FINANCIAL ASSET SECURITIES CORP. Soundview Home Loan Trust 2006-OPT2 Mortgage Loan Pass-Through Certificates, Series 2006-OPT2 UNDERWRITING AGREEMENT
FINANCIAL
ASSET SECURITIES CORP.
Mortgage
Loan Pass-Through Certificates, Series 2006-OPT2
March
14,
2006
Greenwich
Capital Markets, Inc.
000
Xxxxxxxxx Xxxx
Greenwich,
Connecticut 06830
Ladies
and Gentlemen:
Financial
Asset Securities Corp., a Delaware corporation (the “Company”),
proposes to sell, and Greenwich Capital Markets, Inc. (“GCM”),
Xxxxxx Xxxxxx & Company, Inc. and Xxxxxxx X’Xxxxx & Partners, L.P.
(collectively the “Underwriters”)
propose to purchase, the aggregate principal amount (or notional amount, as
applicable) of the Soundview Home Loan Trust 2006-OPT2 Mortgage Loan
Pass-Through Certificates, Class A-1, Class A-2, Class A-3, Class A-4, Class
M-1, Class M-2, Class M-3, Class
M-4,
Class
M-5, Class M-6, Class M-7, and Class M-8 Certificates (the “Offered
Certificates”)
set
forth opposite its name on Schedule I hereto. Only the Offered Certificates
are
being purchased by the Underwriters hereunder. The Offered Certificates,
together with the Class M-9, Class M-10, Class M-11, Class C, Class P, Class
R
and Class R-X Certificates (collectively, the “Certificates”),
will
be issued by the Company pursuant to a Pooling Agreement (the “Pooling
Agreement”),
dated
as of April 1, 2006, among the Company, as depositor (the “Depositor”),
Option One Mortgage Corporation, as servicer (the “Servicer”),
and
Deutsche Bank National Trust Company, as trustee (the “Trustee”).
Each
Certificate will evidence the holder’s beneficial ownership in a trust fund (the
“Trust
Fund”),
created pursuant to the Pooling Agreement, and consisting primarily of fixed
rate and adjustable rate, residential mortgage loans (the “Mortgage
Loans”)
secured by first and second liens on Residential Dwellings. The Offered
Certificates are described more fully in Schedule I hereto and in the Prospectus
Supplement furnished to the Underwriters by the Company and referred to below.
Capitalized
terms used but not otherwise defined herein shall have the respective meanings
assigned to them in the Pooling Agreement.
1. Representations
and Warranties.
The
Company represents and warrants to, and agrees with, the Underwriters that,
as
of the date hereof and as of the Closing Date:
(a) The
Company has filed with the Securities and Exchange Commission (the “Commission”)
a
registration statement on Form S-3 (the file number of which is set forth in
Schedule I hereto) for the registration of securities, issuable in series under
the Securities Act of 1933, as amended (the “1933
Act”),
which
registration statement was declared effective on the date set forth in Schedule
I hereto and copies of which have heretofore been delivered to the Underwriters.
The Company meets the requirements for use of Form S-3 under the 1933 Act,
and
such registration statement, as amended at the date hereof, meets the
requirements set forth in Rule 415(a)(1)(x) under the 1933 Act and complies
in
all other material respects with the 1933 Act and the rules and regulations
thereunder. The Company proposes to file with the Commission, with the
Underwriters’ consent, pursuant to Rule 424 under the 1933 Act, a supplement to
the form of prospectus included in such registration statement relating to
the
Offered Certificates and the plan of distribution thereof, and has previously
advised the Underwriters of all further information (financial and other) with
respect to the Offered Certificates and the Mortgage Loans to be set forth
therein. Such registration statement, as of its effective date, and each
amendment thereto to the date of this Agreement, as of its effective date,
including all exhibits thereto, is hereinafter called the “Registration
Statement.”
The
Company proposes to prepare and file with the Commission pursuant to Rule 424
under the 1933 Act a final prospectus dated September 26, 2005 (the
“Base
Prospectus”)
and a
final prospectus supplement dated March 14, 2006 relating to the Offered
Certificates (the “Prospectus
Supplement”).
The
Company also proposes to prepare and file with the Commission pursuant to Rule
433 of the 1933 Act a free writing prospectus, dated March 13, 2006, relating
to
the Offered Certificates (the “Pricing
Free Writing Prospectus”).
The
Base Prospectus and the Prospectus Supplement relating to the Offered
Certificates in the form to be filed with the Commission pursuant to Rule 424
are hereinafter together called the “Final
Prospectus.”
Each
of the Pricing Free Writing Prospectus and the Final Prospectus is referred
to
herein as a “Prospectus.”
(b) As
of the
date hereof, as of the date on which the Pricing Free Writing Prospectus is
first filed pursuant to Rule 433 under the 1933 Act, as of the date on which
the
Final Prospectus is first filed pursuant to Rule 424 under the 1933 Act, as
of
the date on which, prior to the Closing Date (as hereinafter defined), any
amendment to the Registration Statement becomes effective, as of the date on
which any supplement to the Final Prospectus is filed with the Commission,
and
at the Closing Date, (i) the Registration Statement, as amended as of any such
time, the Free Writing Prospectus, as amended or supplemented as of any such
time, and the Final Prospectus, as amended or supplemented as of any such time,
comply and will comply as to form in all material respects with the applicable
requirements of the 1933 Act and the rules and regulations thereunder, (ii)
the
Registration Statement, as of the applicable effective date as to each part
of
the Registration Statement, did not contain any 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, (iii) the Free Writing
Prospectus, as of its date, did 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 (a) information omitted from the Free
Writing Prospectus but included in the Final Prospectus or (b) information
contained in or omitted from the Registration Statement or the Final Prospectus
in reliance upon and in conformity with information furnished to the Company
in
writing by the Underwriters through the Representative expressly for use
therein, as specified on Exhibit C hereto (the “Underwriters’
Information”)
and
(iv) the Final Prospectus, as of its date, and as amended or supplemented as
of
the Closing Date, does not and will not contain any untrue statement of a
material fact 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, not misleading; provided,
however,
that
the Company makes no representations or warranties as to statements contained
in
or omitted from the Registration Statement or the Final Prospectus or any
amendment or supplement thereto made in reliance upon and in conformity with
the
Underwriters’ Information. It is understood and acknowledged that the only
information furnished to the Company in writing by the Underwriter is the
Underwriters’ Information (as defined in Section 7(b) herein).
(c) The
Company has been duly incorporated and is validly existing as a corporation
in
good standing under the laws of the State of Delaware, has full power and
authority (corporate and other) necessary to own or hold its properties and
to
conduct its business as now conducted by it and to enter into and perform its
obligations under this Agreement, the Pooling Agreement and two Assignment
Agreements.
(d) As
of the
date hereof, as of the date on which the Pricing Free Writing Prospectus is
first filed pursuant to Rule 433 under the 1933 Act, as of the date on which
the
Final Prospectus is first filed pursuant to Rule 424 under the 1933 Act, as
of
the date on which, prior to the Closing Date, any amendment to the Registration
Statement becomes effective, as of the date on which any supplement to the
Final
Prospectus is filed with the Commission, and as of the Closing Date, there
has
not been and will not have been
(i) any
request by the Commission for any further amendment to the Registration
Statement or the Final Prospectus or for any additional information,
(ii) any
issuance by the Commission of any stop order suspending the effectiveness of
the
Registration Statement or the institution or threat of any proceeding for that
purpose or
(iii) any
notification with respect to the suspension of the qualification of the Offered
Certificates for sale in any jurisdiction or any initiation or threat of any
proceeding for such purpose.
(e) As
of the
date hereof, the Company is not an “ineligible issuer” as defined in Rule 405
under the 1933 Act.
(f) This
Agreement has been duly authorized, executed and delivered by the
Company.
(g) Each
of
the Pooling Agreement and the Assignment Agreements (collectively, the
“Other
Agreements”),
when
executed and delivered as contemplated thereby, will have been duly authorized,
executed and delivered by the Company; and each of the Other Agreements and
this
Agreement, when so executed and delivered, will constitute a legal, valid,
binding and enforceable agreement of the Company, subject, as to enforceability,
to (i) bankruptcy, insolvency, reorganization, moratorium or other similar
laws
affecting creditors’ rights generally, (ii) general principles of equity
regardless of whether enforcement is sought in a proceeding in equity or at
law,
and (iii) with respect to any rights of indemnity under the Assignment
Agreements, limitations of public policy under applicable securities
laws.
(h) As
of the
Closing Date, the Offered Certificates will be duly and validly authorized
and,
when duly and validly executed, authenticated and delivered in accordance with
the Pooling Agreement and delivered to the Underwriters for the account of
the
Underwriters against payment therefor as provided herein, will be duly and
validly issued and outstanding and entitled to the benefits of the Pooling
Agreement. The Offered Certificates, will not be “mortgage related securities,”
as such term is defined in the singular in the Securities Exchange Act of 1934,
as amended (the “1934
Act”)
and as
such term is defined in the singular in the Secondary Mortgage Market
Enhancement Act of 1984 (“SMMEA”).
(i) As
of the
Cut-off Date, each of the Mortgage Loans will meet the criteria for selection
to
be described in the Pricing Free Writing Prospectus and the Final Prospectus
and
will conform to the descriptions thereof contained in the Pricing Free Writing
Prospectus and the Final Prospectus.
(j) The
Company is not in violation of its certificate of incorporation or by-laws
or in
default under any agreement, indenture or instrument the effect of which
violation or default would be material to the Company. None of (i) the issuance
and sale of the Offered Certificates, (ii) the execution and delivery by the
Company of this Agreement and the Other Agreements, (iii) the consummation
by
the Company of any of the transactions herein or therein contemplated, and
(iv)
the compliance by the Company with the provisions hereof or thereof, does or
will conflict with or result in a breach of any term or provision of the
certificate of incorporation or by-laws of the Company or conflict with, result
in a breach, violation or acceleration of, or constitute a default under, the
terms of any indenture or other agreement or instrument to which the Company
is
a party or by which it is bound, or any statute, order or regulation applicable
to the Company of any court, regulatory body, administrative agency or
governmental body having jurisdiction over the Company. The Company is not
a
party to, bound by or in breach or violation of any indenture or other agreement
or instrument, or subject to or in violation of any statute, order or regulation
of any court, regulatory body, administrative agency or governmental body having
jurisdiction over it that materially and adversely affects, or may in the future
materially and adversely affect, (i) the ability of the Company to perform
its
obligations under this Agreement and the Other Agreements or (ii) the business,
operations, financial conditions, properties or assets of the
Company.
(k) There
are
no actions or proceedings against, or investigations of, the Company pending
or,
to the knowledge of the Company, threatened, before any court, arbitrator,
administrative agency or other tribunal (i) asserting the invalidity of this
Agreement, the Other Agreements or the Certificates, (ii) seeking to prevent
the
issuance of the Certificates or the consummation of any of the transactions
contemplated by this Agreement and the Other Agreements, (iii) that are
reasonably likely to be adversely determined and that might materially and
adversely affect the performance by the Company of its obligations under, or
the
validity or enforceability of, this Agreement, the Other Agreements or the
Certificates or (iv) seeking to affect adversely the federal income tax
attributes of the Certificates as described in the Final
Prospectus.
(l) Any
taxes, fees and other governmental charges in connection with the execution
and
delivery of this Agreement and the Other Agreements or the execution, delivery
and sale of the Certificates have been or will be paid on or prior to the
Closing Date.
(m)
Immediately prior to the assignment of the Mortgage Loans to the Trustee as
contemplated by the Pooling Agreement, the Company (i) had good title to, and
was the sole owner of, each Mortgage Loan free and clear of any pledge,
mortgage, lien, security interest or other encumbrance (collectively,
“Liens”),
(ii)
had not assigned to any Person any of its right, title or interest in and to
such Mortgage Loans or in the Pooling Agreement and (iii) will have the power
and authority to sell such Mortgage Loans to the Trustee, and upon the execution
and delivery of the Pooling Agreement by the Trustee, the Trustee will have
acquired all of the Company’s right, title and interest in and to the Mortgage
Loans.
(n) Neither
the Company nor the Trust Fund is, and neither the issuance and sale of the
Certificates nor the activities of the Trust Fund pursuant to the Pooling
Agreement will cause the Company or the Trust Fund to be, an “investment
company” or under the control of an “investment company” as such terms are
defined in the Investment Company Act of 1940, as amended (the “Investment
Company Act”).
(o) At
the
Closing Date, the Offered Certificates will conform in all material respects
to
the descriptions thereof contained in the Pricing Free Writing Prospectus and
the Final Prospectus.
2. Purchase
and Sale.
Subject
to the terms and conditions and in reliance upon the representations and
warranties set forth herein, the Company agrees to sell the Offered Certificates
to the Underwriters, and the Underwriters agree (except as set forth in Section
8 hereof) to purchase, from the Company, the aggregate principal amount (or
notional amount, as applicable) of the Offered Certificates set forth opposite
its name in Schedule I hereto at the respective purchase prices set forth
therein (plus accrued interest, if applicable).
3. Delivery
and Payment.
Delivery of and payment for the Offered Certificates shall be made at the
offices of Xxxxxxx
Xxxxxxxx & Xxxx llp,
Two
World Financial Center, New York, New York 10281 at 10:00 a.m., Eastern Standard
Time, on the date specified in Schedule I hereto (or such later date not later
than seven business days after such specified date as the Underwriters shall
designate), which date and time may be changed by agreement between the
Underwriter and the Company or as provided herein (such date and time of
delivery and payment for the Offered Certificates being herein called the
“Closing
Date”).
Delivery of the Offered Certificates shall be made to the Underwriters, against
payment by the Underwriters of the purchase price therefor in immediately
available funds wired to such bank as may be designated by the Company, or
such
other manner of payment as may be agreed upon by the Company and the
Underwriters. The Offered Certificates to be so delivered shall be in book
entry
form, in each case, unless otherwise agreed, in such denominations and
registered in such names as the Underwriters may have requested in writing
not
less than two full business days in advance of the Closing Date.
The
Company agrees to have the Offered Certificates available for inspection,
checking and packaging by the Underwriters in the Borough of Manhattan in The
City of New York, not later than 10:00 a.m. on the business day prior to the
Closing Date.
4. Offering
of the Offered Certificates.
It is
understood that, subject to the terms and conditions hereof, the Underwriters
proposes to offer the Offered Certificates for sale to the public as set forth
in the Final Prospectus.
5. Covenants
of the Company and GCFP.
The
Company covenants and agrees with the Underwriters that:
(a) The
Company will prepare the Pricing Free Writing Prospectus and the Final
Prospectus setting forth the amount of Offered Certificates covered thereby
and
the terms thereof not otherwise specified in the Base Prospectus, the expected
proceeds to the Company from the sale of such Offered Certificates, and such
other information as the Underwriters and the Company may deem appropriate
in
connection with the offering of such Offered Certificates. The Company promptly
will advise the Underwriters or the Underwriters’ counsel (i) when the Pricing
Free Writing Prospectus or the Final Prospectus shall have been filed or
transmitted to the Commission for filing pursuant to Rule 433 or Rule 424,
as
applicable, (ii) when any amendment to the Registration Statement shall have
become effective or any further supplement to the Prospectus shall have been
filed with the Commission, (iii) of any proposal or request to amend or
supplement the Registration Statement, the Base Prospectus, the Pricing Free
Writing Prospectus or the Final Prospectus or any request by the Commission
for
any additional information, (iv) when notice is received from the Commission
that any post-effective amendment to the Registration Statement has become
or
will become effective, (v) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or post-effective
amendment thereto or the institution or threatening of any proceeding for that
purpose, (vi) of the receipt by the Company of any notification with respect
to
the suspension of the qualification of the Offered Certificates for sale in
any
jurisdiction or the institution or threatening of any proceeding for that
purpose and (vii) of the occurrence of any event that would cause the
Registration Statement, as then in effect, to contain an untrue statement of
a
material fact or omit to state a material fact required to be stated therein
or
necessary in order to make the statements therein not misleading, or that would
cause the Pricing Free Writing Prospectus or the Final Prospectus, as then
in
effect, to contain an untrue statement of a material fact or omit to state
a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
The
Company will use its best efforts to prevent the issuance of any such stop
order
or suspension and, if issued, to obtain as soon as possible the withdrawal
thereof. The Company will cause the Pricing Free Writing Prospectus and the
Final Prospectus to be transmitted to the Commission for filing pursuant to
Rule
433 and Rule 424 under the 1933 Act, as applicable or will cause the Pricing
Free Writing Prospectus and the Final Prospectus to be filed with the Commission
pursuant to said Rule 433 and Rule 424, as applicable.
(b) If,
at
any time when a prospectus relating to the Offered Certificates is required
to
be delivered under the 1933 Act, any event occurs as a result of which the
Final
Prospectus, as then amended or supplemented, would contain any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or if it shall be
necessary in the judgment of the Company or the Underwriters to amend or
supplement the Final Prospectus or the Registration Statement to comply with
the
1933 Act or the rules and regulations thereunder, the Company promptly will
prepare and file with the Commission, at the expense of the Company, subject
to
paragraph (a) of this Section 5, an amendment or supplement that will correct
such statement or omission or an amendment that will effect such compliance
and,
if such amendment or supplement is required to be contained in a post-effective
amendment to the Registration Statement, the Company will use its best efforts
to cause such amendment to the Registration Statement to be made effective
as
soon as possible. 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.
(c) The
Company will furnish to the Underwriters and the Underwriters’ counsel, without
charge, signed copies of the Registration Statement (including exhibits thereto)
and each amendment thereto which shall become effective on or prior to the
Closing Date, and so long as delivery of a prospectus by the Underwriters may
be
required by the 1933 Act, as many copies of the Final Prospectus and any
amendments and supplements thereto as the Underwriters may reasonably
request.
(d) [Reserved].
(e) The
Company will furnish such information, execute such instruments and take such
action, if any, as may be required to qualify the Offered Certificates for
sale
under the laws of such jurisdictions as the Underwriters may designate and
will
maintain such qualifications in effect so long as required for the distribution
of the Offered Certificates; provided,
however,
that
the Company shall not be required to qualify to do business in any jurisdiction
where it is not now qualified or to take any action that would subject it to
general or unlimited service of process in any jurisdiction where it is not
now
subject to such service of process.
(f) The
Company will pay or cause to be paid all costs and expenses in connection with
the transactions herein contemplated, including, but not limited to, the fees
and disbursements of its counsel; the costs and expenses of printing (or
otherwise reproducing) and delivering the Pooling Agreement and the
Certificates; the fees, costs and expenses of the Trustee (to the extent
permitted under the Pooling Agreement, and except to the extent that another
party is obligated to pay such amounts thereunder); the fees and disbursements
of accountants for the Company; the costs and expenses in connection with the
qualification or exemption of the Offered Certificates under state securities
or
“blue sky” laws, including filing fees and reasonable fees and disbursements of
counsel in connection therewith, in connection with the preparation of any
blue
sky survey and in connection with any determination of the eligibility of the
Offered Certificates for investment by institutional investors and the
preparation of any legal investment survey; the expenses of printing any such
blue sky survey and legal investment survey; the cost and expenses in connection
with the preparation, printing and filing of the Registration Statement
(including exhibits thereto), the Base Prospectus, the Pricing Free Writing
Prospectus and the Final Prospectus, the preparation and production of this
Agreement and the delivery to the Underwriters of such copies of the Pricing
Free Writing Prospectus and the Final Prospectus as the Underwriters may
reasonably request; and the fees of the Rating Agencies (as defined in Section
6
hereof).
(g) The
Company will enter into the Other Agreements on or prior to the Closing
Date.
(h) The
Company will file with the Commission within fifteen days after the issuance
of
the Offered Certificates a current report on Form 8-K setting forth specific
information concerning the Offered Certificates and the Mortgage Loans to the
extent that such information is not set forth in the Prospectus. The Company
will also file with the Commission any Free Writing Prospectus (as defined
herein) delivered to investors in accordance with Sections 6 and 7 (below)
as
the Company is required under the rules and regulations therunder to file,
and
to do so within the applicable period of time prescribed by the rules and
regulations.
(i) The
Company acknowledges and agrees that the Underwriters is acting solely in the
capacity of an arm’s length contractual counterparty to the Company with respect
to the offering of Securities contemplated hereby (including in connection
with
determining the terms of the offering) and not as a financial advisor or a
fiduciary to, or an agent of, the Company or any other person. In addition,
neither the Representative nor any other Underwriters is advising the Company
or
any other person as to any legal, tax, investment, accounting or regulatory
matters in any jurisdiction. The Company shall consult with its own advisors
concerning such matters, and the Underwriters shall have no responsibility
or
liability to the Company with respect thereto. The Company has been advised
that
the Underwriters and their affiliates are engaged in a broad range of
transactions that may involve interests that differ from those of the Company
and that the Underwriters has no obligation to disclose such interests and
transactions to the Company by virtue of any fiduciary, advisory or agency
relationship. Any review by the Underwriters of the Company, the transactions
contemplated hereby or other matters relating to such transactions will be
performed solely for the benefit of the Underwriters and shall not be on behalf
of the Company.
(j) The
Company will, to the extent that the Underwriters has complied with the terms
of
Section 5 (below), file with the Commission any Free Writing Prospectus (as
defined herein) delivered to investors in accordance with Sections 6 and 7
(below), as the Company is required under the rules and regulations to file,
and
do so within the applicable period of time prescribed by the rules and
regulations.
6. Covenants
of the Underwriters.
The
Underwriters covenant and agree with the Company that:
(a) It
has
not provided and will not provide to any potential investor any information
that
would constitute “issuer information” within the meaning of Rule 433(h) under
the Securities Act other than information contained in the Preliminary Term
Sheet (as defined herein).
(b) In
disseminating information to prospective investors, it has complied and will
continue to comply fully with the rules and regulations, including, but not
limited to Rules 164 and 433 under the Securities Act and the requirements
thereunder for filing and retention of free writing prospectuses.
(c) It
has
not disseminated and will not disseminate any information relating to the
Offered Certificates in reliance on Rule 167 or 426 under the Securities
Act.
(d) It
has
not disseminated and will not disseminate any information relating to the
Offered Certificates in a manner reasonably designed to lead to its broad
unrestricted dissemination within the meaning of Rule 433(d) under the
Securities Act.
(e) Each
Free
Writing Prospectus disseminated by such Underwriter bore or will bear the
applicable legends required under this Agreement, and no Free Writing Prospectus
disseminated by such Underwriter bore or will bear any legend prohibited under
this Agreement.
(f) Prior
to
entering into any Contract of Sale, the Underwriters shall convey the
Pricing
Free
Writing Prospectus to each prospective investor. The Underwriters shall maintain
sufficient records to document its conveyance of the Pricing Free Writing
Prospectus to each potential investor prior to the formation of the related
Contract of Sale and shall maintain such records as required by the rules and
regulations.
(g) On
or
before the Closing Date, the Underwriters shall execute and deliver to Xxxxxxx
Xxxxxxxx & Xxxx llp
a copy
of the original issue discount pricing letter provided to the Representative
by
Xxxxxxx Xxxxxxxx & Xxxx llp.
(h) In
relation to each member state of the European Economic Area which has
implemented the Prospectus Directive (each, a “Relevant Member State”), each
Underwriter represents and agrees that with effect from and including the date
on which the Prospectus Directive is implemented in that Relevant Member State
(the “Relevant Implementation Date”), they have not made and will not make an
offer of Underwritten Certificates to the public in that Relevant Member State
prior to the publication of a prospectus in relation to the Underwritten
Certificates which has been approved by the competent authority in that Relevant
Member State or, where appropriate, approved in another Relevant Member State
and notified to the competent authority in that Relevant Member State, all
in
accordance with the Prospectus Directive, except that it may, with effect from
and including the Relevant Implementation Date, make an offer of Underwritten
Certificates to the public in that Relevant Member State at any
time:
(i) to
legal
entities which are authorized or regulated to operate in the financial markets
or, if not so authorized or regulated, whose corporate purpose is solely to
invest in securities;
(ii) to
any
legal entity which has two or more of (x) an average of at least 250 employees
during the last financial year; (y) a total balance sheet of more than
€43,000,000 and (z) an annual net turnover of more than €50,000,000, as shown in
its last annual or consolidated accounts; or
(iii) in
any
other circumstances which do not require the publication by the issuer of a
prospectus pursuant to Article 3 of the Prospectus Directive.
For
the
purposes of this Section, the expression an “offer of Underwritten Certificates
to the public” in relation to any certificates in any Relevant Member State
means the communication in any form and by any means of sufficient information
on the terms of the offer and the Underwritten Certificates to be offered so
as
to enable an investor to decide to purchase or subscribe for the offered
certificates, as the same may be varied in that member state by any measure
implementing the Prospectus Directive in that member state and the expression
“Prospectus Directive” means Directive 2003/71/EC and includes any relevant
implementing measure in each Relevant Member State.
(i) Each
confirmation of sale with respect to Offered Certificates delivered by an
Underwriter shall, if such confirmation of sale is not preceded or accompanied
by delivery of the Final Prospectus, include a legend to the following effect
in
compliance with Rule 173:
Rule
173
notice: This security was sold pursuant to an effective registration statement
that is on file with the SEC. You may request a copy of the final prospectus
at
xxx.xxx.xxx, or by calling [ ].
7. Offering
Procedures.
(a) The
following terms have the specified meanings for purposes of this
Agreement:
(i) “Contract
of Sale” has the same meaning as the term “contract of sale” as used in Rule 159
under the Securities Act.
(ii) “Derived
Information” means any information regarding the Offered Certificates, other
than the Issuer Information, disseminated by any Underwriter to a potential
investor.
(iii) “Free
Writing Prospectus” means the Preliminary Term Sheet, the Pricing Free Writing
Prospectus and any other information relating to the Offered Certificates
disseminated by the Depositor or any Underwriter that constitutes a “free
writing prospectus” within the meaning of Rule 405 under the Securities
Act.
(iv) “Issuer
Information” means the information contained in pages 1 through 22 of the
Preliminary Term Sheet.
(v) “Preliminary
Term Sheet” means the preliminary term sheet dated March 8, 2006 attached hereto
as Exhibit A.
(b) Neither
the Company nor the Underwriters will disseminate to any potential investor
any
information relating to the Offered Certificates that constitutes a “written
communication” within the meaning of Rule 405 under the Securities Act, other
than the Preliminary Term Sheet, a Prospectus and, in the case of the
Underwriters, Derived Information, unless (i) if the Underwriters seek to
disseminate such information, such Underwriter or the Representative has
obtained the prior consent of the Company, or (ii) if the Company seeks to
disseminate such information, the Company has obtained the prior consent of
the
Representative.
The
Underwriters may convey Derived Information (x) to a potential investor prior
to
entering into a Contract of Sale with such investor; provided, however, that
such Derived Information shall not be “broadly disseminated” and (y) to an
investor after a Contract of Sale provided that the Underwriters have complied
with Section 6(f) in connection with such Contract of Sale. The Underwriters
shall maintain records of any conveyance of Derived Information to potential
or
actual investors and shall maintain such records as required by the
Regulations.
Neither
the Company nor the Underwriters shall disseminate or file with the Commission
any information relating to the Offered Certificates in reliance on Rule 167
or
426 under the Securities Act, nor shall the Company or the Underwriters
disseminate any Free Writing Prospectus in a manner reasonably designed to
lead
to its broad unrestricted dissemination within the meaning of Rule 433(d) under
the Securities Act.
(c) Each
Free
Writing Prospectus shall bear the applicable legends specified in Exhibit
B.
8. Conditions
to the Purchase of the Offered Certificates.
The
obligations of the Underwriters hereunder to purchase the Offered Certificates
shall be subject to the accuracy of the representations and warranties on the
part of the Company contained herein as of the date hereof, as of the date
of
the effectiveness of any amendment to the Registration Statement filed prior
to
the Closing Date and as of the Closing Date, to the accuracy of the statements
of the Company made in any certificates delivered pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder and
to
the following additional conditions:
(a) The
Registration Statement shall have become effective and no stop order suspending
the effectiveness of the Registration Statement, as amended from time to time,
shall have been issued and not withdrawn and no proceedings for that purpose
shall have been instituted or threatened; the Pricing Free Writing Prospectus
shall have been filed or transmitted for filing with the Commission in
accordance with Rule 433 under the 1933 Act and the Final Prospectus shall
have
been filed or transmitted for filing with the Commission in accordance with
Rule
424 under the 1933 Act.
(b) The
Company shall have delivered to the Underwriters a certificate of the Company,
signed by the President or a vice president of the Company and dated the Closing
Date, to the effect that the signer of such certificate has carefully examined
the Registration Statement, the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are
true
and correct in all material respects at and as of the Closing Date with the
same
effect as if made on the Closing Date, (ii) the Company has complied with all
the agreements and satisfied all the conditions on its part to be performed
or
satisfied at or prior to the Closing Date, (iii) no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to the Company’s knowledge,
threatened, and (iv) nothing has come to the attention of the signer hereof
on
behalf of the Company that would lead said signer to believe that the Final
Prospectus contains any untrue statement of a material fact or omits to state
any material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading.
(c) The
Representative shall have received, in form and substance reasonably
satisfactory to the Representative and counsel for the Underwriters, a negative
assurance letter of Underwriters’ Counsel, with respect to each
Prospectus.
(d) The
Representative shall have received, in form and substance reasonably
satisfactory to the Representative and counsel for the Underwriters, a negative
assurance letter of Xxxxxxx Xxxxxxxx & Xxxx llp,
counsel
to the Company, with respect to each Prospectus.
(e) The
Underwriters shall have received from Xxxxxxx Xxxxxxxx & Xxxx llp
and
counsel for the Company, one or more favorable opinions, dated the Closing
Date,
to the effect that:
(i) The
Registration Statement has become effective under the 1933 Act; to the best
knowledge of such counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued and not withdrawn, no proceedings for
that purpose have been instituted or threatened and not terminated; and the
Registration Statement and the Final Prospectus, as of their effective or issue
dates (in each case other than the documents incorporated therein by reference
and the numerical, financial and statistical information contained therein,
as
to which such counsel need express no opinion), complied as to form in all
material respects with the applicable requirements of the 1933 Act and the
rules
and regulations thereunder;
(ii) To
the
best knowledge of such counsel, there are no material contracts, indentures
or
other documents of a character required to be described or referred to in the
Registration Statement or the Final Prospectus or to be filed as exhibits to
the
Registration Statement other than those described or referred to therein or
filed or incorporated by reference as exhibits thereto;
(iii) This
Agreement has been duly authorized, executed and delivered by the
Company;
(iv) Each
of
the Pooling
Agreement and the Assignment and Recognition Agreements has been duly
authorized, executed and delivered by the Company and constitutes a legal,
valid
and binding agreement of the Company, enforceable against the Company in
accordance with its terms, subject, as to enforceability, to bankruptcy,
insolvency, reorganization, moratorium and other similar laws affecting
creditors’ rights generally and to general principles of equity, regardless of
whether enforcement is sought in a proceeding in equity or at law;
(v) The
statements in the Base Prospectus under the headings “Material Federal Income
Tax Consequences” and “ERISA Considerations,” the statements in the Prospectus
Supplement under the headings “Summary Of Terms—Material Federal Income Tax
Consequences,” “—ERISA Considerations,” “Material Federal Income Tax
Consequences” and “ERISA Considerations” to the extent that they constitute
matters of federal law or legal conclusions with respect thereto are correct
in
all material respects with respect to those consequences or aspects that are
discussed;
(vi) The
direction
by
the Company to the Trustee to execute, authenticate and deliver the Offered
Certificates has been duly authorized by the Company, and the Offered
Certificates, when executed and authenticated in the manner contemplated in
the
Pooling Agreement, will be validly issued and outstanding and entitled to the
benefits of the Pooling Agreement;
(vii) The
Offered Certificates and the Pooling Agreement conform to the descriptions
thereof contained in the Final Prospectus;
(viii) The
Pooling Agreement is not required to be qualified under the Trust Indenture
Act
of 1939, as amended, and neither the Company nor the Trust Fund is required
to
be registered under the Investment Company Act; and
(ix) Assuming
compliance with the Pooling Agreement for federal income tax purposes, each
REMIC created thereunder will qualify as a REMIC within the meaning of Section
860D of the Internal Revenue Code of 1986, as amended.
In
addition, such counsel shall state that nothing has come to its attention which
has led it to believe that the Registration Statement, at the time the
Registration Statement became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or the Final
Prospectus as of the date of the Final Prospectus, included or includes an
untrue statement of a material fact or omitted or omits 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; it being understood
that such counsel need express no opinion or belief as to (a) financial
statements, schedules, tables and other financial or statistical data included
or incorporated by reference in or omitted from the Final Prospectus or (b)
the
information in the Prospectus Supplement under the headings “The Mortgage Pool,”
“The Sponsor” and “The Servicer.”
(f) The
Underwriters shall have received from the in-house counsel to the Company or
an
affiliate of the Company, a favorable opinion, dated the Closing Date, to the
effect that:
(i) The
Company has been duly organized and is validly existing as a corporation in
good
standing under the laws of the State of Delaware and has all corporate power
and
authority necessary to own or hold its properties and to conduct its business
as
now conducted by it and to enter into and perform its obligations under this
Agreement and the Other Agreements;
(ii) To
the
best knowledge of such counsel, there are no actions, proceedings or
investigations pending or threatened against or affecting the Company before
or
by any court, arbitrator, administrative agency or other governmental authority
reasonably likely to be adversely determined that would materially and adversely
affect the ability of the Company to carry out the transactions contemplated
in
this Agreement or the Other Agreements;
(iii) No
consent, approval, authorization or order of, or filing or registration with,
any state or federal court or governmental agency or body is required for the
consummation by the Company of the transactions contemplated herein, except
such
as may be required under the blue sky laws of any jurisdiction in connection
with the purchase and distribution of the Offered Certificates and except any
recordation of the assignments of the Mortgage Loans to the Trustee pursuant
to
the Pooling Agreement that have not yet been completed; and
(iv) The
Company is not in violation of its certificate of incorporation or by-laws
or in
default under any agreement, indenture or instrument the effect of which
violation or default would be material
to the
Company, and none of (A) the issuance and sale of the Offered Certificates,
(B)
the execution or delivery of or performance under this Agreement or the Other
Agreements, and (C) the consummation of any other of the transactions
contemplated herein or therein will conflict with or result in a breach or
violation of any term or provision of, or constitute a default (or an event
which with the passing of time or notification, or both, would constitute a
default) under, the certificate of incorporation or by-laws of the Company,
or,
to the knowledge of such counsel, any indenture or other agreement or instrument
to which the Company or any of its affiliates is a party or by which it or
any
of them is bound, or any New York or federal statute or regulation applicable to
the Company or any of its affiliates or, to the knowledge of such counsel,
any
order of any New York or federal court, regulatory body, administrative agency
or governmental body having jurisdiction over the Company or any of its
affiliates.
(g) [Reserved];
(h) The
Underwriters shall have received from in-house counsel to the Seller, one or
more favorable opinions, dated the Closing Date, to the effect
that:
(i) The
Seller has been duly organized and is validly existing as a corporation in
good
standing under the laws of its state of incorporation and has all corporate
power and authority necessary to own or hold its properties and to conduct
its
business as now conducted by it and to enter into and perform its obligations
under this Agreement and the Other Agreements;
(ii) To
the
best knowledge of such counsel, there are no actions, proceedings or
investigations pending or threatened against or affecting such Seller before
or
by any court, arbitrator, administrative agency or other governmental authority
reasonably likely to be adversely determined that would materially and adversely
affect the ability of the Seller to carry out the transactions contemplated
in
this Agreement and the Other Agreements;
(iii) No
consent, approval, authorization or order of, or filing or registration with,
any state or federal court or governmental agency or body is required for the
consummation by the Seller of the transactions contemplated herein;
(iv) The
Seller is not in violation of its certificate of incorporation or by-laws or
in
default under any agreement, indenture or instrument the effect of which
violation or default would be material to the Seller, and neither (A) the
execution or delivery of or performance under this Agreement and the Other
Agreements nor (B) the consummation of any other of the transactions
contemplated therein will conflict with or result in a breach or violation
of
any term or provision of, or constitute a default (or an event which with the
passing of time or notification, or both, would constitute a default) under,
the
certificate of incorporation or by-laws of the Seller, or, to the knowledge
of
such counsel, any indenture or other agreement or instrument to which the Seller
or any of its affiliates is a party or by which it or any of them is bound,
or
any state or federal statute or regulation applicable to the Seller or any
of
its affiliates or, to the knowledge of such counsel, any order of any state
or
federal court, regulatory body, administrative agency or governmental body
having jurisdiction over the Seller or any of its affiliates; and
(i) The
Representative shall have received, in form and substance reasonably
satisfactory to the Representative and counsel for the Underwriters, letters
prepared by Deloitte & Touche LLP, certified public accountants, (a)
regarding certain numerical information contained or incorporated by reference
in the Pricing Free Writing Prospectus and the Final Prospectus and (b) relating
to certain agreed upon procedures as requested by the Underwriters relating
to
the Mortgage Loans.
(j) The
Underwriters shall have received from each of Standard & Poor’s Ratings
Services, a division of The XxXxxx-Xxxx Companies, Inc. (“S&P”)
and
Xxxxx’x Investors Service, Inc. (“Xxxxx’x”
collectively with S&P, the “Rating
Agencies”)
a
rating letter assigning to the Offered Certificates the ratings indicated on
Schedule I hereto, none of which ratings shall have been withdrawn.
(k) The
Underwriters shall have received from counsel for the Trustee a favorable
opinion, dated the Closing Date, in form and substance satisfactory to the
Underwriters and the Underwriters’ counsel, to the effect that the Pooling
Agreement has been duly authorized, executed and delivered by the Trustee and
constitutes the legal, valid, binding and enforceable agreement of the Trustee,
subject, as to enforceability, to bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors’ rights in general and by
general principles of equity regardless of whether enforcement is considered
in
a proceeding in equity or at law, and as to such other matters as may be agreed
upon by the Underwriters and the Trustee.
(l) [Reserved]
(m)
The
Underwriters shall have received such further information, certificates,
documents and opinions as it may reasonably have requested not less than three
business days prior to the Closing Date.
(n) All
proceedings in connection with the transactions contemplated by this Agreement
and all documents incident hereto shall be satisfactory in form and substance
to
the Underwriters and the Underwriters’ counsel, and the Underwriters and such
counsel shall have received such information, certificates and documents as
it
or they may have reasonably requested.
(o) If
any of
the conditions specified in this Section 8 shall not have been fulfilled in
all
material respects when and as provided in this Agreement, if the Company is
in
breach of any covenants or agreements contained herein or if any of the opinions
and certificates referred to above or elsewhere in this Agreement shall not
be
in all material respects reasonably satisfactory in form and substance to the
Underwriters and the Underwriters’ counsel, this Agreement and all the
obligations of the Underwriters hereunder may be canceled by the Underwriters
at, or at any time prior to, the Closing Date. Notice of such cancellation
shall
be given to the Company in writing, or by telephone or facsimile transmission
confirmed in writing.
9. Indemnification
and Contribution.
The
Company agrees with the Underwriters that:
(a) The
Company indemnifies and holds harmless the Underwriters, the Underwriters’
officers, directors and partners, and each Person who controls the Underwriters
within the meaning of either the 1933 Act or the 1934 Act against any and all
losses, claims, damages or liabilities, joint or several, to which the
Underwriters may become subject under the 1933 Act, the 1934 Act, or other
federal or state law or regulation, at common law or otherwise, insofar as
such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out
of or are based upon (x) any untrue statement or alleged untrue statement of
a
material fact contained in the Registration Statement or in any amendment
thereof, or the omission or alleged omission to state in the Registration
Statement or any amendment thereof a material fact required to be stated therein
or necessary to make the statements therein not misleading, or (y) any untrue
statement or alleged untrue statement of a material fact contained in the Base
Prospectus, the Pricing Free Writing Prospectus or the Final Prospectus, or
the
omission or alleged omission to state in the Base Prospectus, the Pricing Free
Writing Prospectus, the Final Prospectus or in any amendment or supplement
to
any of them, or the Issuer Information, a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, and agrees to reimburse
for any legal or other expenses reasonably incurred by the Underwriters, the
Underwriters’ respective officers and directors and each 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 Company shall not be liable in any such case to the extent that any such
loss, claim, expense, 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) under the heading “Yield, Prepayment and Maturity
Considerations—Weighted Average Lives,” the tables regarding assumed mortgage
loan characteristics and the tables entitled “Percent of Original Certificate
Principal Balance Outstanding” (collectively, the “Excluded Information”); (y)
in reliance upon and in conformity with any Underwriters’ Information or (z) in
any Derived Information in any Free Writing Prospectus, except in the case
of
clause (x) or (z) to the extent that any untrue statement or omission or alleged
untrue statement or alleged omission therein results (or is alleged to have
resulted) from an error or material omission in the information in the Pricing
Free Writing Prospectus or the Final Prospectus for which the Company is
responsible or concerning the characteristics of the Mortgage Loans furnished
by
the Seller or the Company, as applicable, to the Underwriters for use in the
preparation of any Excluded Information in any Free Writing Prospectus (any
such
information, the “Pool Information”), which error was not superseded or
corrected by the delivery to the Underwriters of corrected written or electronic
information, or for which the Company did not provide timely written notice
of
such error to the Underwriters (any such uncorrected Pool information, a “Pool
Error”); and, provided
further
that the
Company shall not be liable in any such case to the extent that any such loss,
claim, expense, damage or liability arises out of or is based upon an omission
to include in the Pricing Free Writing Prospectus information included in the
Final Prospectus.
(b) The
Underwriters agree to indemnify and hold harmless the Company, each of its
directors, each of its officers who signs the Registration Statement, and each
Person, if any, who controls the Company within the meaning of either the 1933
Act or the 1934 Act, to the same extent as the foregoing indemnity from the
Company to the Underwriters, but only if any such loss, claim, damage or
liability arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and
in
conformity with the Underwriters’ Information of the Underwriters except to the
extent that such misstatement or omission arises from a misstatement or omission
in the Company Provided Information. This indemnity will be in addition to
any
liability that the Underwriters may otherwise have. The Company and the
Underwriters each acknowledge that (i) the term Underwriters’ Information shall
mean the last paragraph on the cover page of the Prospectus Supplement and
the
first paragraph (including the table following such paragraph) and the first
sentence of the second paragraph under the heading “Method of Distribution” in
the Prospectus Supplement and (ii) Underwriters’ Information constitutes the
only information furnished in writing by the Underwriters for inclusion in
the
documents referred to in the foregoing indemnity, and the Underwriters confirms
that its Underwriters’ Information is correct.
(c) Promptly
after receipt by an indemnified party under this Section 9 of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 9,
notify the indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from any
liability that it may have to any indemnified party otherwise than under this
Section 9. In case any such action is brought against any indemnified party
and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein, and to the extent that it may
elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party;
provided,
however,
that if
the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party or parties shall have reasonably
concluded that there may be legal defenses available to it or them and/or other
indemnified parties that are different from or additional to those available
to
the indemnifying party or there is a conflict or potential conflict 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), the indemnified party or parties shall have the right
to
elect separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party
or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval
by
the indemnified party of counsel, the indemnifying party will not be liable
for
any legal or other expenses subsequently incurred by such indemnified party
in
connection with the defense thereof, unless (i) the indemnified party shall
have
employed separate counsel in connection with the assertion of legal defenses
in
accordance with the proviso to the immediately preceding sentence (it being
understood, however, that the indemnifying party shall not be liable for the
expenses of more than one separate counsel in addition to local counsel,
approved by the Underwriters in the case of paragraph (a) of this Section 9),
(ii) the indemnifying party shall not have employed counsel satisfactory to
the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action or (iii) the indemnifying party
has
authorized the employment of counsel for the indemnified party at the expense
of
the indemnifying party; and except that, if clause (i) or (iii) is applicable,
such liability shall only be in respect of the counsel referred to in such
clause (i) or (iii). Each indemnified party, as a condition of the indemnity
agreements contained in Section 9(a) and (b), shall use its reasonable 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, conditioned or delayed) 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
9(a) or (b) as applicable) by reason of such settlement or judgment. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened action in respect
of
which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party unless such settlement
(i)
includes an unconditional release of such indemnified party from all liability
on any claims that are the subject of such action and (ii) does not include
a
statement as to, or an admission of, fault, culpability or failure to act by
or
on behalf of an indemnified party.
(d) If
the
indemnification provided for in this Section 9 is unavailable or insufficient
to
hold harmless an indemnified party under this Section 9, then each indemnifying
party shall contribute to the amount paid or payable by such indemnified party
as a result of the aggregate losses, claims, damages and liabilities referred
to
in paragraph (a) or (b) above, in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and the
Underwriters on the other from the offering of the Offered Certificates. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law, then each indemnifying party shall contribute
to
such amount paid or payable by such indemnified party in such proportion as
is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as
any
other relevant equitable considerations. The relative benefits received by
the
Underwriters shall be equal to its aggregate discount and underwriting
commissions with respect to the Offered Certificates purchased by it as set
forth on Schedule I hereto, and the relative benefits of the Company shall
be
equal to the balance of the proceeds of the sale of the Offered Certificates.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of material fact or the omission
or alleged omission to state a material fact relates to information supplied
by
the Company or the Underwriters and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or
omission. The Company and the Underwriters agree that it would not be just
and
equitable if contribution were determined by pro rata allocation or by any
other
method of allocation which does not take account of the equitable considerations
referred to above. The amount paid or payable by an indemnified party as a
result of the claims (or actions in respect thereof) referred to above shall
be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such claim.
Notwithstanding the provisions of this subsection (d), the Underwriters shall
not be required to contribute any amount in excess of the amount by which the
total amount of underwriting discounts and commissions received by the
Underwriters with respect to the related Offered Certificates (which amounts
are
set forth in Schedule I hereto) exceeds the amount of damages which the
Underwriters would have otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. 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. For purposes of this Section 9, a Person, if
any,
that controls the Underwriters within the meaning of either the 1933 Act or
the
1934 Act shall have the same rights to contribution as does the Underwriters
and
each director of the Underwriters and each officer of the Underwriters shall
have the same rights to contribution as the Underwriters, and each Person,
if
any, that controls the Company within the meaning of either the 1933 Act or
the
1934 Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company. Any party entitled to contribution will, promptly
after receipt of notice of commencement of any action, suit or proceeding
against such party in respect of which a claim for contribution may be made
against another party or parties under this paragraph (d), notify such party
or
parties from whom contribution may be sought, but the omission to so notify
such
party or parties shall not relieve the party or parties from whom contribution
may be sought from any other obligation it or they may have hereunder or
otherwise than under this paragraph (d).
10. Termination. (a)
This
Agreement shall be subject to termination in the Underwriters’ absolute
discretion, by notice given to the Company prior to delivery of and payment
for
the Offered Certificates, if, prior to such time, (i) trading of securities
generally on the New York Stock Exchange or the American Stock Exchange or
the
over the counter market shall have been suspended or materially limited, (ii)
a
general moratorium on commercial banking activities in New York shall have
been
declared by either federal or New York State authorities, (iii) there shall
have
occurred any material outbreak or declaration of hostilities or other calamity
or crisis the effect of which on the financial markets of the United States
is
such as to make it, in either Underwriter’s reasonable judgment, impracticable
to market the Offered Certificates on the terms specified herein or (iv) if
any
other closing condition set forth in Section 6 shall not have been fulfilled
when required to be fulfilled.
(b) If
the
sale of the Offered Certificates shall not be consummated because any condition
to the obligations of the Underwriters set forth in Section 6 hereof is not
satisfied or because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or comply with any provision hereof
other than by reason of the default of such Underwriter, the Company shall
reimburse such Underwriter for the reasonable fees and expenses of such
Underwriter’s counsel and for such other out-of-pocket expenses as shall have
been incurred by such Underwriter in connection with this Agreement and the
proposed purchase of the Offered Certificates, and upon demand the Company
shall
pay the full amount thereof to such Underwriter.
(c) This
Agreement will survive delivery of and payment for the Offered Certificates.
The
provisions of Section 7 and this Section 8(c) shall survive the termination
or
cancellation of this Agreement and shall remain in full force and effect,
regardless of any investigation made by or on behalf of any of the Underwriters
or any persons controlling it.
11. [Reserved.]
12. Notices.
All
communications hereunder will be in writing and effective only on receipt,
and,
if sent to GCM, will be mailed, delivered or transmitted by facsimile and
confirmed to Greenwich Capital Markets, Inc. at 000 Xxxxxxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxxxxx 00000, attention: Legal Department; if sent to the Company, will
be
mailed, delivered or transmitted by facsimile and confirmed to it at 000
Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000, xxxxxxxxx: Legal
Department.
13. No
Advisory or Fiduciary Responsibility.
Each of
the Company and the Underwriters acknowledges and agrees that: (i) the purchase
and sale of the Offered Certificates pursuant to this Agreement, including
the
determination of the public offering price of the Offered Certificates and
any
related discounts and commissions, is an arm’s-length commercial transaction
between the Company and the Underwriters, on the one hand, and the Underwriters,
on the other hand, and the Company and the Underwriters are capable of
evaluating and understanding and understand and accept the terms, risks and
conditions of the transactions contemplated by this Agreement; (ii) in
connection with each transaction contemplated hereby and the process leading
to
such transaction the Underwriter is and has been acting solely as a principal
and is not the financial advisor, agent or fiduciary of the Company, the
Underwriters or their respective affiliates, stockholders, creditors or
employees or any other party; (iii) the Underwriters have not assumed or will
not assume an advisory, agency or fiduciary responsibility in favor of the
Company or the Underwriters with respect to any of the transactions contemplated
hereby or the process leading thereto (irrespective of whether the Underwriter
has advised or is currently advising the Company or the Underwriters on other
matters) or any other obligation to the Company or the Underwriters except
the
obligations expressly set forth in this Agreement; (iv) the Underwriter and
its
respective affiliates may be engaged in a broad range of transactions that
involve interests that differ from those of the Company and the Underwriters
and
that the Underwriter has no obligation to disclose any of such interests by
virtue of any advisory, agency or fiduciary relationship; and (v) the
Underwriter has not provided any legal, accounting, regulatory or tax advice
with respect to the offering contemplated hereby and the Company and the
Underwriters have consulted their own legal, accounting, regulatory and tax
advisors to the extent they deemed appropriate.
This
Agreement supersedes all prior agreements and understandings (whether written
or
oral) between the Company and the Underwriters, or any of them, with respect
to
the subject matter hereof. The Company and the Underwriters hereby waive and
release, to the fullest extent permitted by law, any claims that the Company
and
the Underwriters may have against the Underwriter with respect to any breach
or
alleged breach of agency or fiduciary duty.
14. 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, and their successors and assigns, and no
other
Person will have any right or obligation hereunder except that the
representations, warranties, indemnities and agreements contained in this
Agreement also shall be deemed to be for the benefit of the Person or Persons,
if any, who control the Underwriters within the meaning of the 1933 Act and
for
the benefit of the Underwriters’ officers and directors.
15. Applicable
Law; Counterparts.
This
Agreement will be governed by and construed in accordance with the laws of
the
State of New York without giving effect to principles of conflicts of law.
This
Agreement may be executed in any number of counterparts, each of which shall
for
all purposes be deemed to be an original and all of which shall together
constitute but one and the same instrument.
16. Minimum
Investment Amounts.
The
Underwriters shall only sell the Certificates to initial investors in minimum
total investment amounts of $100,000.
[Signature
page follows]
If
the
foregoing correctly sets forth the agreement between the Depositor and the
Underwriters, please indicate your acceptance in the space provided for the
purpose below.
Very
truly yours,
FINANCIAL
ASSET SECURITIES
CORP.
By: /s/
Xxxxxxx Xxx
Name:
Xxxxxxx Xxx
Title:
Vice President
CONFIRMED
AND ACCEPTED, as of the date first above written:
GREENWICH
CAPITAL MARKETS, INC.
By: /s/
Xxxxxxx Xxx
Name:
Xxxxxxx Xxx
Title:
Vice President
XXXXXX
XXXXXX & COMPANY, INC.
By: /s/
Xxxxx X. Xxxxxxx
Name:
Xxxxx X. Xxxxxxx
Title:
Managing Director
SANDLER
X’XXXXX & PARTNERS, L.P.
By: /s/
Xxxxxx Xxxxxxxx
Name:
Xxxxxx Xxxxxxxx
Title:
An
Officer of the Corporation
CONFIRMED
AND ACCEPTED for purposes of Section 17,
as
of the
date first above written:
GREENWICH
CAPITAL FINANCIAL
PRODUCTS,
INC.
By: /s/
Xxxxxxx Xxx
Name:
Xxxxxxx Xxx
Title:
Vice President
SCHEDULE
I
Underwriting
Agreement dated March 14, 2006.
As
used
in this Agreement, the term “Registration
Statement”
refers
to the Registration Statement on Form S-3, File No. 333-127352 which was
declared effective on September 1, 2005.
Closing
Date: April 7, 2006.
Approximate
Pool Balance: $1,542,400,000
of
Mortgage Loans.
Cut-Off
Date: April
1,
2006.
Title
and
Description of Offered Certificates:
Soundview
Home Loan Trust 2006-OPT2 Asset-Backed Certificates, Series 2006-OPT2, Classes
designated on the following page:
|
Initial
Certificate Ratings
|
|||||
|
Class
|
Class Principal
Balance
|
Purchase
Price
Percentage
|
Pass-Through
Rate
|
Moody’s
|
S&P
|
|
A-1
|
$ 584,740,000
|
100%
|
Variable
Pass-Through Rate
|
Aaa
|
AAA
|
|
A-2
|
$ 295,730,000
|
100%
|
Variable
Pass-Through Rate
|
Aaa
|
AAA
|
|
A-3
|
$ 297,950,000
|
100%
|
Variable
Pass-Through Rate
|
Aaa
|
AAA
|
|
A-4
|
$
87,180,000
|
100%
|
Variable
Pass-Through Rate
|
Aaa
|
AAA
|
|
M-1
|
$ 108,800,000
|
100%
|
Variable
Pass-Through Rate
|
Aa2
|
AA+
|
|
M-2
|
$
31,200,000
|
100%
|
Variable
Pass-Through Rate
|
Aa3
|
AA
|
|
M-3
|
$
28,000,000
|
100%
|
Variable
Pass-Through Rate
|
A1
|
AA
|
|
M-4
|
$
27,200,000
|
100%
|
Variable
Pass-Through Rate
|
A2
|
AA-
|
|
M-5
|
$
25,600,000
|
100%
|
Variable
Pass-Through Rate
|
A3
|
A+
|
|
M-6
|
$
22,400,000
|
100%
|
Variable
Pass-Through Rate
|
Baa1
|
A
|
|
M-7
|
$
18,400,000
|
100%
|
Variable
Pass-Through Rate
|
Baa2
|
A-
|
|
M-8
|
$
15,200,000
|
100%
|
Variable
Pass-Through Rate
|
Baa3
|
BBB+
|
|
GCM
|
Sandler
X’Xxxxx
|
Xxxxxx
Xxxxxx
|
|
|
Class
A-1
|
$
526,266,000.00
|
$
29,237,000.00
|
$
29,237,000.00
|
|
Class
A-2
|
$
266,157,000.00
|
$
14,786,500.00
|
$
14,786,500.00
|
|
Class
A-3
|
$
268,155,000.00
|
$
14,897,500.00
|
$
14,897,500.00
|
|
Class
A-4
|
$
78,462,000.00
|
$
4,359,000.00
|
$
4,359,000.00
|
|
Class
M-1
|
$
97,920,000.00
|
$
5,440,000.00
|
$
5,440,000.00
|
|
Class
M-2
|
$
28,080,000.00
|
$
1,560,000.00
|
$
1,560,000.00
|
|
Class
M-3
|
$
25,200,000.00
|
$
1,400,000.00
|
$
1,400,000.00
|
|
Class
M-4
|
$
24,480,000.00
|
$
1,360,000.00
|
$
1,360,000.00
|
|
Class
M-5
|
$
23,040,000.00
|
$
1,280,000.00
|
$
1,280,000.00
|
|
Class
M-6
|
$
20,160,000.00
|
$
1,120,000.00
|
$
1,120,000.00
|
|
Class
M-7
|
$
16,560,000.00
|
$
920,000.00
|
$
920,000.00
|
|
Class
M-8
|
$
13,680,000.00
|
$
760,000.00
|
$
760,000.00
|
EXHIBIT
A
PRELIMINARY
TERM SHEET
EXHIBIT
B
A
legend
in substantially the following form must appear on each Free Writing
Prospectus:
The
issuer has filed a registration statement (including a base prospectus) with
the
SEC for the offering to which this free writing prospectus relates. Before
you
invest in this offering, you should read the base prospectus in that
registration statement and other documents the issuer has filed with the SEC
for
more complete information about the issuer and this offering. You may get these
documents for free by visiting XXXXX on the SEC Web site at xxxx://xxx.xxx.xxx.
Alternatively, RBS Greenwich Capital will arrange to send you the base
prospectus at no charge if you request it by calling 0-000-000-0000 or emailing
xxxxxxxxxxxxxxxxx@xxxxx.xxx.
This
free writing prospectus is being delivered to you solely to provide you with
information about the offering and to solicit an offer to purchase the offered
securities. Any such offer to purchase made by you will not be accepted and
will
not constitute a contractual commitment by you to purchase any of the securities
until we have accepted your offer to purchase such securities. Any such
commitment shall be subject to the conditions specified
below.
This
free writing prospectus is not required to contain all of the information that
is required to be included in the base prospectus and the prospectus supplement.
The information in this free writing prospectus is preliminary and is subject
to
completion or change. The information in this free writing prospectus, if
conveyed prior to the time of your commitment to purchase the offered
securities, supercedes any prior version of this free writing prospectus and
any
information contained in any prior similar free writing prospectus relating
to
these securities. If a preliminary prospectus is conveyed to you prior to your
commitment to purchase, that document supersedes all other information provided
to you concerning the offered securities.
This
free writing prospectus is not an offer to sell or a solicitation of an offer
to
buy these securities in any state where such offer, solicitation or sale is
not
permitted.
The
securities referred to in this free writing prospectus are being offered when,
as and if issued. The issuer is not obligated to issue any such securities
or
any similar securities, and all or a portion of the securities may not be issued
that have the characteristics described herein. The underwriters' obligation
to
deliver such securities is subject to the terms and conditions of the
underwriting agreement with the issuer and the availability of the securities
having the characteristics described herein. If, for any reason, the issuer
does
not deliver such securities, the underwriter will notify you, and neither the
issuer nor any underwriter will have any obligation to you to deliver all or
any
portion of the securities which you have committed to purchase, and there will
be no liability between us as a consequence of the
non-delivery.
For
asset-backed and mortgage-backed securities: Certain of the information
contained herein may be based on numerous assumptions (including preliminary
assumptions about the pool assets and structure), which may not be specifically
identified as assumptions in the information. Any such information or
assumptions are subject to change. The information in this free writing
prospectus may reflect assumptions specifically requested by you. If so, prior
to the time of your commitment to purchase, you should request updated
information based on any assumptions specifically required by
you.
Any
legends, disclaimers or other notices that may appear below or on any electronic
communication to which this free writing prospectus is attached which state
that
(1) these materials do not constitute an offer (or a solicitation of an offer),
(2) no representation is made as to the accuracy or completeness of these
materials and that these materials may not be updated or (3) these materials
may
be confidential are not applicable to this communication and should be
disregarded. Such legends, disclaimers or other notices have been automatically
generated as a result of this communication having been sent via Bloomberg
or
another system.
EXHIBIT
C
The
Depositor has been advised by the Underwriters that they propose initially
to
offer the Offered Certificates of each class to the public in Europe and the
United States.
Until
the
distribution of the Offered 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 Offered Certificates. As an exception to these rules,
the
Underwriters are permitted to engage in certain transactions that stabilize
the
price of the Offered Certificates. Such transactions consist of bids or
purchases for the purpose of pegging, fixing or maintaining the price of the
Offered 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.
None
of
the Depositor nor any Underwriter 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 Offered Certificates. In addition, none of the
Depositor nor any Underwriter 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 the Underwriters that they intend to make a market
in the Offered Certificates but the Underwriters have no obligation to do so.
There can be no assurance that a secondary market for the Offered Certificates
will develop or, if it does develop, that it will continue.
The
Depositor has agreed to indemnify the Underwriters against, or make
contributions to the Underwriters with respect to, certain liabilities,
including liabilities under the Securities Act of 1933, as amended.
LEGAL
MATTERS
Certain
legal matters with respect to the Offered Certificates will be passed upon
for
the Depositor and the Underwriters by Xxxxxxx Xxxxxxxx & Xxxx
llp,
New
York, New York.
RATINGS
It
is a
condition of the issuance of the Certificates that the Offered Certificates
receive the following ratings at least as high as the following ratings from
Standard & Poor’s, a division of The XxXxxx-Xxxx Companies, Inc. (“S&P”)
and Xxxxx’x Investors Service, Inc. (“Xxxxx’x ” and collectively with S&P,
the “Rating Agencies”):
|
S&P
|
Xxxxx’x
|
|
|
A-1
|
AAA
|
Aaa
|
|
A-2
|
AAA
|
Aaa
|
|
A-3
|
AAA
|
Aaa
|
|
A-4
|
AAA
|
Aaa
|
|
M-1
|
AA+
|
Aa2
|
|
M-2
|
AA
|
Aa3
|
|
M-3
|
AA
|
A1
|
|
M-4
|
AA-
|
A2
|
|
M-5
|
A+
|
A3
|
|
M-6
|
A
|
Baa1
|
|
M-7
|
A-
|
Baa2
|
|
M-8
|
BBB+
|
Baa3
|
A
securities rating addresses the likelihood of the receipt by a certificateholder
of distributions on the Mortgage Loans. The rating takes into consideration
the
characteristics of the Mortgage Loans and the structural, legal and tax aspects
associated with the certificates. The ratings on the Offered Certificates do
not, however, constitute statements regarding the likelihood or frequency of
prepayments on the Mortgage Loans, the payment of
