ALLIANCE SECURITIES CORP. Mortgage Pass-Through Certificates, Series 2007-OA1 Class A-1, Class A-2, Class A-3, Class M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class M-6, Class M-7, Class M-8 and Class M-9 Certificates UNDERWRITING AGREEMENT
ALLIANCE
SECURITIES CORP.
Mortgage
Pass-Through Certificates, Series 2007-OA1
Class
A-1, Class A-2, Class A-3, Class M-1, Class M-2, Class M-3, Class M-4, Class
M-5, Class M-6, Class M-7, Class M-8 and Class M-9 Certificates
| May 25, 2007 |
Barclays
Capital Inc.
000
Xxxx
Xxxxxx
5th
Floor
New
York,
NY 10166
Ladies
and Gentlemen:
Alliance
Securities Corp., a Delaware corporation (the “Company”), proposes to sell to
you (the “Underwriter”) the amounts set forth in Schedule I attached hereto of
Mortgage Pass-Through Certificates, Series 2007-OA1 Class A-1, Class A-2, Class
A-3, Class M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7, Class M-8 and Class M-9 Certificates (collectively, the “Certificates”)
having the aggregate principal amounts and Pass-Through Rates as set forth
in
Schedule I. The Certificates, together with the Class CE, Class R and Class
R-X
Certificates (together, the “Non-Offered Certificates”) of the same series, will
evidence the entire beneficial interest in the Trust Fund (as defined in the
Pooling and Servicing Agreement referred to below), consisting primarily of
a
pool (the “Pool”) of 30-year pay option, adjustable rate first lien mortgage
loans (the “Mortgage Loans”) as described in the Free Writing Prospectus and the
Prospectus Supplement (as hereinafter defined) to be sold by the
Company.
The
Certificates will be issued pursuant to a pooling and servicing agreement,
dated
as of May 1, 2007 (the “Pooling and Servicing Agreement”), among the Company, as
depositor, Alliance Bancorp, as servicer, Xxxxx Fargo Bank, N.A, as master
servicer (“Xxxxx Fargo” or the “Master Servicer”), GMAC Mortgage, LLC, as
subservicer and back-up servicer, Deutsche Bank National Trust Company, as
trustee (the “Trustee”) and Xxxxx Fargo, as securities
administrator. The Certificates are described more fully in the Base
Prospectus, the Free Writing Prospectus and the Prospectus Supplement (each
as
hereinafter defined).
The
Certificates will represent ownership interests in the trust fund (the “Trust
Fund”) created by the Pooling and Servicing Agreement. The Trust Fund will
consist of the Mortgage Loans.
Alliance
Bancorp sold the Mortgage Loans to the Company pursuant to a Mortgage Loan
Purchase Agreement dated as of May 30, 2007 (the “Mortgage Loan Purchase
Agreement”) between Alliance Bancorp and the Company.
1. Representations,
Warranties and Covenants.
1.1 As
of the
Closing Date or such other date specified below, both Alliance Bancorp and
the
Company, represent and warrant to, and agree with the Underwriter as
follows:
(a) The
Company has filed with the Securities and Exchange Commission (the “Commission”)
a registration statement (No. 333-135166) on Form S-3 for the registration
under
the Securities Act of 1933, as amended (the “Act”), of Mortgage Pass-Through
Certificates (issuable in series), including the Certificates, which
registration statement has become effective, and a copy of which, as amended
to
the date hereof, has heretofore been delivered to the
Underwriter. The Company meets the requirements and all other
conditions have been satisfied for the use of Form S-3 under the Act. The
Company proposes to file with the Commission pursuant to Rule 424(b) under
the
rules and regulations of the Commission under the Act (the “1933 Act
Regulations”) a prospectus supplement dated May 29, 2007 (the “Prospectus
Supplement”), to the prospectus dated May 25, 2007 (the “Base Prospectus”),
relating to the Certificates and the method of distribution
thereof. Such registration statement (No.333-135166) including
exhibits thereto and any information incorporated therein by reference, as
amended at the date hereof, is hereinafter called the “Registration Statement”;
and the Base Prospectus and the Prospectus Supplement and any information
incorporated therein by reference (including any static pool data referred
to
under the caption “Static Pool Information” therein, regardless of whether it is
a part of the Registration Statement or Prospectus under Rule 1105(d) of
Regulation AB of the 1933 Act Regulations), together with any amendment thereof
or supplement thereto authorized by the Company on or prior to May 30, 2007
(the
“Closing Date”) for use in connection with the offering of the Certificates, are
hereinafter called the “Prospectus”. The Company prepared a Free
Writing Prospectus containing substantially all information that will appear
in
the Prospectus Supplement and minus specific sections including the “Method of
Distribution” section (such Free Writing Prospectus, together with the Base
Prospectus, the “Definitive Free Writing Prospectus”).
(b) The
Registration Statement has become effective and no stop order suspending the
effectiveness of the Registration Statement is in effect, no proceedings for
such purpose are pending before or threatened by the Commission, and the
Registration Statement as of the effective date (the “Effective Date”, as
defined in this paragraph), and the Prospectus, as of the date of the Prospectus
Supplement, complied in all material respects with the applicable requirements
of the Act and the 1933 Act Regulations. The Registration Statement, as of
the
Effective Date, did not contain any untrue statement of a material fact and
did
not omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading, and the Prospectus, as of the
date of the Prospectus Supplement, did not, and as of the Closing Date will
not,
contain an untrue statement of a material fact and did not and will not omit
to
state a material fact necessary in order to make the statements therein, in
the
light of the circumstances under which they were made, not misleading; provided,
however, that neither the Company nor Alliance Bancorp makes any representations
or warranties as to any information contained in or omitted from the first
and third sentence of the second paragraph of the Prospectus set forth under
the
caption “Method of Distribution” relating to the Certificates (the
“Underwriter’s Information”). In addition, the Definitive Free Writing
Prospectus, as of the date thereof and as of the time of each Contract of Sale
occurring prior to the time that Prospectus Supplement first becomes available
for use by the Underwriter, did not contain an untrue statement of a material
fact and did not omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. The Effective Date shall mean the earlier of
the date by which the Prospectus Supplement is first used and the time of the
first Contract of Sale (as defined in Section 4.3) to which such Prospectus
Supplement relates. As used herein, “Pool Information” means all loan
level data with respect to the characteristics of the Mortgage Loans and
administrative and servicing fees, as provided by or on behalf of the Company
or
Alliance Bancorp to the Underwriter. The Company acknowledges that the
Underwriter’s Information constitutes the only information furnished in writing
by you or on your behalf for use in connection with the preparation of the
Registration Statement or the Prospectus, and you confirm that the Underwriter’s
Information is correct with respect to you and the Certificates you
underwrite.
(c) Each
of
Alliance Bancorp and the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
California, with respect to Alliance Bancorp, and the State of Delaware, with
respect to the Company, and has the requisite corporate power and authority
to
own its properties and to conduct its business as presently conducted by it
and,
to enter into and perform its obligations under this Agreement, the Pooling
and
Servicing Agreement and the Mortgage Loan Purchase Agreement.
(d) The
Company is not, as of the date upon which it delivers the Definitive Free
Writing Prospectus, an “ineligible issuer”, as such term is defined in Rule 405
of the 1933 Act Regulations.
(e) Each
of
Alliance Bancorp and the Company is not in violation of its Certificate of
Incorporation or By-Laws or any agreement the violation of which would have
a
material adverse effect on the Company.
(f) The
Certificates and the Pooling and Servicing Agreement conform in all material
respects to the description thereof contained in the Definitive Free Writing
Prospectus and the Prospectus and the representations and warranties of the
Company in the Pooling and Servicing Agreement and the Mortgage Loan Purchase
Agreement will be true and correct in all material respects.
(g) Each
of
the Certificates, when validly executed, authenticated, issued and delivered
in
accordance with the Pooling and Servicing Agreement and paid for in accordance
with this Agreement, will be duly and validly issued and outstanding and
entitled to the benefits and security afforded by the Pooling and Servicing
Agreement and will constitute legal, valid and binding obligations of the trust
enforceable in accordance with its terms and the terms of the Pooling and
Servicing Agreement, except as the same may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting enforcement of
creditors' rights generally and by the general principles of
equity.
(h) This
Agreement has been duly authorized, executed and delivered by both Alliance
Bancorp and the Company. The Pooling and Servicing Agreement has been, and
as of
the Closing Date, each of the other agreements entered into in connection with
the issuance or delivery of the Certificates or any of the transactions
contemplated herein (together with the Mortgage Loan Purchase Agreement, the
Pooling and Servicing Agreement and this Agreement, the “Transaction Documents”)
to which the Company, or Alliance Bancorp, as applicable, is a party, will
have
been, duly authorized, executed and delivered by the Company, or Alliance
Bancorp, as applicable, and will conform in all material respects to the
descriptions thereof contained in the Definitive Free Writing Prospectus and
the
Prospectus. Each of the Certificates, when validly executed, authenticated,
issued and delivered in accordance with the Pooling and Servicing Agreement
and
paid for in accordance with this Agreement, will be duly and validly issued
and
outstanding and entitled to the benefits and security afforded by the Pooling
and Servicing Agreement and will constitute legal, valid and binding obligations
of the trust enforceable in accordance with its terms and the terms of the
Pooling and Servicing Agreement, except as the same may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting
enforcement of creditors' rights generally and by the general principles of
equity and, assuming the valid execution and delivery thereof by the other
parties thereto, each Transaction Document (other than this Agreement) to which
Alliance Bancorp or the Company is a party will constitute a legal, valid and
binding agreement of the Company, or Alliance Bancorp, as applicable,
enforceable in accordance with its terms, except as the same may be limited
by
bankruptcy, insolvency, reorganization or other similar laws affecting
creditors’ rights generally and by general principles of equity.
(i) None
of
the issuance, delivery or sale of the Certificates, the execution and delivery
by Alliance Bancorp or the Company of any of the Transaction Documents, or
the
consummation of any other of the transactions contemplated herein, nor
compliance with the provisions of the Transaction Documents, will conflict
with
or result in the breach of any material term or provision of the certificate
of
incorporation or by-laws of Alliance Bancorp or the Company, and, except as
disclosed in the Definitive Free Writing Prospectus and the Prospectus, Alliance
Bancorp and the Company are not in breach or violation of or in default (nor
has
an event occurred which with notice or lapse of time or both would constitute
a
default, except as disclosed in the Definitive Free Writing Prospectus and
the
Prospectus) under the terms of (i) any indenture, contract, lease, mortgage,
deed of trust, note, agreement or other evidence of indebtedness or other
agreement, obligation or instrument to which Alliance Bancorp or the Company
is
a party or by which it or its properties are bound, or (ii) any law, decree,
order, rule or regulation applicable to Alliance Bancorp or the Company of
any
court or supervisory, regulatory, administrative or governmental agency, body
or
authority, or arbitrator having jurisdiction over Alliance Bancorp or the
Company or its respective properties, the default in or the breach or violation
of which would have a material adverse effect on Alliance Bancorp or the Company
or the Certificates or on the ability of Alliance Bancorp or the Company to
perform its respective obligations under the Transaction Documents to which
it
is a party; and neither the delivery of the Certificates, nor the execution
and
delivery of the Transaction Documents nor the consummation of any other of
the
transactions contemplated herein, nor the compliance with the provisions of
such
Transaction Documents will result in such a breach, violation or default which
would have such a material adverse effect.
(j) No
filing
or registration with, notice to, or consent, approval, authorization or order
or
other action of any court or governmental authority or agency is required for
the consummation by Alliance Bancorp and the Company of the transactions
contemplated by the Transaction Documents to which it is a party (other than
as
required under Blue Sky laws or state securities laws, as to which no
representations and warranties are made by Alliance Bancorp or the Company),
except such as have been, or will have been obtained prior to the Closing Date,
and such recordations of the assignment to the Trustee of the mortgages securing
the Mortgage Loans (to the extent such recordations are required pursuant to
the
Pooling and Servicing Agreement) that have not yet been completed.
(k) There
is
no action, suit or proceeding before or by any court, administrative or
governmental agency now pending to which Alliance Bancorp or the Company is
a
party, or to the best knowledge of Alliance Bancorp or the Company, threatened
against Alliance Bancorp or the Company, which could reasonably interfere with
or materially and adversely affect (i) the consummation of the transactions
contemplated in the Transaction Documents, (ii) the performance by Alliance
Bancorp or the Company of its obligations under, or the validity or
enforceability of, the Pooling and Servicing Agreement or the Certificates
or
(iii) the federal income tax attributes of the Certificates as described in
the
Definitive Free Writing Prospectus and the Prospectus.
(l) At
the
time of execution and delivery of the Pooling and Servicing Agreement, (1)
the
Company will own the Mortgage Loans being transferred and assigned by it to
the
Trustee pursuant to the Pooling and Servicing Agreement, free and clear of
any
lien, mortgage, pledge, charge, encumbrance, adverse claim or other security
interest (collectively, “Liens”), except to the extent permitted in the Pooling
and Servicing Agreement, and will not have assigned to any person other than
the
Trustee any of its right, title or interest in its Mortgage Loans, (2) the
Company will have the power and authority to transfer and assign the Trust
Fund
to the Trustee and to transfer the Certificates to the Underwriter and will
have
duly authorized such action, (3) upon execution and delivery by the Company
to
the Trustee of the Pooling and Servicing Agreement, and delivery of the
Certificates to the Company, the Trustee will have a valid, perfected ownership
interest in the Mortgage Loans of first priority in the Trust Fund free of
Liens
other than Liens permitted by the Pooling and Servicing Agreement and (4) upon
payment and delivery of the Certificates to the Underwriter, the Underwriter
will acquire ownership of the Certificates, free of Liens other than Liens
created or granted by the Underwriter.
(m) Any
taxes, fees and other governmental charges in connection with the execution,
delivery and issuance of the Transaction Documents and the Certificates have
been or will be paid by Alliance Bancorp or the Company at or prior to the
Closing Date, except for fees for recording assignments of the mortgages
securing the Mortgage Loans to the Trustee pursuant to the Pooling and Servicing
Agreement that have not yet been completed, which fees will be paid by or on
behalf of Alliance Bancorp in accordance with and if required by the Pooling
and
Servicing Agreement.
(n) The
Company possesses all certificates, licenses, authorizations and permits issued
by the appropriate State, Federal or foreign regulatory agencies or bodies
necessary to conduct the business now conducted by it and as described in the
Definitive Free Writing Prospectus and the Prospectus, and the Company has
not
received notice of any proceedings relating to the revocation or modification
of
any such license, certificate, authority or permit which if decided adversely
to
the Company would, singly or in the aggregate, materially and adversely affect
the conduct of its business, operations or financial conditions.
(o) Alliance
Bancorp or any back-up servicer or subservicer who will be servicing any
Mortgage Loans pursuant to the Pooling and Servicing Agreement is qualified
to
do business and possesses all necessary certificates, licenses and permits
in
all jurisdictions in which its activities as back-up servicer, servicer or
subservicer of the Mortgage Loans serviced by it require such qualifications,
certificates, licenses or permits except where failure to be so qualified or
to
obtain such certificates, licenses or permits will not have a material adverse
effect on such servicing activities.
(p) Neither
the Company nor the Trust Fund is an “investment company” or an entity
“controlled” by an “investment company,” as such terms are defined in the
Investment Company Act of 1940, as amended.
(q) Since
the
respective dates as of which information is given in the Definitive Free Writing
Prospectus and the Prospectus, there has not been any material adverse change
in
the general affairs, management, financial condition, or results of operations
of Alliance Bancorp or the Company, otherwise than as set forth or contemplated
in the Definitive Free Writing Prospectus and the Prospectus as supplemented
or
amended as of the Closing Date.
(r) The
representations and warranties set forth in Section 3.1 of the Mortgage Loan
Purchase Agreement are true and correct in all material respects.
(s) As
of
their respective dates, the Definitive Free Writing Prospectus and the
Prospectus do not include any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein,
in
light of the circumstances under which they were made, not
misleading.
(t) At
the
time of the assignment of the Mortgage Loans pursuant to the Pooling and
Servicing Agreement, the Company had good title to, and was the sole owner
of,
each Mortgage Loan, free and clear of any pledge, lien, encumbrance or security
interest and the Company had the power and authority to assign the Mortgage
Loans to Alliance Bancorp Trust, Series 2007-OA1 (the “Trust”) and the Trust
will have been assigned all right, title and interest in, to and under the
Mortgage Loans.
(u) So
long as the Certificates are outstanding, the Company will furnish or cause
to
be furnished to the Underwriter copies of all reports or other communications
(financial or other) furnished to holders of the Certificates.
(v) The
final
computer tape of the Mortgage Loans created with actual principal balances
as of
the close of business on April 30, 2007 (giving effect to scheduled payments
of
principal and interest due May 1, 2007, whether or not those scheduled payments
have been made) and made available to you by Alliance Bancorp and the Company,
was complete and accurate as of the date thereof and includes a description
of
the Mortgage Loans that are described in the Definitive Free Writing Prospectus
and the Prospectus Supplement.
(w) All
actions required to be taken by Alliance Bancorp and the Company as a condition
to the offer and sale of the Certificates as described herein or the
consummation of any of the transactions described in the Definitive Free Writing
Prospectus or the Prospectus have been or, prior to the Closing Date, will
be
taken.
(x) The
Certificates are “asset backed securities” within the meaning of, and satisfy
the requirements for use of, Form S-3 under the Act.
1.2 The
Underwriter represents and warrants to and agrees with Alliance Bancorp and
the
Company that:
(a) As
of the
date hereof and as of the Closing Date, the Underwriter has complied with all
of
its obligations hereunder. The Free Writing Prospectuses, other than the
Definitive Free Writing Prospectus, provided by the Underwriter to the Company
pursuant to Section 4.4 constitute a complete set of all such Free Writing
Prospectuses furnished to any investor by the Underwriter in connection with
the
offering of any Certificates, other than any Underwriter Derived
Information.
(b) Reserved.
(c) Reserved.
2. Purchase
and Sale. Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees to sell
to
the Underwriter, and the Underwriter agrees to purchase from the Company, the
Certificates for an amount equal to $302,059,339.31.
3. Delivery
and Payment. Payment for the Certificates shall be made by wire transfer of
immediately available funds to an account designated by the Company, and
delivery of the Certificates shall be made at the office of Xxxxxxx Xxxxxxxx
& Xxxx LLP. Delivery of and payment for the Certificates shall be
made at 10:00 a.m., New York City time, on May 30, 2007, or such later date
as
the Underwriter shall designate, which date and time may be postponed by
agreement among the Underwriter and the Company (such date and time of delivery
and payment for the Certificates being herein called the “Closing Date”).
Delivery of the Certificates shall be made to the Underwriter through the
Depository Trust Company (“DTC”) against payment by you of the purchase price
thereof to or upon the order of the Company by wire transfer of immediately
available funds.
4. Offering
by Underwriter.
4.1 It
is
understood that the Underwriter proposes to offer the Certificates for sale
to
the public as set forth in the Prospectus and that the Underwriter will not
offer, sell or otherwise distribute the Certificates (except for the sale
thereof in exempt transactions) in any state in which the Certificates are
not
exempt from registration under Blue Sky laws or state securities laws. Prior
to
the date hereof, you have not offered, pledged, sold, disposed of or otherwise
transferred any Certificate or any security backed by the Mortgage Loans, any
interest in any Certificate or such security or any Mortgage Loan except as
set
forth in Section 4.2.
4.2 It
is
understood that the Underwriter will solicit offers to purchase the Certificates
as follows:
(a) Prior
to
the time you have received the Definitive Free Writing Prospectus you may,
in
compliance with the provisions of this Agreement, solicit offers to purchase
Certificates; provided, that you shall not accept any such offer to purchase
a
Certificate or any interest in any Certificate or otherwise enter into any
Contract of Sale for any Certificate, any interest in any Certificate or any
Mortgage Loan prior to the investor’s receipt of the Definitive Free Writing
Prospectus.
(b) Any
Free
Writing Prospectus (other than the Definitive Free Writing Prospectus) relating
to the Certificates used by the Underwriter in compliance with the terms of
this
Agreement prior to the time the Underwriter has entered into a Contract of
Sale
for Certificates shall prominently set forth the following statement or its
equivalent:
The
information in this free writing prospectus is preliminary, and will be
superseded by the Definitive Free Writing Prospectus. This free
writing prospectus is being delivered to you solely to provide you with
information about the offering of the Certificates referred to in this free
writing prospectus and to solicit an offer to purchase the Certificates, when,
as and if issued. Any such offer to purchase made by you will not be
accepted and will not constitute a contractual commitment by you to purchase
any
of the Certificates until we have accepted your offer to purchase
Certificates. We will not accept any offer by you to purchase
Certificates, and you will not have any contractual commitment to
purchase any of the Certificates until after you have received the Definitive
Free Writing Prospectus. You may withdraw your offer to purchase Certificates
at
any time prior to our acceptance of your offer.
“Written
Communication” has the same meaning as that term is defined in Rule 405 of the
1933 Act Regulations.
(c) Any
Free
Writing Prospectus relating to Certificates and used by the Underwriter in
connection with marketing the Certificates, including the Definitive Free
Writing Prospectus, shall prominently set forth the following statement or
its
equivalent:
The
Certificates referred to in these materials are being sold when, as and if
issued. You are advised that Certificates may not be issued that have
the characteristics described in these materials. Our obligation to
sell such Certificates to you is conditioned on the mortgage loans and
certificates having the characteristics described in these
materials. If for any reason we do not deliver such Certificates, 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 Certificates which you
have committed to purchase, and none of the issuer nor any underwriter will
be
liable for any costs or damages whatsoever arising from or related to such
non-delivery.
4.3 It
is
understood that you will not enter into a Contract of Sale with any investor
until the investor has received the Definitive Free Writing
Prospectus. For purposes of this Agreement, Contract of Sale has the
same meaning as in Rule 159 of the 1933 Act Regulations. The
Definitive Free Writing Prospectus shall prominently set forth the following
statement or its equivalent:
This
Definitive Free Writing Prospectus supersedes the information in any free
writing prospectus previously delivered in connection with this offering, to
the
extent that this Definitive Free Writing Prospectus is inconsistent with any
information in any free writing prospectus delivered in connection with this
offering.
4.4 It
is
understood that you may prepare and provide to prospective investors certain
Free Writing Prospectuses (as defined below), subject to the following
conditions:
(a) Unless
preceded or accompanied by a prospectus satisfying the requirements of Section
10(a) of the Act, 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 either (i) is made in reliance
on Rule 134 under the Act, (ii) constitutes a prospectus satisfying the
requirements of Rule 430B under the Act, (iii) is the Definitive Free Writing
Prospectus, or (iv) both (1) constitutes a Free Writing Prospectus (as defined
below) used in reliance on Rule 164 and (2) includes only information that
is
within the definition of ABS Informational and Computational Materials as
defined in Item 1101 of Regulation AB.
(b) The
Underwriter shall comply in all material respects with all applicable laws
and
regulations in connection with the use of Free Writing Prospectuses, including
but not limited to Rules 164 and 433 of the 1933 Act Regulations and all
Commission guidance relating to Free Writing Prospectuses, including but not
limited to Commission Release No. 33-8591.
(c) For
purposes hereof, “Free Writing Prospectus” shall have the meaning given such
term in Rules 405 and 433 of the 1933 Act Regulations. “Issuer
Information” shall mean information included in a Free Writing Prospectus that
both (i) is within the types of information specified in clauses (1) to (5)
of
footnote 271 of Commission Release No. 33-8591 (Securities Offering Reform)
as
shown in Exhibit D hereto and (ii) has been either prepared by, or has been
reviewed and approved by, the Company as evidenced by oral, electronic or
written communication by it or through its attorneys. “Underwriter
Derived Information” shall refer to information of the type described in clause
(5) of such footnote 271 when prepared by an Underwriter.
(d) All
Free
Writing Prospectuses provided to prospective investors, whether or not filed
with the Commission, shall bear a legend on each page including the following
statement or its equivalent:
THE
DEPOSITOR HAS FILED A REGISTRATION STATEMENT (INCLUDING A PROSPECTUS) WITH
THE
SEC FOR THE OFFERING TO WHICH THIS COMMUNICATION RELATES. BEFORE YOU
INVEST, YOU SHOULD READ THE PROSPECTUS IN THAT REGISTRATION STATEMENT AND OTHER
DOCUMENTS THE ISSUER HAS FILED WITH THE SEC FOR MORE COMPLETE INFORMATION ABOUT
THE ISSUER AND THE OFFERING. YOU MAY GET THESE DOCUMENTS AT NO CHARGE
BY VISITING XXXXX ON THE SEC WEB SITE AT XXX.XXX.XXX. ALTERNATIVELY,
THE ISSUER, ANY UNDERWRITER OR ANY DEALER PARTICIPATING IN THE OFFERING WILL
ARRANGE TO SEND YOU THE PROSPECTUS AT NO CHARGE IF YOU REQUEST IT BY CALLING
TOLL-FREE 1–000-000-0000.
The
Company shall have the right to require additional specific legends or notations
to appear on any Free Writing Prospectus, the right to require changes
regarding the use of terminology and the right to determine the types of
information appearing therein.
(e) The
Underwriter shall have delivered to the Company, a reasonable and customary
time
prior to the proposed date of first use thereof, (i) any Free Writing Prospectus
prepared by or on behalf of the Underwriter that contains any information that,
if reviewed and approved by the Company, would be Issuer Information, and (ii)
any Free Writing Prospectus or portion thereof that contains only a description
of the final terms of the Certificates after such terms have been established
for all classes of Certificates being publicly offered; provided, however,
that
the Underwriter shall have no obligation to deliver any Free Writing Prospectus
which contains only Underwriter Derived Information. To facilitate
filing to the extent required by Section 5.10 or 5.11, as applicable, all
Underwriter Derived Information shall be set forth in a document separate from
the document including Issuer Information. All Free Writing
Prospectuses prepared by the Underwriter that are required to be delivered
to
the Company under this subsection (e), (i) must be approved by the Company
before the Underwriter provides the Free Writing Prospectus to investors
pursuant to the terms of this Agreement (such approval to be evidenced as set
forth in Section 4.4(c)(ii)), and (ii) shall be provided by the Underwriter
to
the Company, for filing as provided in Section 5.10 in the format as required
by
the Company.
(f) In
the
event that the Underwriter possesses actual knowledge that, as of the date
on
which an investor entered into an agreement to purchase any Certificates, any
Free Writing Prospectus prepared by or on behalf of the Underwriter and
delivered to such investor contained any untrue statement of a material fact
or
omitted to state a material fact necessary in order to make the statements
contained therein, in light of the circumstances under which they were made,
not
misleading, unless such statement was corrected or added to the Definitive
Free
Writing Prospectus (such Free Writing Prospectus, a “Defective Free Writing
Prospectus”), the Underwriter shall notify the Company thereof as soon as
practical but in any event within one business day after discovery.
(g) If
the
Underwriter does not provide any Free Writing Prospectuses to the Company
pursuant to subsection (e) above, the Underwriter shall be deemed to have
represented, as of the Closing Date, that it did not provide any prospective
investors with any information in written or electronic form in connection
with
the offering of the Certificates that is required to be filed with the
Commission by the Company as a Free Writing Prospectus (other than the
Definitive Free Writing Prospectus) in accordance with the 1933 Act Regulations.
Information not required to be filed shall include any Free Writing Prospectus
containing solely Underwriter Derived Information.
(h) In
the
event of any delay in the delivery by the Underwriter to the Company of any
Free
Writing Prospectuses required to be delivered in accordance with subsection
(e)
above, or in the delivery of the accountant’s comfort letter in respect thereof,
the Company shall have the right to delay the release of the Prospectus to
investors or to the Underwriter, to delay the Closing Date and to take other
appropriate actions in each case as necessary in order to allow the Company
to
comply with its agreement set forth in Section 5.10 to file the Free Writing
Prospectuses by the time specified therein.
(i) The
Underwriter covenants with the Company that after the final Prospectus is
available the Underwriter shall not distribute any written information
concerning the Certificates to a prospective investor unless such information
is
preceded or accompanied by the final Prospectus.
5. Agreements. Alliance
Bancorp and the Company agrees with the Underwriter that:
5.1 The
Company will promptly advise the Underwriter (i) when any amendment to the
Registration Statement has become effective or any revision of or supplement
to
the Prospectus has been so filed (unless such amendment, revision or supplement
does not relate to the Certificates or the trust), (ii) of any request by the
Commission for any amendment of the Registration Statement or the Prospectus
or
for any additional information (unless such request for additional information
does not relate to the Certificates or the trust), (iii) of any written
notification received by the Company of the suspension of qualification of
the
Certificates for sale in any jurisdiction or the initiation or threatening
of
any proceeding for such purpose and (iv) of the issuance by the Commission
of
any stop order suspending the effectiveness of the Registration Statement or
the
institution or, to the knowledge of the Company, the threatening of any
proceeding for that purpose. The Company will not file an amendment
to the Registration Statement or supplement to the Prospectus (if such amendment
or supplement relates to the Certificates) unless the Company has furnished
the
Underwriter with a copy of such amendment for its review prior to such
filing. The Company will use its best efforts to prevent the issuance
of any such stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
5.2 The
Company will cause the Prospectus Supplement to be transmitted to the Commission
for filing pursuant to Rule 424(b) under the Act by means reasonably calculated
to result in filing with the Commission within the time period required by
said
rule. The Company will cause the Prospectus Supplement to be transmitted to
the
Commission for filing no later than the close of business on the business day
prior to the Closing Date.
5.3 If,
during the period after the first date of the public offering of the
Certificates in which a prospectus relating to the Certificates is required
to
be delivered under the Act, any event occurs as a result of which the Prospectus
would include any untrue statement of a material fact required to be stated
therein, in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not misleading,
or if it shall be necessary to amend or supplement the Prospectus to comply
with
the Act or the 1933 Act Regulations or the respective rules thereunder, the
Company promptly will notify the Underwriter and will prepare and furnish,
at
its own expense, to the Underwriter, either amendments or supplements to the
Prospectus so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the Prospectus
is
delivered to a purchaser, be misleading or so that the Prospectus will comply
with law.
5.4 If
the
Company or the Underwriter reasonably determines that any Written Communication
contains an untrue statement of material fact or omits to state a material
fact
necessary to make the statements, in light of the circumstances under which
they
were made, not misleading at the time that a Contract of Sale was entered into,
in the case of such a Written Communication, during the time a prospectus was
required to be delivered, either the Company or the Underwriter may prepare
corrective information, with notice to the other party, and the Underwriter
shall deliver such information in a manner reasonably acceptable to both
parties, to any person with whom a Contract of Sale was entered into, and such
information shall provide any such person with the following:
(a) Adequate
disclosure of the contractual arrangement;
(b) Adequate
disclosure of the person’s rights under the existing Contract of Sale at the
time termination is sought;
(c) Adequate
disclosure of the new information that is necessary to correct the misstatements
or omissions in the information given at the time of the original Contract
of
Sale; and
(d) A
meaningful ability to elect to terminate or not terminate the prior Contract
of
Sale and to elect to enter into or not enter into a new Contract of
Sale.
5.5 The
Company will furnish to the Underwriter, without charge, a copy of the
Registration Statement (including exhibits thereto) and, so long as delivery
of
a prospectus by the Underwriter or dealer may be required by the Act, as many
copies of the Prospectus, any documents incorporated by reference therein and
any amendments and supplements thereto as the Underwriter may reasonably
request; provided, however, that you will only deliver the prospectus to those
investors that request a paper copy thereof.
5.6 The
Company agrees, so long as the Certificates shall be outstanding, to deliver
to
the Underwriter the annual statements as to compliance delivered to the Trustee
pursuant to Section 3.19 of the Pooling and Servicing Agreement and the annual
statement of a firm of independent public accountants furnished to the Trustee
pursuant to Section 3.20 of the Pooling and Servicing Agreement, as soon as
such
statements are furnished to the Company.
5.7 The
Company will endeavor to arrange for the qualification of the Certificates
for
sale under the laws of such jurisdictions as the Underwriter may reasonably
designate and will maintain such qualification in effect so long as required
for
the initial distribution of the Certificates and to determine the legality
of
the Certificates for purchase by institutional investors; provided, however,
that the Company shall not be required to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action that would
subject it to general or unlimited service of process in any jurisdiction where
it is not now so subject.
5.8 If
the
transactions contemplated by this Agreement are consummated, Alliance Bancorp
and the Company will pay or cause to be paid all expenses incident to the
performance of the obligations of the Company under this Agreement, including,
without limitation, (a) costs and taxes incident to the authorization, sale
and
delivery of the Certificates, (b) costs incident to preparation, printing and
filing or otherwise reproducing the Registration Statement (including any
amendments or exhibits thereto), the Prospectus, the other Transaction Documents
and the Certificates, (c) fees and expenses of the Trustee and its counsel,
(d)
the fees and expenses of KMPG in connection with any letter(s) delivered
pursuant to Section 6.9 and (e) fees and expenses of counsel or special counsel
to the Company, and will reimburse the Underwriter for any expenses (including
reasonable fees and disbursements of counsel) reasonably incurred by the
Underwriter in connection with qualification of the Certificates for sale and
determination of their eligibility for investment under the laws of such
jurisdictions as the Underwriter has reasonably requested pursuant to Section
5.7 above and the printing of memoranda relating thereto, for any fees charged
by investment rating agencies for the rating of the Certificates, for expenses
incurred in distributing the Definitive Free Writing Prospectus and the
Prospectus (including any amendments and supplements thereto) to the Underwriter
and for any costs and expenses (including without limitation any damages or
other amounts payable in connection with legal or contractual liability)
associated with the reforming of any Contract of Sale or related actions taken
by the Underwriter pursuant to Section 5.4 to the extent caused by a breach
of
the representation contained in Section 1.1(b) relating to the Definitive Free
Writing Prospectus or caused by an error in the Pool Information. Except as
herein provided, the Underwriter shall be responsible for paying for (a) the
fees and expenses of KPMG in connection with any letter other than any letter
delivered pursuant to Section 6.9 and (b) all costs and expenses incurred by
the
Underwriter, including the fees and disbursements of its counsel, in connection
with the purchase and sale of the Certificates.
5.9 If,
during the period after the Closing Date in which a prospectus relating to
the
Certificates is required to be delivered under the Act, the Company receives
notice that a stop order suspending the effectiveness of the Registration
Statement or preventing the offer and sale of the Certificates is in effect,
the
Company will advise the Underwriter of the issuance of such stop
order. Upon receipt of notice of such stop order, the Underwriter
shall cease all offers and sales of the Certificates.
5.10 The
Company shall file, to the extent required to be filed, any Free Writing
Prospectus prepared by the Company (including the Definitive Free Writing
Prospectus), and any Issuer Information contained in any Free Writing Prospectus
provided to it by the Underwriter under Section 4.4(e), not later than the
date
of first use of the Free Writing Prospectus, except that:
(a) As
to any
Free Writing Prospectus or portion thereof required to be filed that contains
only the description of the final terms of the Certificates after such terms
have been established for all classes of Certificates being publicly offered,
such Free Writing Prospectus or portion thereof may be filed by the Company
within two days of the later of the date such final terms have been established
for all classes of Certificates being publicly offered and the date of first
use; and
(b) Notwithstanding
clause (a) above, as to any Free Writing Prospectus or portion thereof required
to be filed that contains only information of a type included within the
definition of ABS Informational and Computational Materials, the Company shall
file such Free Writing Prospectus or portion thereof within the later of two
business days after any Underwriter first provides this information to investors
and the date upon which the Company is required to file the Prospectus
Supplement with the Commission pursuant to Rule 424(b)(3) of the
Act;
provided
further, that prior to such use of any Free Writing Prospectuses by the Company,
the Underwriter must comply with its obligations pursuant to Section 4.4 and
that the Company shall not be required to file any Free Writing Prospectus
that
does not contain substantive changes from or additions to a Free Writing
Prospectus previously filed with the Commission.
5.11 The
Underwriter shall file any Free Writing Prospectus (other than a Free Writing
Prospectus that is covered by Section 5.10) that has been distributed by the
Underwriter in a manner that could lead to its broad, unrestricted dissemination
not later than the date of first use, provided that if that Free Writing
Prospectus contains only information of a type included within the definition
of
ABS Informational and Computational Materials then such filing shall be made
within the later of two business days after the Underwriter first provide this
information to investors and the date upon which the Company is required to
file
the Prospectus Supplement with the Commission pursuant to Rule 424(b)(3) of
the
Act; provided further, that the Underwriter shall not be required to file any
Free Writing Prospectus that does not contain substantive changes from or
additions to a Free Writing Prospectus previously filed with the
Commission.
5.12 During
the period when a prospectus is required by law to be delivered in connection
with the sale of the Certificates pursuant to this Agreement, the Company will
file or cause to be filed, on a timely and complete basis, all documents that
are required to be filed by the Company with the Commission pursuant to Section
13, 14 or 15(d) of the Exchange Act (as defined below).
5.13 The
Company will furnish to the Underwriter, without charge as many copies of the
Prospectus, any documents incorporated by reference therein and any amendments
and supplements thereto as the Underwriter may reasonably request..
6. Conditions
to the Obligations of the Underwriter. The Underwriter’s obligation to
purchase the Certificates shall be subject to (i) the accuracy on and as of
the
Closing Date of the representations and warranties on the part of Alliance
Bancorp and the Company herein contained; (ii) the performance by Alliance
Bancorp and the Company of all of its obligations hereunder; and (iii) the
following conditions as of the Closing Date:
6.1 No
stop
order suspending the effectiveness of the Registration Statement shall be in
effect, and no proceedings for that purpose shall be pending or, to the
knowledge of the Company, threatened by the Commission; and the Prospectus
Supplement shall have been filed or transmitted for filing, by means reasonably
calculated to result in a filing with the Commission not later than the time
required by Rule 424(b) under the Act.
6.2 Since
May
1, 2007, there shall have been no material adverse change (or any development
involving a prospective change) in the sole judgment of the Underwriter in
the
condition of the Company or Alliance Bancorp that, in the judgment of the
Underwriter, impairs the investment quality of the Certificates so as to make
it
impracticable or inadvisable to market the Certificates on the terms and in
the
manner contemplated in the Prospectus.
6.3 The
Company shall have delivered to the Underwriter a certificate, dated the Closing
Date, of the President, a Senior Vice President or a Vice President of the
Company to the effect that the signer of such certificate has examined this
Agreement, the Prospectus, the Pooling and Servicing Agreement and various
other
closing documents, and that, to the best of his or her knowledge after
reasonable investigation:
(a) the
representations and warranties of the Company in this Agreement and all other
Transaction Documents to which it is a party are true and correct in all
material respects; and
(b) the
Company has, in all material respects, complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied hereunder
at or prior to the Closing Date.
6.4 Alliance
Bancorp shall have delivered to the Underwriter a certificate, dated the Closing
Date, of the President, a Senior Vice President or a Vice President of Alliance
Bancorp to the effect that the signer of such certificate has examined this
Agreement, the Prospectus, the Pooling and Servicing Agreement and various
other
closing documents, and that, to his or her actual knowledge the representations
and warranties of Alliance Bancorp, in this Agreement and all other Transaction
Documents to which Alliance Bancorp is a party are true and correct in all
material respects as of the Closing Date.
6.5 The
Underwriter shall have received the opinions and a letter of Xxxxxxx Xxxxxxxx
& Xxxx LLP, special counsel for the Company, dated the Closing Date and
substantially to the effect set forth in Exhibit A-l, Exhibit A-2 and Exhibit
A-3 and the opinion of in-house counsel for Alliance Bancorp, dated the Closing
Date and substantially to the effect set forth in Exhibit X-x.
6.6 The
Underwriter shall have received from XxXxx Xxxxxx, counsel for the Underwriter,
an opinion dated the Closing Date in form and substance satisfactory to the
Underwriter.
6.7 The
Certificates shall have been rated at least as described directly below by
Standard & Poor's, a division of The XxXxxx-Xxxx Companies, Inc. (“S&P”)
and Xxxxx'x Investors Service, Inc. (“Xxxxx'x”).
|
Class
|
S&P’s
Rating
|
Xxxxx’x
Rating
|
|
Class
A-1
|
AAA
|
Aaa
|
|
Class
A-2
|
AAA
|
Aaa
|
|
Class
A-3
|
AAA
|
Aaa
|
|
Class
M-1
|
AA+
|
Aaa
|
|
Class
M-2
|
AA
|
Aa1
|
|
Class
M-3
|
AA-
|
Aa1
|
|
Class
M-4
|
A+
|
Aa2
|
|
Class
M-5
|
A
|
Aa3
|
|
Class
M-6
|
A-
|
A1
|
|
Class
M-7
|
BBB+
|
A2
|
|
Class
M-8
|
BBB
|
A3
|
|
Class
M-9
|
BBB-
|
Baa1
|
The
Underwriter shall have received a copy of the letter from each of the respective
rating agencies to such effect; and such ratings shall not have been withdrawn
on or before the Closing Date.
6.8 The
Underwriter shall have received the opinion of Xxxxx Xxxxxxx Xxxxxxx & Xxxxx
LLC special counsel to the Trustee, dated the Closing Date, substantially to
the
effect set forth in Exhibit C.
6.9 The
Underwriter shall have received from KPMG, certified public accountants, a
letter dated the date hereof and satisfactory in form and substance to the
Underwriter and the Underwriter’s counsel, to the effect that they have
performed certain specified procedures, all of which have been agreed to by
the
Underwriter, as a result of which they determined that certain information
of an
accounting, financial or statistical nature set forth in the Definitive Free
Writing Prospectus and the Prospectus Supplement under the captions “The
Mortgage Pool”, “Description of the Certificates”, “Yield on the Certificates”
and “Pooling and Servicing Agreement” (and for the avoidance of doubt, any
static pool data pursuant to Item 1105 of Regulation AB under the 1933 Act
Regulations included or incorporated by reference in the Definitive Free Writing
Prospectus or the Prospectus) agrees with the records of the Company excluding
any questions of legal interpretation.
6.10 The
Underwriter shall have received from Xxxxxxx Xxxxxxxx & Xxxx LLP, special
counsel to the Company, and from in-house counsel to the Company, reliance
letters with respect to any opinions delivered to Standard & Poor’s, a
division of The XxXxxx-Xxxx Companies, Inc. and Xxxxx’x Investors Service,
Inc.
6.11 The
Underwriter shall have received a certificate, dated the Closing Date, of the
President, a Senior Vice President or a Vice President of Alliance Bancorp
and
the Company as to the good standing of Alliance Bancorp and the Company and
the
due authorization by Alliance Bancorp of the transactions contemplated
herein.
6.12 The
Underwriter shall have received such further information, certificates and
documents as the Underwriter may reasonably have requested, and all proceedings
in connection with the transactions contemplated by this Agreement and all
documents incident hereto shall be in all material respects reasonably
satisfactory in form and substance to the Underwriter and the Underwriter’s
counsel.
6.13 The
information contained in the Definitive Free Writing Prospectus and the
Prospectus in the section “RISK FACTORS—The Sponsor and Servicer and Its Parent
Have Breached Certain Covenants Under Their Respective Financing Arrangements”
is true and correct in all material respects.
6.14 No
lender
has exercised any remedy with respect to a default under any indenture,
contract, lease, mortgage, deed of trust, note, agreement or other evidence
of
indebtedness or other agreement, obligation or instrument to which Alliance
Bancorp, the Company or any of their affiliates is a party or by which it or
its
properties are bound which would have a material adverse affect on the financial
condition of Alliance Bancorp or the Company or their ability to enter into
the
transactions contemplated by this Agreement.
The
Company will furnish the Underwriter with conformed copies of the above
opinions, certificates, letters and documents as you reasonably
request.
If
any of
the conditions specified in this Section 6 shall not have been fulfilled in
all
material respects when and as provided in this Agreement, or, if any of the
opinions and certificates mentioned above or elsewhere in this Agreement shall
not be in all material respects reasonably satisfactory in form and substance
to
the Underwriter and its counsel, this Agreement and all obligations of the
Underwriter hereunder may be canceled at, or at any time prior to, the Closing
Date by the Underwriter. Notice of such cancellation shall be given to Alliance
Bancorp and the Company in writing, or by telephone or telegraph confirmed
in
writing. If the Underwriter terminates as a result of this provision, Alliance
Bancorp and the Company shall reimburse the Underwriter for all reasonable
out
of pocket expenses, including fees of counsel.
7. Indemnification
and Contribution.
7.1 (a)
Alliance Bancorp and the Company agree, jointly and severally, to indemnify
and
hold harmless the Underwriter and each person, if any, who controls the
Underwriter within the meaning of either Section 15 of the Act or Section 20
of
the Securities Exchange Act of 1934, as amended (the “Exchange Act”) from and
against any and all losses, claims, damages, expenses (as incurred) and
liabilities, joint or several, to which the Underwriter or they may become
subject under the Exchange Act, or other federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims, damages,
expenses or liabilities (or actions in respect thereof) arise out of or are
based upon or are caused by any untrue statement or alleged untrue statement
of
a material fact contained in the Definitive Free Writing Prospectus, or in
any
Issuer Information contained in any other Free Writing Prospectus, or in any
Underwriter Derived Information to the extent caused by any error in the Pool
Information, or in the Registration Statement for the registration of the
Certificates as originally filed or in any amendment thereof or other filing
incorporated by reference therein, or in the Prospectus or any amendment thereof
or supplement thereto or other filing incorporated by reference therein or
arise
out of or are based upon any omission or alleged omission to state therein
a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and agrees to reimburse each such indemnified party for any legal
or
other expenses reasonably incurred, as such expenses are incurred, by it or
him
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that none of Alliance Bancorp or the
Company shall be liable to the Underwriter or any person who controls the
Underwriter to the extent that any misstatement or alleged misstatement or
omission or alleged omission is based upon any information with respect to
which
the Underwriter has agreed to indemnify Alliance Bancorp and the Company
pursuant to Section 7.2.
(b) Alliance
Bancorp and the Company, jointly and severally, agree to indemnify and hold
harmless the Underwriter and each person, if any, who controls the Underwriter
within the meaning of either Section 15 of the Act or Section 20 of the Exchange
Act agree to indemnify and hold harmless the Underwriter and each person, if
any, who controls the Underwriter within the meaning of either Section 15 of
the
Act or Section 20 of the Exchange Act, from and against any and all losses,
claims, damages and liabilities caused by errors in the Pool
Information.
7.2 The
Underwriter agrees to indemnify, hold harmless and reimburse Alliance Bancorp
and the Company, each of their directors or officers who signed the Registration
Statement and any person controlling Alliance Bancorp and the Company to the
same extent as the indemnity set forth in clause 7.1 above from Alliance Bancorp
and the Company to the Underwriter, provided, however, that the Underwriter
shall be liable for losses, claims, damages and liabilities only to the extent
that they arise out of or are based upon (i) the Underwriter’s Information, (ii)
any Underwriter Derived Information, except to the extent of any errors in
any
Underwriter Derived Information that are caused by errors in the Pool
Information, (iii) any Free Writing Prospectus for which the conditions set
forth in Section 4.4(e) above are not satisfied with respect to the prior
approval by the Company, and (iv) any portion of any Free Writing Prospectus
(other than the Definitive Free Writing Prospectus) not constituting Issuer
Information, except to the extent of any errors that are caused by errors in
the
Pool Information. This indemnity agreement will be in addition to any liability
which the Underwriter may otherwise have.
Each
of
Alliance Bancorp and the Company acknowledges that the Underwriter’s Information
constitutes the only information furnished in writing by or on behalf of the
Underwriter expressly for use in the Registration Statement or the Prospectus
or
in any amendment thereof or supplement thereto, as the case may be.
7.3 In
case
any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to
either clause 7.1 or 7.2, such person (the “indemnified party”) shall promptly
notify the person against whom such indemnity may be sought (the “indemnifying
party”) in writing and the indemnifying party, upon request of the indemnified
party, shall retain counsel reasonably satisfactory to the indemnified party
to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the reasonable fees and disbursements
of such counsel related to such proceeding. In any such proceeding, any
indemnified party shall have the right to retain its own counsel, but the
reasonable fees and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the indemnifying party and the indemnified party
shall have mutually agreed to the retention of such counsel, (ii) the
indemnifying party shall not have employed counsel reasonably satisfactory
to
the indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action or (iii) the named parties
to
any such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both parties
by the same counsel would be inappropriate due to actual or potential differing
interests between them. In any case described in subclauses (ii) or (iii) of
the
immediately preceding sentence, the fees and disbursements of counsel for the
indemnified party shall be paid by the indemnifying party. It is understood
that
the indemnifying party shall not, in connection with any proceeding or related
proceedings involving the same general allegations in the same jurisdiction,
be
liable for the reasonable fees and expenses of more than one separate firm
(plus
one local counsel, as necessary) for all such indemnified parties. Such firm
shall be designated in writing by the Underwriter, in the case of parties
indemnified pursuant to clause 7.1 and by Alliance Bancorp or the Company,
as
applicable, in the case of parties indemnified pursuant to clause 7.2. The
indemnifying party may, at its option, at any time upon written notice to the
indemnified party, assume the defense of any proceeding and may designate
counsel reasonably satisfactory to the indemnified party in connection therewith
provided that the counsel so designated would have no actual or potential
conflict of interest in connection with such representation. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened proceeding in respect of which
any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes
an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding. Unless it shall assume the
defense of any proceeding, the indemnifying party shall not be liable for any
settlement of any proceeding, effected without its prior written
consent.
7.4 If
the
indemnification provided for in this Section 7 is unavailable to an indemnified
party under clause 7.1 or 7.2 hereof or insufficient in respect of any losses,
claims, damages, expenses or liabilities referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, expenses or liabilities, in such proportion
as
is appropriate to reflect (i) the relative benefits received by Alliance Bancorp
and the Company on the one hand and the Underwriter on the other from the
offering of the 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 Alliance Bancorp and the Company on the one hand
and
the Underwriter on the other in connection with the statements or omissions
or
alleged statements or alleged omissions which resulted in such losses, claims,
damages, expenses or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by Alliance Bancorp and the
Company on the one hand, and by the Underwriter on the other shall be in the
same proportions that the purchase price paid by the Underwriter to the Company
for the Certificates before deducting the expenses of the Company (“Net
Proceeds”) and the excess of (a) the purchase prices paid by investors to the
Underwriter for the Certificates (the “Public Offering Price”) over (b) Net
Proceeds, bear to the Public Offering Price. The relative fault of Alliance
Bancorp and the Company on the one hand and of the Underwriter on the other
shall be determined by reference to, among other things, whether the untrue
or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by Alliance Bancorp
or
the Company or by the Underwriter, and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or
omission.
7.5 Alliance
Bancorp, the Company and the Underwriter agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro
rata
allocation or by any other method of allocation which does not take account
of
the considerations referred to in clause 7.4, above. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages, expenses
and
liabilities referred to in this Section 7 shall be deemed to include, subject
to
the limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any
such
action or claim except where the indemnified party is required to bear such
expenses pursuant to clause 7.4; which expenses the indemnifying party shall
pay
as and when incurred, at the request of the indemnified party, to the extent
such expenses are required to be paid by such indemnifying party under this
Section 7. Notwithstanding the provisions of this Section 7, the Underwriter
shall not be required to contribute any amount in excess of the amount by which
the Public Offering Price exceeds the Net Proceeds. In the event that
any expenses so paid by the indemnifying party are subsequently determined
to
not be required to be borne by the indemnifying party hereunder, the party
which
received such payment shall promptly refund the amount so paid to the party
which made such payment. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled
to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
7.6 The
indemnity and contribution agreements contained in this Section 7 and the
representations and warranties of Alliance Bancorp and the Company in this
Agreement shall remain operative and in full force and effect regardless of
(i)
any termination of this Agreement, (ii) any investigation made by any
Underwriter or on behalf of any Underwriter or any person controlling
Underwriter or by or on behalf of Alliance Bancorp or the Company and their
respective directors or officers or any person controlling Alliance Bancorp
or
the Company and (iii) acceptance of and payment for any of the
Certificates.
7.7 Alliance
Bancorp and the Company acknowledge and agree that the Underwriter in providing
investment banking services to Alliance Bancorp and the Company in connection
with the offering, including in acting pursuant to the terms of this Agreement,
has acted and is acting as an independent contractor and not as a fiduciary
and
Alliance Bancorp and the Company do not intend the Underwriter to act in any
capacity other than independent contractor, including as a fiduciary or in
any
other position of higher trust.
8. Termination.
This Agreement shall be subject to termination by the Underwriter by notice
given to Alliance Bancorp and the Company, (i) if the sale of the Certificates
provided for herein is not consummated because of any failure or refusal on
the
part of Alliance Bancorp or the Company to comply with the terms or to fulfill
any of the conditions of this Agreement, or if for any reason Alliance Bancorp
or the Company shall be unable to perform their respective obligations under
this Agreement or (ii) trading in securities generally on the New York Stock
Exchange shall have been suspended or materially limited, (iii) a general
moratorium on commercial banking activities in New York shall have been declared
by either Federal or New York State authorities, or (iv) there shall have
occurred any outbreak or escalation of hostilities or other calamity or crisis
the effect of which on the financial markets is such as to make it, in your
reasonable judgment, impracticable to market the Certificates on the terms
specified in this Agreement. If the Underwriter terminates this Agreement in
accordance with this Section 8, Alliance Bancorp or the Company will reimburse
the Underwriter for all reasonable out-of-pocket expenses (including reasonable
fees and disbursements of counsel) that shall have been reasonably incurred
by
the Underwriter in connection with the proposed purchase and sale of the
Certificates.
9. Certain
Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of Alliance
Bancorp or the Company or their respective officers, and the Underwriter set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results thereof,
made by you or on your behalf or made by or on behalf of Alliance Bancorp,
the
Company or any of their officers, directors or controlling persons, and will
survive delivery of and payment for the Certificates.
10. Notices. All
communications hereunder will be in writing and effective only on receipt,
and,
if sent to the Underwriter, will be mailed, delivered or telegraphed and
confirmed to it at Barclays Capital Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxx Xxx; if sent to the Company, will be mailed, delivered
or
telegraphed and confirmed to it at Alliance Securities Corp., 0000 Xxxxxx Xxxx,
Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxx Xxxxxxx, or if sent
to
Alliance Bancorp, will be mailed, delivered, or telegraphed and confirmed to
it
at Alliance Bancorp, 0000 Xxxxxx Xxxx., Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000,
Attention: Xxxx Xxxxxxx.
11. Successors. This
Agreement will inure to the benefit of and be binding upon the parties hereto
and their respective successors and the officers and directors and controlling
persons referred to in Section 7 hereof, and their successors and assigns,
and
no other person will have any right or obligation hereunder.
12. Applicable
Law. This Agreement will be governed by and construed in accordance with the
laws of the State of New York.
13. Counterparts.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original, which taken together shall constitute one and
the
same instrument.
If
the
foregoing is in accordance with your understanding of our agreement, please
sign
and return to us a counterpart hereof, whereupon this letter and your acceptance
shall represent a binding agreement among Alliance Bancorp, the Company and
you.
|
Very
truly yours,
ALLIANCE
SECURITIES CORP.
|
|
|
By:
|
/s/ Xxxx X. Xxxxxxxx |
|
Name:
|
Xxxx X. Xxxxxxxx |
|
Title:
|
President |
|
ALLIANCE
BANCORP
|
|
|
By:
|
/s/ Xxxx X. Xxxxxxxx |
|
Name:
|
Xxxx X. Xxxxxxxx |
|
Title:
|
President |
|
The
foregoing Underwriting Agreement
is
hereby confirmed and accepted as of
the
date first above written.
BARCLAYS
CAPITAL INC.
|
|
|
By:
|
/s/ Xxxx Xxxxxxx |
|
Name:
|
Xxxx Xxxxxxx |
|
Title:
|
Director |
SCHEDULE
I
|
Class
|
Certificate
Principal Balance
|
|
|
Class
A-1
|
$166,387,000
|
|
|
Class
A-2
|
$
69,328,000
|
|
|
Class
A-3
|
$
41,597,000
|
|
|
Class
M-1
|
$
21,011,000
|
|
|
Class
M-2
|
$
12,156,000
|
|
|
Class
M-3
|
$
3,473,000
|
|
|
Class
M-4
|
$
5,556,000
|
|
|
Class
M-5
|
$
3,300,000
|
|
|
Class
M-6
|
$
2,257,000
|
|
|
Class
M-7
|
$
3,299,000
|
|
|
Class
M-8
|
$
2,258,000
|
|
|
Class
M-9
|
$
3,472,000
|
|
EXHIBIT
A-1
Opinion
of Xxxxxxx Xxxxxxxx & Xxxx LLP re: Closing Opinion
(Please
See Tab #27)
EXHIBIT
A-2
10b-5
Letter of Xxxxxxx Xxxxxxxx & Xxxx LLP
(Please
See Tab #26)
EXHIBIT
A-3
Letter
of
Xxxxxxx Xxxxxxxx & Xxxx LLP re: Certain Security Law Matters
(Please
See Tab #28)
EXHIBIT
B-1
Opinion
of In-house Counsel to Alliance Bancorp re: Certain Matters
(Please
See Tab #30)
EXHIBIT
C
Opinion
of Trustee’s Counsel
(Please
See Tab #35)
EXHIBIT
D
FOOTNOTE
271 INFORMATION
[Excerpt
from Offering Reform adopting release-bold headings added for convenience of
reference]
In
the
case of asset-backed issuers certain information comprehended within the
definition of ABS informational and computational material is analogous to
the
term of securities and is therefore issuer information. For example,
we would expect that the following categories of such material, which are
derived from the definition of ABS informational and computational materials,
are generally issuer information:
(1) Structural
information-factual information regarding the asset-backed securities
being offered and the structure and basic parameters of the securities, such
as
the number of classes, seniority, payment priorities, terms of payment, the
tax,
ERISA or other legal conclusions of counsel, and descriptive information
relating to each class (e.g., principal amount, coupon, minimum denomination,
price or anticipated price, yield, weighted average life, credit enhancements,
anticipated ratings, and other similar information relating to the proposed
structure of the offering);
(2) Collateral
information-factual information regarding the pool assets underlying
the asset-backed securities, including origination, acquisition and pool
selection criteria, information regarding any prefunding or revolving period
applicable to the offering, information regarding significant obligors, data
regarding the contractual and related characteristics of the underlying pool
assets (e.g., weighted average coupon, weighted average maturity, delinquency
and loss information and geographic distribution) and other factual information
concerning the parameters of the asset pool appropriate to the nature of the
underlying assets, such as the type of assets comprising the pool and the
programs under which the loans were originated;
(3) Key
parties information-identification of key parties to the transaction,
such as servicers, trustees, depositors, sponsors, originators and providers
of
credit enhancement or other support, including information about any such
party;
(4) Static
pool data-static pool data, as referenced in Item 1105 of Regulation AB
17 CFR 229.1105, such as for the sponsor’s and/or servicer’s portfolio, prior
transactions or the asset pool itself; and
(5) Issuer
computational material-to the extent that the information is provided
by the issuer, depositor, affiliated depositor, or sponsor, statistical
information displaying for a particular class of asset-backed securities the
yield, average life, expected maturity, interest rate sensitivity, cash flow
characteristics, total rate of return, option adjusted spread or other financial
or statistical information related to the class or classes under specified
prepayment, interest rate, loss or other hypothetical
scenarios. (Where such information is prepared by the Underwriteror
dealer, it is not issuer information, even when derived from issuer
information.)
