or director of any Underwriter or any person
controlling any Underwriter, it shall not be necessary for such claimant to
first pursue any remedy from or exhaust any procedures against the
Depositor.
If
the
foregoing correctly sets forth the agreement among the Depositor and the
Underwriters, please indicate your acceptance in the space provided for the
purpose below.
Very
truly yours,
OPTION ONE MORTGAGE
ACCEPTANCE CORPORATION
By:
/s/
Xxxxxxx X.
Xxxxxx
Name:
Xxxxxxx
X. Xxxxxx
Title:
Vice President
OPTION ONE MORTGAGE
CORPORATION
By:
/s/
Xxxxxxx X.
Xxxxxx
Name:
Xxxxxxx
X. Xxxxxx
Title:
Vice President
CONFIRMED
AND ACCEPTED, as of the date first above written:
XXXXXX
BROTHERS INC.
By:
/s/
Xxxxx Xxxxxxxxxxx
Name:
Xxxxx Xxxxxxxxxxx
Title:
Managing Director
XXXXXXX
XXXXX, XXXXXX,
XXXXXX
& XXXXX INCORPORATED
By:
/s/
Xxx
Xxxxxxx
Name:
Xxx
Xxxxxxx
Title:
Authorized Signatory
BANC
OF
AMERICA SECURITIES LLC
By:
/s/
Xxxx
Xxxxxx
Name:
Xxxx Xxxxxx
Title:
Principal
GREENWICH
CAPITAL MARKETS, INC.
By:
/s/
Xxx
Xxx
Name:
Xxx
Xxx
Title:
Vice President
H&R
BLOCK FINANCIAL ADVISORS, INC.
By:
/s/
Xxx X. XxXxxxx
Name:
Xxx
X. XxXxxxx
Title:
Vice President of Operations
SCHEDULE
A
|
Underwriters
|
Principal
Amount
|
Proceeds
to the Depositor
|
|
Xxxxxx
Brothers Inc.
|
||
|
Class
I-A-1
|
$103,344,000.00
|
99.85000%
|
|
Class
I-A-2
|
$103,843,600.00
|
99.85000%
|
|
Class
II-A-1
|
$163,738,000.00
|
99.85000%
|
|
Class
II-A-2
|
$105,544,400.00
|
99.85000%
|
|
Class
II-A-3
|
$56,887,200.00
|
99.85000%
|
|
Class
II-A-4
|
$21,469,200.00
|
99.85000%
|
|
Class
M-1
|
$30,990,000.00
|
99.85000%
|
|
Class
M-2
|
$21,372,400.00
|
99.85000%
|
|
Class
M-3
|
$13,892,000.00
|
99.85000%
|
|
Class
M-4
|
$12,467,600.00
|
99.85000%
|
|
Class
M-5
|
$11,754,800.00
|
99.85000%
|
|
Class
M-6
|
$11,042,400.00
|
99.85000%
|
|
Class
M-7
|
$9,617,600.00
|
99.85000%
|
|
Class
M-8
|
$8,192,800.00
|
99.85000%
|
|
Class
M-9
|
$9,261,200.00
|
98.11769%
|
|
Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
|
||
|
Class
I-A-1
|
$103,344,000.00
|
99.85000%
|
|
Class
I-A-2
|
$103,843,600.00
|
99.85000%
|
|
Class
II-A-1
|
$163,738,000.00
|
99.85000%
|
|
Class
II-A-2
|
$105,544,400.00
|
99.85000%
|
|
Class
II-A-3
|
$56,887,200.00
|
99.85000%
|
|
Class
II-A-4
|
$21,469,200.00
|
99.85000%
|
|
Class
M-1
|
$30,990,000.00
|
99.85000%
|
|
Class
M-2
|
$21,372,400.00
|
99.85000%
|
|
Class
M-3
|
$13,892,000.00
|
99.85000%
|
|
Class
M-4
|
$12,467,600.00
|
99.85000%
|
|
Class
M-5
|
$11,754,800.00
|
99.85000%
|
|
Class
M-6
|
$11,042,400.00
|
99.85000%
|
|
Class
M-7
|
$9,617,600.00
|
99.85000%
|
|
Class
M-8
|
$8,192,800.00
|
99.85000%
|
|
Class
M-9
|
$9,261,200.00
|
98.11769%
|
|
Banc
of America Securities LLC
|
||
|
Class
I-A-1
|
$25,961,000.00
|
99.85000%
|
|
Class
I-A-2
|
$25,960,900.00
|
99.85000%
|
|
Class
II-A-1
|
$40,934,500.00
|
99.85000%
|
|
Class
II-A-2
|
$26,386,100.00
|
99.85000%
|
|
Class
II-A-3
|
$14,221,800.00
|
99.85000%
|
|
Class
II-A-4
|
$5,367,300.00
|
99.85000%
|
|
Class
M-1
|
$7,747,500.00
|
99.85000%
|
|
Class
M-2
|
$5,343,100.00
|
99.85000%
|
|
Class
M-3
|
$3,473,000.00
|
99.85000%
|
|
Class
M-4
|
$3,116,900.00
|
99.85000%
|
|
Class
M-5
|
$2,938,700.00
|
99.85000%
|
|
Class
M-6
|
$2,760,600.00
|
99.85000%
|
|
Class
M-7
|
$2,404,400.00
|
99.85000%
|
|
Class
M-8
|
$2,048,200.00
|
99.85000%
|
|
Class
M-9
|
$2,315,300.00
|
98.11769%
|
|
Greenwich
Capital Markets, Inc.
|
||
|
Class
I-A-1
|
$25,961,000.00
|
99.85000%
|
|
Class
I-A-2
|
$25,960,900.00
|
99.85000%
|
|
Class
II-A-1
|
$40,934,500.00
|
99.85000%
|
|
Class
II-A-2
|
$26,386,100.00
|
99.85000%
|
|
Class
II-A-3
|
$14,221,800.00
|
99.85000%
|
|
Class
II-A-4
|
$5,367,300.00
|
99.85000%
|
|
Class
M-1
|
$7,747,500.00
|
99.85000%
|
|
Class
M-2
|
$5,343,100.00
|
99.85000%
|
|
Class
M-3
|
$3,473,000.00
|
99.85000%
|
|
Class
M-4
|
$3,116,900.00
|
99.85000%
|
|
Class
M-5
|
$2,938,700.00
|
99.85000%
|
|
Class
M-6
|
$2,760,600.00
|
99.85000%
|
|
Class
M-7
|
$2,404,400.00
|
99.85000%
|
|
Class
M-8
|
$2,048,200.00
|
99.85000%
|
|
Class
M-9
|
$2,315,300.00
|
98.11769%
|
|
H&R
Block Financial Advisors, Inc.
|
||
|
Class
I-A-1
|
$1,000,000.00
|
99.85000%
|
|
Class
I-A-2
|
$0.00
|
99.85000%
|
|
Class
II-A-1
|
$0.00
|
99.85000%
|
|
Class
II-A-2
|
$0.00
|
99.85000%
|
|
Class
II-A-3
|
$0.00
|
99.85000%
|
|
Class
II-A-4
|
$0.00
|
99.85000%
|
|
Class
M-1
|
$0.00
|
99.85000%
|
|
Class
M-2
|
$0.00
|
99.85000%
|
|
Class
M-3
|
$0.00
|
99.85000%
|
|
Class
M-4
|
$0.00
|
99.85000%
|
|
Class
M-5
|
$0.00
|
99.85000%
|
|
Class
M-6
|
$0.00
|
99.85000%
|
|
Class
M-7
|
$0.00
|
99.85000%
|
|
Class
M-8
|
$0.00
|
99.85000%
|
|
Class
M-9
|
$0.00
|
98.11769%
|
EXHIBIT
A
METHOD
OF
DISTRIBUTION
Subject
to the terms and conditions set forth in the underwriting agreement, dated
January 16, 2007 (the “Underwriting Agreement”), among the Underwriters named
below, the Originator and the Depositor, the Depositor has agreed to sell to
the
Underwriters, and each Underwriter has severally agreed to purchase from the
Depositor, the principal amount of the Offered Certificates (the “Underwritten
Certificates”) set forth opposite its respective name.
|
Underwriters
|
Original
Certificate Principal Balance of the Class I-A-1 Certificates
($)
|
Original
Certificate Principal Balance of the Class I-A-2 Certificates
($)
|
Original
Certificate Principal Balance of the Class II-A-1 Certificates
($)
|
Original
Certificate
Principal
Balance of the Class II-A-2 Certificates ($)
|
Original
Certificate
Principal
Balance of the Class II-A-3 Certificates ($)
|
|||||||||||
|
Xxxxxx
Brothers Inc.
|
103,344,000.00
|
103,843,600.00
|
163,738,000.00
|
105,544,400.00
|
56,887,200.00
|
|||||||||||
|
Xxxxxxx
Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated
|
103,344,000.00
|
103,843,600.00
|
163,738,000.00
|
105,544,400.00
|
56,887,200.00
|
|||||||||||
|
Banc
of America Securities LLC
|
25,961,000.00
|
25,960,900.00
|
40,934,500.00
|
26,386,100.00
|
14,221,800.00
|
|||||||||||
|
Greenwich
Capital Markets, Inc.
|
25,961,000.00
|
25,960,900.00
|
40,934,500.00
|
26,386,100.00
|
14,221,800.00
|
|||||||||||
|
H&R
Block Financial Advisors, Inc.
|
1,000,000.00
|
-
|
-
|
-
|
-
|
|||||||||||
|
Underwriters
|
Original
Certificate Principal Balance of the Class II-A-4 Certificates
($)
|
Original
Certificate Principal Balance of the Class M-1 Certificates
($)
|
Original
Certificate Principal Balance of the Class M-2 Certificates
($)
|
Original
Certificate Principal Balance of the Class M-3 Certificates
($)
|
Original
Certificate Principal Balance of the Class M-4 Certificates
($)
|
|||||||||||
|
Xxxxxx
Brothers Inc.
|
21,469,200.00
|
30,990,000.00
|
21,372,400.00
|
13,892,000.00
|
12,467,600.00
|
|||||||||||
|
Xxxxxxx
Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated
|
21,469,200.00
|
30,990,000.00
|
21,372,400.00
|
13,892,000.00
|
12,467,600.00
|
|||||||||||
|
Banc
of America Securities LLC
|
5,367,300.00
|
7,747,500.00
|
5,343,100.00
|
3,473,000.00
|
3,116,900.00
|
|||||||||||
|
Greenwich
Capital Markets, Inc.
|
5,367,300.00
|
7,747,500.00
|
5,343,100.00
|
3,473,000.00
|
3,116,900.00
|
|||||||||||
|
H&R
Block Financial Advisors, Inc.
|
-
|
-
|
-
|
-
|
-
|
|||||||||||
|
Underwriters
|
Original
Certificate Principal Balance of the Class M-5 Certificates
($)
|
Original
Certificate Principal Balance of the Class M-6 Certificates
($)
|
Original
Certificate Principal Balance of the Class M-7 Certificates
($)
|
Original
Certificate Principal Balance of the Class M-8 Certificates
($)
|
Original
Certificate Principal Balance of the Class M-9 Certificates
($)
|
|||||||||||
|
Xxxxxx
Brothers Inc.
|
11,754,800.00
|
11,042,400.00
|
9,617,600.00
|
8,192,800.00
|
9,261,200.00
|
|||||||||||
|
Xxxxxxx
Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated
|
11,754,800.00
|
11,042,400.00
|
9,617,600.00
|
8,192,800.00
|
9,261,200.00
|
|||||||||||
|
Banc
of America Securities LLC
|
2,938,700.00
|
2,760,600.00
|
2,404,400.00
|
2,048,200.00
|
2,315,300.00
|
|||||||||||
|
Greenwich
Capital Markets, Inc.
|
2,938,700.00
|
2,760,600.00
|
2,404,400.00
|
2,048,200.00
|
2,315,300.00
|
|||||||||||
|
H&R
Block Financial Advisors, Inc.
|
-
|
-
|
-
|
-
|
-
|
|||||||||||
The
Depositor has been advised by each Underwriter that it proposes initially to
offer the Underwritten Certificates of each class purchased by it to the public
in Europe and the United States at the offering price set forth herein and
to
certain dealers at such price less a selling concession, not in excess of the
percentage set forth in the table below of the Certificate Principal Balance
of
the related class of Underwritten Certificates. The Underwriters may allow
and
such dealers may reallow a reallowance discount, not in excess of the percentage
set forth in the table below of the Certificate Principal Balance of the related
class of Underwritten Certificates, to certain other dealers. After the initial
public offering, the public offering price, such concessions and such discounts
may be changed.
|
Class
of Certificates
|
Selling
Concession
|
Reallowance
Discount
|
|
Class
I-A-1
|
0.09000%
|
0.06000%
|
|
Class
I-A-2
|
0.09000%
|
0.06000%
|
|
Class
II-A-1
|
0.09000%
|
0.06000%
|
|
Class
II-A-2
|
0.09000%
|
0.06000%
|
|
Class
II-A-3
|
0.09000%
|
0.06000%
|
|
Class
II-A-4
|
0.09000%
|
0.06000%
|
|
Class
M-1
|
0.09000%
|
0.06000%
|
|
Class
M-2
|
0.09000%
|
0.06000%
|
|
Class
M-3
|
0.09000%
|
0.06000%
|
|
Class
M-4
|
0.09000%
|
0.06000%
|
|
Class
M-5
|
0.09000%
|
0.06000%
|
|
Class
M-6
|
0.09000%
|
0.06000%
|
|
Class
M-7
|
0.09000%
|
0.06000%
|
|
Class
M-8
|
0.09000%
|
0.06000%
|
|
Class
M-9
|
0.09000%
|
0.06000%
|
Until
the
distribution of the Underwritten Certificates is completed, rules of the SEC
may
limit the ability of the Underwriters and certain selling group members to
bid
for and purchase the Underwritten Certificates. As an exception to these rules,
the Underwriters are permitted to engage in certain transactions that stabilize
the price of the Underwritten Certificates. Such transactions consist of bids
or
purchases for the purpose of pegging, fixing or maintaining the price of the
Underwritten Certificates.
In
general, purchases of a security for the purpose of stabilization or to reduce
a
short position could cause the price of the security to be higher than it might
be in the absence of such purchases.
Neither
the Depositor nor any of the Underwriters makes any representation or prediction
as to the direction or magnitude of any effect that the transactions described
above may have on the prices of the Underwritten Certificates. In addition,
neither the Depositor nor any of the Underwriters makes any representation
that
the Underwriters will engage in such transactions or that such transactions,
once commenced, will not be discontinued without notice.
The
Depositor has been advised by each Underwriter, other than H&R Block
Financial Advisors Inc., that such Underwriter intends to make a market in
the
Underwritten Certificates purchased by it, but no Underwriter has any obligation
to do so.
There
can be no assurance that a secondary market for any of the Underwritten
Certificates will develop or, if it does develop, that it will continue. H&R
Block Financial Advisors Inc. does not intend to make a secondary market in
any
class of the Offered Certificates.
The
Depositor has agreed to indemnify the Underwriters against, or make
contributions to the Underwriters with respect to, certain liabilities,
including liabilities under the Act.
The
Underwriters or their affiliates have ongoing banking relationships with
affiliates of the Depositor and a portion of the proceeds received from the
sale
of the Offered Certificate will be used by the Depositor to satisfy obligations
under financing facilities in place with affiliates of the Underwriters with
respect to some of the Mortgage Loans.
Xxxxxx
Brothers Inc. is an affiliate of the Swap Provider.
