FINANCIAL ASSET SECURITIES CORP.
$[1,213,476,000] (Approximate)
[GreenPoint Mortgage Funding Trust 200_-___]
[Asset-Backed Notes, Series 200_-___]
UNDERWRITING AGREEMENT
___________, 2006
Greenwich Capital Markets, Inc.
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▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Financial Asset Securities Corp. (the "Depositor"), a Delaware
corporation, has authorized the issuance and sale of GreenPoint Mortgage Funding
Trust 200[_]-[___], Asset-Backed Notes, Series 200[_]-[__], Class IA-1 Notes,
Class IIA-1a Notes, Class IIA-1b Notes, Class IIA-1c Notes, Class IIA-2c Notes,
Class IIA-3c Notes, Class IIA-4c Notes, Class M-1 Notes, Class M-2 Notes, Class
M-3 Notes, Class M-4 Notes, Class M-5 Notes, Class M-6 Notes, Class M-7 Notes,
Class M-8 Notes and the Class M-9 Notes (the "Offered Notes"). Also issued are
the Class M-10 Notes, Class M-11 Notes, Class B-1 Notes and Class B-2 Notes
(together with the Offered Notes, the "Notes") and Class C Certificates, Class G
Certificates, Class R Certificates and Class R-X Certificates (collectively, the
"Certificates").
Only the Class IA-1 Notes, Class IIA-1a Notes, Class IIA-1b Notes,
Class IIA-1c Notes, Class IIA-2c Notes, Class IIA-3c Notes, Class IIA-4c Notes,
Class M-1 Notes, Class M-2 Notes, Class M-3 Notes, Class M-4 Notes, Class M-5
Notes, Class M-6 Notes, Class M-7 Notes, Class M-8 Notes and the Class M-9 Notes
(collectively the "Underwritten Notes") are being purchased by the Underwriters
named in Schedule B hereto (the "Underwriters"), and the Underwriters are
purchasing, severally, only the Underwritten Notes set forth opposite their
names in Schedule B, except that the amounts purchased by the Underwriters may
change in accordance with Section 10 of this Agreement. If the firm or firms
listed in Schedule B hereto include only Greenwich Capital Markets, Inc.
("Greenwich"), then the terms "Underwriters" and "Representative," as used
herein, shall each be deemed to refer to Greenwich.
The Notes will be issued under an Indenture (the "Indenture"), dated as
of [________], 200_, between [________] as issuer (the "Issuer" or the "Trust")
and [__________] as indenture trustee (the "Indenture Trustee"). The Issuer is a
Delaware statutory trust created pursuant to a Trust Agreement, dated as of
_____________, 200_ (the "Trust Agreement"), among the Depositor,
[_____________] as owner trustee (the "Owner Trustee") and [____________] as
certificate registrar (the "Certificate Registrar").
The Notes will evidence debt obligations of the Issuer secured by a
pledge by the Issuer of the Trust Estate (the "Trust Estate"). The Trust Estate
will include, among other things, a pool of adjustable rate, first and second
lien, home equity lines of credit, the Net WAC Rate Carryover Reserve Account
and such amounts as may be held by the Indenture Trustee in any other accounts
held by the Indenture Trustee for the Trust. Forms of the Indenture and Trust
Agreement have been filed as an exhibit to the Registration Statement.
The Certificates will be issued pursuant to a pooling and servicing
agreement (the "Pooling and Servicing Agreement") to be dated as of
________________________, 200_ (the "Cut-off Date") among the Company, as
seller, ______________________________, as master servicer ("Master Servicer"),
and ______________________________, as trustee (the "Trustee"). The Certificates
are described more fully in the Basic Prospectus and the Prospectus Supplement
(each as hereinafter defined) which the Company has furnished to you.
Pursuant to the Sale and Servicing Agreement, dated [_________], 200_
(the "Sale and Servicing Agreement"), among [_________], as originator (the
"Originator"), [_______] as servicer (the "Servicer"), [________], as seller
(the "Seller"), the Issuer, the Indenture Trustee and the Depositor, the Seller
will transfer to the Depositor all of its right, title and interest in and to
the scheduled principal balances of the Mortgage Loans as of the Cut-off Date
and interest due after the Cut-off Date and the collateral securing each
Mortgage Loan. Also pursuant to the Sale and Agreement, the Depositor will
transfer to the Issuer all of its right, title and interest in and to the
scheduled principal balances of the Mortgage Loans as of the Cut-off Date and
interest due after the Cut-off Date and the collateral securing each Mortgage
Loan.
This Agreement, the Trust Agreement, the Sale and Servicing Agreement,
the Indenture, and the Notes are sometimes referred to herein collectively as
the "Operative Agreements." Capitalized terms used but not defined herein shall
have the meanings assigned thereto in the Indenture.
SECTION 1. Representations and Warranties of the Depositor. The
Depositor represents and warrants to, and agrees with the Underwriters that as
of the date hereof and as of the Closing Date:
(a) A Registration Statement on Form S-3 (No. 333-127352), has (i) been
prepared by the Depositor in conformity with the requirements of the Securities
Act of 1933, as amended (the "Securities Act") and the rules and regulations
(the "Rules and Regulations") of the United States Securities and Exchange
Commission (the "Commission") thereunder, (ii) been filed with the Commission
under the Securities Act and (iii) become effective and is still effective as of
the date hereof under the Securities Act. Copies of such Registration Statement
have been delivered by the Depositor to the Underwriters. As used in this
Agreement, "Effective Time" means the date and the time as of which such
Registration Statement, or the most recent post-effective amendment thereto, if
any, was declared effective by the Commission; "Effective Date" means the date
of the Effective Time; "Registration Statement" means such registration
statement, at the Effective Time, including any documents incorporated by
reference therein at such time; "Basic Prospectus" means such final prospectus
dated [_______] and "Prospectus Supplement" means such final prospectus
supplement dated [_______] relating to the Underwritten Notes, to be filed with
the Commission pursuant to paragraphs (2), (3) or (5) of Rule 424(b) of the
Rules and Regulations. "Prospectus" means the Basic Prospectus together with the
Prospectus Supplement. Reference made herein to the Prospectus shall be deemed
to refer to and include any documents incorporated by reference therein pursuant
to Item 12 of Form S-3 under the Securities Act, as of the date of the
Prospectus and any reference to any amendment or supplement to the Prospectus
shall be deemed to refer to and include any document filed under the Securities
Exchange Act of 1934 (the "Exchange Act") after the date of the Prospectus, and
incorporated by reference in the Prospectus and any reference to any amendment
to the Registration Statement shall be deemed to include any report of the
Depositor filed with the Commission pursuant to Section 13(a) or 15(d) of the
Exchange Act after the Effective Time that is incorporated by reference in the
Registration Statement. The Commission has not issued any order preventing or
suspending the use of the Prospectus or the effectiveness of the Registration
Statement and no proceedings for such purpose are pending or, to the Depositor's
knowledge, threatened by the Commission. There are no contracts or documents of
the Depositor which are required to be filed as exhibits to the Registration
Statement pursuant to the Securities Act or the Rules and Regulations which have
not been so filed or incorporated by reference therein on or prior to the
Effective Date of the Registration Statement other than such documents or
materials, if any, as any Underwriter delivers to the Depositor pursuant to
Section 6(b) hereof for filing on Form 8-K. The conditions for use of Form S-3,
as set forth in the General Instructions thereto, have been satisfied. The
Depositor further proposes to prepare, after the final terms of all classes of
the Securities have been established, a Free Writing Prospectus that will
contain substantially all information that will appear in the Prospectus
Supplement, to the extent that such information is known at that time and minus
specific sections including the "Method of Distribution" section (such Free
Writing Prospectus, together with the Basic Prospectus, the "Definitive Free
Writing Prospectus").
To the extent that any Underwriter has provided to the Depositor
Collateral Term Sheets, Structural Term Sheets, Series Term Sheets or
Computational Materials (each as defined in Section 6(b) below) that such
Underwriter has provided to a prospective investor, the Depositor will file or
cause to be filed with the Commission a report on Form 8-K containing such
Computational Materials, as soon as reasonably practicable after the date of
this Agreement, but in any event, not later than 11:00 a.m. New York time on the
date on which the Prospectus is made available to the Underwriter and is filed
with the Commission pursuant to Rule 424 of the Rules and Regulations.
(b) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, when they become effective or are filed with the
Commission, as the case may be, in all respects to the requirements of the
Securities Act and the Rules and Regulations. The Registration Statement, as of
the Effective Date thereof and of any amendment thereto, did not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading.
The Prospectus as of its date, and as amended or supplemented as of the Closing
Date does not and will not contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
provided that no representation or warranty is made as to (i) information
contained in or omitted from the Registration Statement or the Prospectus in
reliance upon and in conformity with written information furnished to the
Depositor in writing by the Underwriter expressly for use therein which shall be
limited to the information set forth on Exhibit B hereto ("Underwriter's
Information") or (ii) any Derived Information contained in any Collateral Term
Sheet, Structural Term Sheets, Series Term Sheets or Computational Materials
(each as defined in Section 6(b) below) in each case to the extent not included
in the Prospectus. In addition, any Issuer Information (as defined below)
contained in the Definitive Free Writing Prospectus, as of the date thereof, did
not contain an untrue statement of a material fact and did not omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. The Effective Date
shall mean the earlier of the date on which the Definitive Free Writing
Prospectus is first used and the time of the first Contract of Sale to which
such Prospectus Supplement relates. As used herein, "Pool Information" means all
loan level data with respect to the characteristics of the Mortgage Loans and
administrative and servicing fees, as provided by or on behalf of the Depositor.
The Depositor acknowledges that except for any Computational Materials, the
Underwriters' Information (as defined in Exhibit B) and the decrement/yield
tables constitute the only information furnished in writing by you or on your
behalf for use in connection with the preparation of the Registration Statement
or the Prospectus, and you confirm that the Underwriters' Information is correct
with respect to you and the Securities such Underwriter underwrites.
(c) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Securities Act or
the Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder; and any further documents so filed and incorporated by reference in
the Prospectus, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects to the
requirements of the Securities Act or the Exchange act, as applicable, and the
rules and regulations of the Commission thereunder.
(d) The Depositor has been duly incorporated and is validly existing as
a corporation in good standing under the laws of its jurisdiction of
incorporation and is in good standing as a foreign corporation in each
jurisdiction in which its ownership or lease of property or the conduct of its
business so requires such standing. The Depositor has all power and authority
necessary to own or hold its properties, to conduct the business in which it is
engaged and to enter into and perform its obligations under this Agreement, the
Sale and Servicing Agreement and the Trust Agreement and to cause the Notes to
be issued.
(e) There are no actions, proceedings or investigations pending with
respect to which the Depositor has received service of process before or
threatened by any court, administrative agency or other tribunal to which the
Depositor is a party or of which any of its properties is the subject (a) which
if determined adversely to the Depositor would have a material adverse effect on
the business or financial condition of the Depositor, (b) asserting the
invalidity of any of the Agreements or the Notes, (c) seeking to prevent the
issuance of the Notes or the consummation by the Depositor of any of the
transactions contemplated by any of the Agreements or (d) which might materially
and adversely affect the performance by the Depositor of its obligations under,
or the validity or enforceability of any of the Agreements or the Notes.
(f) This Agreement has been, and the Operative Agreements to which the
Depositor is a party, when executed and delivered as contemplated hereby and
thereby will have been, duly authorized, executed and delivered by the
Depositor, and this Agreement constitutes, and the other Agreements when
executed and delivered as contemplated herein will constitute, legal, valid and
binding instruments enforceable against the Depositor in accordance with their
respective terms, subject as to enforceability to (x) applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws affecting
creditors' rights generally, (y) general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law), and (z) with
respect to rights of indemnity under any of the Operative Agreements,
limitations of public policy under applicable securities laws.
(g) The execution, delivery and performance of the Operative Agreements
by the Depositor and the consummation of the transactions contemplated hereby
and thereby, and the issuance and delivery of the Notes do not and will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Depositor is
a party, by which the Depositor is bound or to which any of the properties or
assets of the Depositor or any of its subsidiaries is subject, which breach or
violation would have a material adverse effect on the business, operations or
financial condition of the Depositor or its ability to perform its obligations
under any of the Operative Agreements, nor will such actions result in any
violation of the provisions of the articles of incorporation or by-laws of the
Depositor or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Depositor or any of its
properties or assets, which breach or violation would have a material adverse
effect on the business, operations or financial condition of the Depositor or
its ability to perform its obligations under any of the Operative Agreements.
(h) The direction by the Issuer to the Indenture Trustee to execute,
authenticate, issue and deliver the Notes has been duly authorized by the
Depositor, and, assuming the Indenture Trustee has been duly authorized to
undertake such actions, when executed, authenticated, issued and delivered by
the Indenture Trustee, in accordance with the Operative Agreements, the Notes
will be validly issued and outstanding and the holders of the Notes will be
entitled to the rights and benefits of the Notes as provided by the Indenture.
(i) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body of the United
States is required for the issuance of the Notes and the sale of the
Underwritten Notes to the Underwriters, or the consummation by the Depositor of
the other transactions contemplated by the Agreements except such consents,
approvals, authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the purchase and
distribution of the Underwritten Notes by the Underwriters or as have been
obtained.
(j) At the time of the execution and delivery of the Sale and Servicing
Agreement, the Depositor will: (i) have equitable title to the interest in the
Mortgage Loans conveyed by the Seller, free and clear of any lien, mortgage,
pledge, charge, encumbrance, adverse claim or other security interest
(collectively, "Liens"); (ii) not have assigned to any person (other than the
Indenture Trustee) any of its right, title or interest in the Mortgage Loans and
(iii) have the power and authority to sell its interest in the Mortgage Loans to
the Indenture Trustee and to sell the Underwritten Notes to the Underwriters.
Upon execution and delivery of the Trust Agreement by the Indenture Trustee, the
Indenture Trustee will have acquired beneficial ownership of all of the
Depositor's right, title and interest in and to the Mortgage Loans. Upon
delivery to the Underwriters of the Underwritten Notes, each of the Underwriters
of the Underwritten Notes will have good title to the Underwritten Notes
purchased by it.
(k) As of the Cut-off Date, each of the Mortgage Loans will meet the
eligibility criteria described in the Prospectus and will conform to the
descriptions thereof contained in the Prospectus.
(l) Neither the Depositor nor the Trust is an "investment company"
within the meaning of such term under the Investment Company Act of 1940 (the
"1940 Act") and the rules and regulations of the Commission thereunder.
(m) At the Closing Date, the Underwritten Notes, the Indenture, the
Sale and Servicing Agreement and the Trust Agreement will conform in all
material respects to the descriptions thereof contained in the Prospectus.
(n) Any taxes, fees and other governmental charges in connection with
the execution, delivery and issuance of the Agreements and the Notes have been
paid or will be paid at or prior to the Closing Date.
(o) Since the respective dates as of which information is given in the
Prospectus, there has not been any material adverse change in the general
affairs, management, financial condition, or results of operations of the
Depositor, otherwise than as set forth or contemplated in the Prospectus as
supplemented or amended as of the Closing Date.
(p) Any certificate signed by an officer of the Depositor and delivered
to the Underwriters or counsel for the Underwriters in connection with an
offering of the Underwritten Notes shall be deemed, and shall state that it is,
a representation and warranty as to the matters covered thereby to each person
to whom the representations and warranties in this Section 1 are made.
(q) The Depositor is not, as of the commencement of the offering, an
Ineligible Issuer, as such term is defined in Rule 405 of the 1933 Act
Regulations.
(r) Neither the Issuer nor the Trust Funds are or, as a result of the
offer and sale of the Securities as contemplated in this Agreement will become,
an "investment company" or "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
(s) The Company acknowledges and agrees that the relationship between
itself and the Underwriter is an arms-length commercial relationship that
creates no fiduciary duty on the part of the Underwriter, and each party
expressly disclaims any fiduciary relationship. (t) The Depositor shall file any
Free Writing Prospectus prepared by the Depositor (including the Definitive Free
Writing Prospectus), and any Issuer Information contained in any Free Writing
Prospectus provided to it by the Underwriters under Section 6, not later than
the date of first use of such Free Writing Prospectus, except that:
(i) As to any Free Writing Prospectus or portion thereof
required to be filed that contains only the description of the final
terms of the Securities after such terms have been established for all
classes of Securities being publicly offered, such Free Writing
Prospectus or portion thereof may be filed by the Depositor within two
days of the later of the date such final terms have been established
for all classes of Securities being publicly offered and the date of
first use; and
(ii) Notwithstanding clause (a) above, as to any Free Writing
Prospectus or portion thereof required to be filed that contains only
information of a type included within the definition of ABS
Informational and Computational Materials, the Depositor shall file
such Free Writing Prospectus or portion thereof within the later of two
business days after the Underwriters first provide this information to
investors and the date upon which the Depositor is required to file the
Prospectus Supplement with the Commission pursuant to Rule 424(b)(3) of
the Act.
provided further, that prior to such use of any Free Writing
Prospectuses by the Depositor, the Underwriters must comply with their
obligations pursuant to Section 4(d) and that the Depositor shall not be
required to file any Free Writing Prospectus that does not contain substantive
changes from or additions to a Free Writing Prospectus previously filed with the
Commission.
(u) The Underwriters shall file any Free Writing Prospectus that has
been distributed by the Underwriters in a manner that could lead to its broad,
unrestricted dissemination not later than the date of first use, provided that
if that Free Writing Prospectus contains only information of a type included
within the definition of ABS Informational and Computational Materials then such
filing shall be made within the later of two business days after the
Underwriters first provide this information to investors and the date upon which
the Depositor is required to file the Prospectus Supplement with the Commission
pursuant to Rule 424(b)(3) of the Act; provided further, that the Depositor
shall not be required to file any Free Writing Prospectus that does not contain
substantive changes from or additions to a Free Writing Prospectus previously
filed with the Commission.
(v) The Depositor will cause the Prospectus Supplement to be
transmitted to the Commission for filing pursuant to Rule 424(b) under the Act
by means reasonably calculated to result in filing with the Commission pursuant
to said rule. The Depositor 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.
(w) If any Written Communication or oral statement in connection with
the offering of the Securities contains an untrue statement of material fact or
omits to state a material fact necessary to make the statements, in light of the
circumstances under which they were made, not misleading at the time that a
Contract of Sale was entered into, when taken together with all information that
was conveyed to any person with whom a Contract of Sale was entered into, then
the Underwriter shall provide any such person with the following:
(i) Adequate disclosure of the contractual arrangement;
(ii) Adequate disclosure of the person's rights under the
existing Contract of Sale at the time termination is sought;
(iii) 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
(iv) 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.
SECTION 2. Purchase and Sale. The commitment of the Underwriters to
purchase the Underwritten Notes pursuant to this Agreement shall be deemed to
have been made on the basis of the representations and warranties herein
contained and shall be subject to the terms and conditions herein set forth. The
Depositor agrees to sell to each Underwriter, and each Underwriter agrees
(except as provided in Sections 11 and 12 hereof) severally and not jointly to
purchase from the Depositor, the aggregate initial principal amounts or
percentage interests of the Underwritten Notes of each Class as set forth
opposite such Underwriter's name on Schedule B, at the purchase price or prices
set forth on Schedule B.
SECTION 3. Delivery and Payment. Delivery of and payment for the
Underwritten Notes and the Private Notes shall be made at the offices of ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, 2 World Financial Center, 29th Floor, New York, New York
10281, or at such other place as shall be agreed upon by the Underwriters and
the Depositor at 10:00 A.M. New York City time on [_______] or at such other
time or date as shall be agreed upon in writing by the Underwriters and the
Depositor (such date being referred to as the "Closing Date"). Payment shall be
made to the Depositor by wire transfer of same day funds payable to the account
of the Depositor. Delivery of the Underwritten Notes shall be made to the
Underwriters for the accounts of the several Underwriters against payment of the
purchase price thereof. The Underwritten Notes so delivered will be initially
represented by one or more certificates registered in the name of Cede & Co.,
the nominee of The Depository Trust Company ("DTC"). The interests of the
beneficial owners of the Underwritten Notes will be represented by book entries
on the records of DTC and participating members thereof. Definitive Notes will
be available only under the limited circumstances specified in the Indenture.
SECTION 4. Public Offering of Securities.
(a) It is understood by the parties hereto that, after the Registration
Statement becomes effective, the Underwriters propose to offer the Securities
for sale to the public (which may include selected dealers), as set forth in the
Prospectus and the Underwriters agree that all such offers, solicitations and
sales by them shall be made in compliance with all applicable laws and
regulations. Prior to the date of the first contract of sale made based on the
Definitive Free Writing Prospectus, the Representative has not sold any
Securities or any security backed by the Mortgage Loans, any interest in any
Securities or any such security of any Mortgage Loan.
(b) It is understood that the Underwriters will solicit offers to
purchase the Securities as follows:
(i) 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 Securities; provided, that you
shall not accept any such offer to purchase a Securities or any
interest in any Securities or Mortgage Loan or otherwise enter into any
Contract of Sale for any Securities, any interest in any Securities or
any Mortgage Loan prior to the investor's receipt of the Definitive
Free Writing Prospectus.
(ii) Any Free Writing Prospectus (other than the Definitive
Free Writing Prospectus) relating to the Securities used by any
Underwriter in compliance with the terms of this Agreement prior to the
time such Underwriter has entered into a Contract of Sale for
Securities shall prominently set forth the following statement:
The information in this free writing prospectus is
preliminary, and will be superseded by the Definitive Free
Writing Prospectus. This free writing prospectus is being
delivered to you solely to provide you with information about
the offering of the Securities referred to in this free
writing prospectus and to solicit an offer to purchase the
Securities, 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
Securities until we have accepted your offer to purchase
Securities. We will not accept any offer by you to purchase
Securities, and you will not have any contractual commitment
to purchase any of the Securities until after you have
received the Definitive Free Writing Prospectus. You may
withdraw your offer to purchase Securities 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.
(iii) Any Free Writing Prospectus relating to Securities and
used by any Underwriter in connection with marketing the Securities,
including the Definitive Free Writing Prospectus, shall prominently set
forth the following statement:
The Securities referred to in these materials are being sold
when, as and if issued. The Underwriters are advised that
Securities may not be issued that have the characteristics
described in these materials. Our obligation to sell such
Securities to the Underwriters is conditioned on the mortgage
loans and notes having the characteristics described in these
materials. If for any reason we do not deliver such
Securities, we will notify the Underwriters, 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 none of the issuer nor any
underwriter will be liable for any costs or damages whatsoever
arising from or related to such non-delivery.
(c) It is understood that you will not enter into a Contract of Sale
with any investor until the investor has received the Definitive Free Writing
Prospectus. For purposes of this Agreement, Contract of Sale has the same
meaning as in Rule 159 of the 1933 Act Regulations and all Commission guidance
relating to Rule 159, including without limitation the Commission's statement in
Securities Act Release No. 33-8501 that "a contract of sale can occur under the
federal securities laws before there is a bilateral contract under state law,
for example when a purchaser has taken all actions necessary to be bound but a
seller's obligations remain conditional under state law." The Definitive Free
Writing Prospectus shall prominently set forth the following statement:
This Definitive Free Writing Prospectus supersedes the
information in any free writing prospectus previously
delivered in connection with this offering, to the extent that
this Definitive Free Writing Prospectus is inconsistent with
any information in any free writing prospectus previously
delivered in connection with this offering.
(d) It is understood that you may prepare and provide to prospective
investors certain Free Writing Prospectuses (as defined below), subject to the
following conditions:
(i) Unless preceded or accompanied by a prospectus satisfying
the requirements of Section 10(a) of the Act, the Underwriters shall
not convey or deliver any Written Communication to any person in
connection with the initial offering of the Securities, unless such
Written Communication either (i) is made in reliance on Rule 134 under
the Act, (ii) constitutes a prospectus satisfying the requirements of
Rule 430B under the Act, (iii) is the Definitive Free Writing
Prospectus, or (iv) both (1) constitutes a Free Writing Prospectus (as
defined below) used in reliance on Rule 164 and (2) includes only
information that is within the definition of ABS Informational and
Computational Materials as defined in Item 1100 of Regulation AB.
(ii) Each Underwriter shall comply with all applicable laws
and regulations in connection with the use of Free Writing
Prospectuses, including but not limited to Rules 164 and 433 of the
1933 Act Regulations and all Commission guidance relating to Free
Writing Prospectuses, including but not limited to Commission Release
No. 33-8591.
(iii) 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 A hereto and (ii) has been either prepared by, or has been
reviewed and approved by, the Depositor. "Underwriter Derived
Information" shall refer to information of the type described in clause
(5) of such footnote 271 when prepared by an Underwriter.
(iv) All Free Writing Prospectuses provided to prospective
investors, whether or not filed with the Commission, shall bear a
legend on each page including the following statement:
"THE DEPOSITOR HAS FILED A REGISTRATION STATEMENT (INCLUDING A
PROSPECTUS) WITH THE SEC FOR THE OFFERING TO WHICH THIS
COMMUNICATION RELATES. BEFORE YOU INVEST, YOU SHOULD READ THE
PROSPECTUS IN THAT REGISTRATION STATEMENT AND OTHER DOCUMENTS
THE 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 ▇▇▇▇▇ ON THE SEC WEB
SITE AT ▇▇▇.▇▇▇.▇▇▇ [AT AMERICAN ▇▇▇▇.▇▇▇, OR AT UNDERWRITER'S
WEBSITE]. 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 1-8[XX-XXX-XXXX].
The Depositor shall have the right to require additional specific
legends or notations to appear on any Free Writing Prospectus, the right to
require changes regarding the use of terminology and the right to determine the
types of information appearing therein.
(v) The Underwriters shall deliver to the Depositor and its
counsel, no later than two business days prior to the proposed date of
first use thereof, (i) any Free Writing Prospectus prepared by or on
behalf of the Underwriters that contains any information that, if
reviewed and approved by the Depositor, would be Issuer Information,
and (ii) any Free Writing Prospectus or portion thereof that contains
only a description of the final terms of the Securities after such
terms have been established for all classes of Securities being
publicly offered. No information in any Free Writing Prospectus shall
consist of information of a type that is not included within the
definition of ABS Informational and Computational Materials. To
facilitate filing to the extent required by Section 6(a)(i) or
6(a)(iv), as applicable, all Underwriter Derived Information shall be
set forth in a document separate from the document including Issuer
Information. The Underwriters shall provide to the Depositor, for
filing as provided in Section 6, copies (in such format as required by
the Depositor) of all Free Writing Prospectuses. All Free Writing
Prospectuses described in this subsection (v) must be approved by the
Depositor before the Underwriters provide the Free Writing Prospectus
to investors pursuant to the terms of this Agreement.
(vi) Each Underwriter agrees that all information included in
the Free Writing Prospectuses shall be prepared, to the extent
possible, based on the information contained in the Registration
Statement and anticipated to be included in the Prospectus. None of the
information in the Free Writing Prospectuses may conflict with the
information contained in the Prospectus or the Registration Statement.
(vii) The Depositor shall not be obligated to file any Free
Writing Prospectuses that have been determined to contain any material
error or omission, unless the Depositor is required to file the Free
Writing Prospectus pursuant to Section 6(a) below. In the event that an
Underwriter becomes aware that, as of the date on which an investor
entered into an agreement to purchase any Securities, any Free Writing
Prospectus prepared by or on behalf of the Underwriters and delivered
to such investor contained any untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements contained therein, in light of the circumstances under which
they were made, not misleading, such Underwriter shall notify the
Depositor thereof as soon as practical but in any event within one
business day after discovery.
(viii) If the Underwriters do not provide any Free Writing
Prospectuses to the Depositor pursuant to subsection (v) above, the
Underwriters shall be deemed to have represented, as of the Closing
Date, that they did not provide any prospective investors with any
information in written or electronic form in connection with the
offering of the Securities that is required to be filed with the
Commission by the Depositor as a Free Writing Prospectus (other than
the Definitive Free Writing Prospectus) in accordance with the 1933 Act
Regulations.
(ix) In the event of any delay in the delivery by the
Underwriters to the Depositor of any Free Writing Prospectuses required
to be delivered in accordance with subsection (v) above, or in the
delivery of the accountant's comfort letter in respect thereof pursuant
to subsection (vi) above, the Depositor shall have the right to delay
the release of the Prospectus to investors or to the Underwriters, to
delay the Closing Date and to take other appropriate actions in each
case as necessary in order to allow the Depositor to comply with its
agreement set forth in Section 6 to file the Free Writing Prospectuses
by the time specified therein.
(x) Each Underwriter represents that it has in place, and
covenants that it shall maintain internal controls and procedures which
it reasonably believes to be sufficient to ensure full compliance with
all applicable legal requirements of the 1933 Act Regulations with
respect to the generation and use of Free Writing Prospectuses in
connection with the offering of the Securities. In addition, each
Underwriter shall, for a period of at least three years after the date
hereof, maintain written and/or electronic records of the following:
(A) Any written communications in respect of the Securities
not deemed a Prospectus or a Free Writing Prospectus because
its content is limited to the statements permitted by Rule 134
of the Securities Act;
(B) any Free Writing Prospectus used to solicit offers to
purchase Securities;
(C) regarding each Free Writing Prospectus delivered to a
prospective investor, the date of such delivery and identity
of such prospective investor;
(D) regarding each offer to purchase Securities received by
such Underwriter, the identity of the offeror, the date the
offer was made and the proposed terms and allocation of the
Securities offered to be purchased; and
(E) regarding each Contract of Sale entered into by such
Underwriter, the date, identity of the investor and the terms
of such Contract of Sale, including the amount and price of
Securities subject to such Contract of Sale.
(xi) Each Underwriter covenants with the Depositor that after
the final Prospectus is available such Underwriter shall not distribute
any written information concerning the Securities to a prospective
investor unless such information is preceded or accompanied by the
final Prospectus.
(xii) Each Underwriter agrees to provide written notice to the
Depositor of the date it first enters into any Contract of Sale for a
Securities.
(e) Each Underwriter further agrees that (i) it will include in every
confirmation sent out the notice required by Rule 173 informing the investor
that the sale was made pursuant to the Registration Statement and that the
investor may request a copy of the Prospectus from such Underwriter; (ii) if a
paper copy of the Prospectus is requested by a person who receives a
confirmation, such Underwriter shall deliver a paper copy of such Prospectus;
(iii) if an electronic copy of the Prospectus is delivered by an Underwriter for
any purpose, such copy shall be the same electronic file containing the
Prospectus in the identical form transmitted electronically to such Underwriter
by or on behalf of the Depositor specifically for use by such Underwriter
pursuant to this Section 4(e); for example, if the Prospectus is delivered to an
Underwriter by or on behalf of the Depositor in a single electronic file in .pdf
format, then such Underwriter will deliver the electronic copy of the Prospectus
in the same single electronic file in .pdf format; and (iv) it has not used, and
during the period for which it has an obligation to deliver a "prospectus" (as
defined in Section 2(a)(10) of the Act) relating to the Securities (including
any period during which the Underwriters have such delivery obligation in its
capacity as a "dealer" (as defined in Section 2(a)(12) of the Act)) it will not
use any internet website or electronic media containing information for
prospective investors, including any internet website or electronic media
maintained by third parties, in connection with the offering of the Securities,
except in compliance with applicable laws and regulations. Each Underwriter
further agrees that (i) if it delivers to an investor the Prospectus in .pdf
format, upon such Underwriters' receipt of a request from the investor within
the period for which delivery of the Prospectus is required, such Underwriter
will promptly deliver or cause to be delivered to the investor, without charge,
a paper copy of the Prospectus and (ii) it will provide to the Depositor any
Free Writing Prospectuses, or portions thereof, which the Depositor is required
to file with the Commission in electronic format and will use reasonable efforts
to provide to the Depositor such Free Writing Prospectuses, or portions thereof,
in either Microsoft Word(R) or Microsoft Excel(R) format and not in a PDF,
except to the extent that the Depositor, in its sole discretion, waives such
requirements.
(f) In the event that an Underwriter uses a road show (as defined in
Rule 433) in connection with the offering of the Securities, all information in
the road show will be provided orally only, and not as a Written Communication.
Each Underwriter agrees that any slideshow used in connection with a road show
(i) will only be provided as part of the road show and not separately, (ii) if
handed out at any meeting as a hard copy, will be retrieved prior to the end of
the meeting, and (iii) will otherwise be used only in a manner that does not
cause the slideshow to be treated as a Free Writing Prospectus.
SECTION 5. Offering by the Underwriters. It is understood that, subject
to the terms and conditions hereof, the several Underwriters propose to offer
the Underwritten Notes for sale to the public as set forth in the Prospectus.
SECTION 6. Agreements.
(a) The Depositor agrees as follows:
(i) To prepare the Prospectus in a form approved by the
Underwriters and to file such Prospectus pursuant to Rule 424(b) under
the Securities Act not later than the Commission's close of business on
the second business day following the availability of the Prospectus to
the Underwriters; to make no further amendment or any supplement to the
Registration Statement or to the Prospectus prior to the Closing Date
except as permitted herein; to advise the Underwriters, promptly after
it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective prior to the
termination of the offering of the Underwritten Notes or any supplement
to the Prospectus or any amended Prospectus has been filed and to
furnish the Underwriters or their counsel with copies thereof without
charge; to file promptly all reports and any definitive proxy or
information statements required to be filed by the Depositor with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of the Prospectus and, for so long
as the delivery of a prospectus is required in connection with the
offering or sale of the Underwritten Notes; to promptly advise the
Underwriters of their receipt of notice of the issuance by the
Commission of any stop order or the institution of or, to the knowledge
of the Depositor, the threatening of any proceeding for such purpose,
or of: (i) any order preventing or suspending the use of the
Prospectus; (ii) the suspension of the qualification of the
Underwritten Notes for offering or sale in any jurisdiction; (iii) the
initiation of or threat of any proceeding for any such purpose or (iv)
any request by the Commission for the amending or supplementing of the
Registration Statement or the Prospectus or for additional information.
In the event of the issuance of any stop order or of any order
preventing or suspending the use of the Prospectus or suspending any
such qualification, the Depositor promptly shall use its best efforts
to obtain the withdrawal of such order by the Commission.
(ii) To furnish promptly to the Underwriters and to counsel
for the Underwriters a signed copy of the Registration Statement as
originally filed with the Commission, and of each amendment thereto
filed with the Commission, including all consents and exhibits filed
therewith.
(iii) To deliver promptly to the Underwriters without charge
such number of the following documents as the Underwriters shall
reasonably request: (i) conformed copies of the Registration Statement
as originally filed with the Commission and each amendment thereto (in
each case including exhibits); (ii) the Prospectus and any amended or
supplemented Prospectus and (iii) any document incorporated by
reference in the Prospectus (including exhibits thereto). If the
delivery of a prospectus is required at any time prior to the
expiration of nine months after the Closing Date in connection with the
offering or sale of the Underwritten Certificates, and if at such time
any events shall have occurred as a result of which the Prospectus as
then amended or supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not misleading,
or, if for any other reason it shall be necessary during such same
period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus
in order to comply with the Securities Act or the Exchange Act, the
Depositor shall notify the Underwriters and, upon any Underwriter's
request, shall file such document and prepare and furnish without
charge to the Underwriters and to any dealer in securities as many
copies as the Underwriters may from time to time reasonably request of
an amended Prospectus or a supplement to the Prospectus which corrects
such statement or omission or effects such compliance, and in case the
Representative is required to deliver a Prospectus in connection with
sales of any of the Underwritten Notes at any time nine months or more
after the Effective Time, upon the request of the Underwriters but at
their expense, the Depositor shall prepare and deliver to the
Underwriters as many copies as the Underwriters may reasonably request
of an amended or supplemented Prospectus complying with Section
10(a)(3) of the Securities Act.
(iv) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Depositor or the
Underwriters, be required by the Securities Act or requested by the
Commission. Neither the Underwriters' consent to nor their distribution
of any amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 7.
(v) To furnish the Underwriters and counsel for the
Underwriters, prior to filing with the Commission, and to obtain the
consent of the Underwriters for the filing of the following documents
relating to the Notes: (i) any Post-Effective Amendment to the
Registration Statement or supplement to the Prospectus, or document
incorporated by reference in the Prospectus or (ii) Prospectus pursuant
to Rule 424 of the Rules and Regulations.
(vi) To use commercially reasonable efforts, in cooperation
with the Underwriters, to qualify the Underwritten Notes for offering
and sale under the applicable securities laws of such states and other
jurisdictions of the United States or elsewhere as the Underwriters may
reasonably designate, and maintain or cause to be maintained such
qualifications in effect for as long as may be required for the
distribution of the Underwritten Notes. The Depositor will file or
cause the filing of such statements and reports as may be required by
the laws of each jurisdiction in which the Underwritten Notes have been
so qualified; provided, however, that the Depositor shall not be
required to qualify to do business in any jurisdiction where it is not
now so qualified or to take any action which would subject it to
general or unlimited service of process in any jurisdiction where it is
now so subject.
(vii) On or before the Closing Date, it shall execute and
deliver to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP ("TPW") a copy of a tax
representation letter, provided to the Underwriters by TPW, in which
each Underwriter certifies as to the accuracy of the information that
is provided by such Underwriter to the Indenture Trustee, and which
information each Underwriter recognizes shall be relied upon by TPW.
(viii) So long as the Underwritten Notes and the Non-Offered
Notes shall be outstanding the Depositor shall cause the Indenture
Trustee, pursuant to the Sale and Servicing Agreement, to deliver to
the Underwriters as soon as such statements are furnished to the
Indenture Trustee: (i) the annual statement as to compliance delivered
to the Indenture Trustee pursuant to Section 4.26 of the Sale and
Servicing Agreement; (ii) the annual statement of a firm of independent
public accountants furnished to the Indenture Trustee pursuant to
Section 4.27 of the Sale and Servicing Agreement; (iii) the monthly
servicing report furnished to the Trustee and (iv) the monthly reports
furnished to the Noteholders pursuant to Section 4.01 of the Sale and
Servicing Agreement.
(b) Each Underwriter represents, warrants, covenants and agrees with
the Depositor that:
(i) It either (A) has not provided any potential investor with
a Collateral Term Sheet (that is required to be filed with the
Commission within two business days of first use under the terms of the
Public Securities Association Letter as described below) or (B) has,
prior to its first delivery of such Collateral Term Sheet to a
potential investor, delivered such Collateral Term Sheet (in hard copy)
to the Depositor or its counsel and has substantially contemporaneously
with its first delivery of such Collateral Term Sheet to a potential
investor, delivered such Collateral Term Sheet to the Depositor or its
counsel.
(ii) It either (A) has not provided any potential investor
with a Structural Term Sheet, Series Term Sheets or Computational
Materials or (B) has, prior to its first delivery of any such
Structural Term Sheet, Series Term Sheets or Computational Materials to
a potential investor, delivered such Structural Term Sheet, Series Term
Sheets or Computational Materials to the Depositor or its counsel and
has promptly provided any such Structural Term Sheet, Series Term
Sheets or Computational Materials to the Depositor or its counsel.
(iii) Each Collateral Term Sheet bears a legend indicating
that the information contained therein will be superseded by the
description of the collateral contained in the Prospectus Supplement
and, except in the case of the initial Collateral Term Sheet, that such
information supersedes the information in all prior Collateral Term
Sheets.
(iv) Each Structural Term Sheet, Series Term Sheet and all
Computational Materials bear a legend substantially to the effect that
such materials were prepared by the Underwriters, the Depositor has not
authorized the dissemination thereof and such materials do not
constitute an offer to sell or a solicitation of an offer to purchase
any Notes.
(v) It (at its own expense) agrees to obtain and provide to
the Depositor one or more accountants' letters in form and substance
reasonably satisfactory to the Underwriter, the Depositor relating to
the Collateral Term Sheets, Structural Term Sheets, Series Term Sheets
and Computational Materials, which accountants' letters shall be
addressed to the Depositor.
(vi) It has not, and will not, without the prior written
consent of the Depositor, provide any Collateral Term Sheets,
Structural Term Sheets, Series Term Sheets or Computational Materials
to any investor after the date of this Agreement and prior to the
delivery of the Prospectus to such investor.
In connection with any transaction contemplated by this Agreement, the
Depositor and each of its affiliates maintain customary, arm's-length business
relationships with the Undewriter and each of its affiliates, and no fiduciary
duty on the part of the Underwriter or any of its affiliates is thereby or
hereby intended or created, and the express disclaimer of any such fiduciary
relationship on the part of the Underwriter and each of its affiliates is hereby
acknowledged and accepted by the Depositor and each of its affiliates.
For purposes of this Agreement, Series Term Sheets, Collateral Term
Sheets and Structural Term Sheets shall have the respective meanings assigned to
them (a) in the case of Series Term Sheets, in the no-action letter addressed to
Greenwood Trust Company, Discover Card Master Trust I dated April 5, 1996 and
(b) in the case of Collateral Term Sheets and Structural Term Sheets, in the
February 13, 1995 letter of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ on behalf of the
Public Securities Association (which letter, and the SEC staff's response
thereto, are publicly available February 17, 1995). The term "Collateral Term
Sheet" as used herein includes any subsequent Collateral Term Sheet that
reflects a substantive change in the information presented. Computational
Materials has the meaning assigned to it in the no-action letter dated May 20,
1994 issued by the Division of Corporation Finance of the Commission to ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ Acceptance Corporation ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Co. Incorporated, and ▇▇▇▇▇▇
Structured Asset Corporation, the no-action letter dated May 27, 1994 issued by
the Division of Corporation Finance of the Commission to the Public Securities
Association and the no-action letter of February 17, 1995 issued by the
Commission to the Public Securities Association.
SECTION 7. Conditions to the Underwriters' Obligation. The obligations
of the Underwriters hereunder to purchase the Underwritten Notes pursuant to
this Agreement are subject to the following conditions as of the Closing Date:
(a) Each of the obligations of the Depositor required to be performed
by it on or prior to the Closing Date pursuant to the terms of the Operative
Agreements shall have been duly performed and complied with and all of the
representations and warranties of the Depositor under any of the Operative
Agreements shall be true and correct as of the Closing Date and no event shall
have occurred which, with notice or the passage of time, would constitute a
default under any of the Operative Agreements, and the Underwriters shall have
received Notes to the effect of the foregoing, each signed by an authorized
officer of the Depositor.
(b) Prior to the Closing Date, (i) the Depositor shall have received
confirmation of the effectiveness of the Registration Statement and (ii) no stop
order suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or, to the
knowledge of the Depositor, shall be contemplated by the Commission. Any request
of the Commission for inclusion of additional information in the Registration
Statement or the Prospectus shall have been complied with.
(c) The Underwriters shall have received letters dated on or before the
date on which the Prospectus Supplement is dated and printed, in form and
substance acceptable to the Underwriters and their counsel, prepared by Deloitte
& Touche LLP (a) regarding certain numerical information contained or
incorporated by reference in the Prospectus Supplement and (b) relating to
certain agreed upon procedures as requested by the Underwriters relating to the
Mortgage Loans.
(d) The Mortgage Loans will be acceptable to Standard & Poor's, a
division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("S&P"), ▇▇▇▇▇'▇ Investors Services,
Inc. ("Moody's"), ▇▇▇▇▇ Ratings ("Fitch") and Dominion Bond Ratings Service,
Inc. ("DBRS") in their sole discretion.
(e) The Underwriters shall have received the following additional
closing documents, in form and substance satisfactory to the Underwriters and
their counsel:
(i) the Operative Agreements and all documents required
thereunder, duly executed and delivered by each of the parties thereto
other than the Underwriters and their affiliates;
(ii) a secretary's certificate of a secretary of the
Depositor, a secretary's certificate of a secretary of the Seller and
an officer's certificate of an officer of the Servicer, in each case
dated as of the Closing Date and reasonably satisfactory in form and
substance to the Underwriters and counsel for the Underwriters with
resolutions of the applicable board of directors and a copy of the
charter and by-laws of the Depositor, the Seller and the Servicer, as
applicable;
(iii) an officer's certificate of an officer of the Originator
dated as of the Closing Date and reasonably satisfactory in form and
substance to the Underwriters and counsel for the Underwriters with
resolutions of the applicable board of directors and a copy of the
charter and by-laws;
(iv) an officer's certificate of an officer of the Servicer
dated as of the Closing Date and reasonably satisfactory in form and
substance to the Underwriters and counsel for the Underwriters stating
(i) the officer has carefully examined the Sale and Servicing
Agreement, (ii) the representations and warranties of Servicer in the
Sale and Servicing Agreement are true and correct in all material
respects at and as of the date hereof with the same effect as if made
on the date hereof, (iii) the Servicer has complied with all of the
agreements set forth in the Sale and Servicing Agreement and satisfied
all the conditions on its part to be performed or satisfied at or prior
to the date hereof, and (iv) no event has occurred that would
constitute a default under the Sale and Servicing Agreement;
(v) an officer's certificate of an officer of the Indenture
Trustee, dated as of the Closing Date, reasonably satisfactory in form
and substance to the Underwriters and counsel for the Underwriters;
(vi) an opinion of in-house counsel to the Depositor,
reasonably satisfactory in form and substance to the Underwriters and
counsel for the Underwriters, dated the Closing Date, as to various
matters;
(vii) an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to
the Depositor, dated the Closing Date, reasonably satisfactory in form
and substance to the Underwriters and counsel for the Underwriters, as
to various matters;
(viii) an opinion of counsel to the Servicer, dated the
Closing Date, reasonably satisfactory in form and substance to the
Underwriters and counsel for the Underwriters, as to various matters;
(ix) such opinions of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to
the Depositor, in forms reasonably satisfactory to the Underwriters,
their counsel, S&P, Moody's, Fitch and DBRS as to such additional
matters not opined to in the opinion delivered pursuant to clause
(viii) above as shall be required for the assignment of the ratings set
forth below.
(x) A letter from S&P, Moody's, Fitch and DBRS that they have
assigned the following ratings to the Underwritten Notes:
Moody's S&P Fitch DBRS
-------- -------- --------- ----------
IA-1......... Aaa AAA AAA AAA
IIA-1a....... Aaa AAA AAA AAA
IIA-1b....... Aaa AAA AAA AAA
IIA-1c....... Aaa AAA AAA AAA
IIA-2c....... Aaa AAA AAA AAA
IIA-3c....... Aaa AAA AAA AAA
IIA-4c....... Aaa AAA AAA AAA
M-1.......... Aa1 AA+ AA+ AA (high)
M-2.......... Aa2 AA+ AA+ AA (high)
M-3.......... Aa3 AA AA+ AA (high)
M-4.......... A1 AA- AA+ AA (high)
M-5.......... A2 A+ AA+ AA
M-6.......... A3 A AA+ AA (low)
M-7.......... Baa1 A- AA A (high)
M-8.......... Baa2 BBB+ AA- A
M-9.......... Baa3 BBB A A (low)
(xi) an opinion of counsel to the Indenture Trustee, dated the
Closing Date, in form and substance reasonably satisfactory to the
Underwriters, their counsel, S&P, Moody's, DBRS and Fitch; and
(xii) such other opinions and closing documents as the
Underwriters and their counsel may reasonably request, in form and
substance reasonably satisfactory to the Underwriters and their
counsel.
(f) All proceedings in connection with the transactions contemplated by
this Agreement and all documents incident hereto shall be reasonably
satisfactory in form and substance to the Underwriters and their counsel.
(g) Subsequent to the execution and delivery of this Agreement none of
the following shall have occurred: (i) trading in securities generally on the
New York Stock Exchange, the American Stock Exchange or the over-the-counter
market shall have been suspended or minimum prices shall have been established
on either of such exchanges or such market by the Commission, by such exchange
or by any other regulatory body or governmental authority having jurisdiction;
(ii) a banking moratorium shall have been declared by Federal or New York state
authorities; (iii) the United States shall have become engaged in material
hostilities, there shall have been an escalation of such hostilities involving
the United States or there shall have been a declaration of war by the United
States; or (iv) there shall have occurred such a material adverse change in
general economic, political or financial conditions (or the effect of
international conditions on the financial markets of the United States shall be
such) which is material and adverse, and in the case of any of the events
specified in clauses (i), through (iv), such event makes it in the judgment of
the Underwriters, impractical to market the Underwritten Notes.
(h) If any condition, specified in this Section 6 shall have not been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Underwriters by notice to the Depositor at any time at or prior to the
Closing Date, and such termination shall be without liability of any party to
any other party except as provided in Sections 7 and 8.
(i) The Underwriters hereby authorize Greenwich to execute on behalf of
all the Underwriters, each of (a) the letter to the Indenture Trustee concerning
registration and denomination instructions for the Notes purchased by the
Underwriters, (b) the Cross Receipt relating to the Depositor's receipt of the
proceeds from the sale of Notes and (c) the original issue discount pricing
letter.
SECTION 8. Payment of Expenses. The Depositor agrees to pay:
(a) (i) the costs incident to the authorization, issuance, sale and
delivery of the Underwritten Notes and the Non-Offered Notes and any taxes
payable in connection therewith; (ii) the costs incident to the preparation,
printing and filing under the Securities Act of the Registration Statement and
any amendments and exhibits thereto; (iii) the costs of distributing the
Registration Statement as originally filed and each amendment thereto and any
post-effective amendments thereof (including, in each case, exhibits), any
preliminary prospectus, the Prospectus and any amendment or supplement to the
Prospectus or any document incorporated by reference therein, all as provided in
this Agreement; (iv) the costs of reproducing and distributing this Agreement;
(v) any fees charged by securities rating services for rating the Underwritten
Notes; (vi) the cost of accountants' comfort letters; and (vii) all other costs
and expenses incidental to the performance of the obligations of the Depositor
(including costs and expenses of counsel to the Depositor); provided that,
except as provided in this Section 8, the Underwriters shall pay their own costs
and expenses, including the costs and expenses of their counsel, any transfer
taxes on the Underwritten Notes which they may sell and the expenses of
advertising any offering of the Underwritten Notes made by the Underwriters.
If this Agreement is terminated because of a breach of the Depositor of
any covenant or agreement hereunder (other than the failure of the closing
condition set forth in Section 7(g) to be met), the Depositor shall cause the
Underwriters to be reimbursed for all reasonable out-of-pocket expenses,
including fees and disbursements of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the
Underwriters.
SECTION 9. Indemnification and Contribution.
(a) The Depositor indemnifies and holds harmless each Underwriter, each
Underwriter's respective officers, directors, partners and each person, if any,
who controls any Underwriter within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, as follows:
(i) against any and all losses, claims, expenses, damages or
liabilities, joint or several, to which such Underwriter or such
controlling person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof including, but not limited to, any loss,
claim, expense, damage or liability related to purchases and sales of
the Underwritten Notes) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in
the Registration Statement, Definitive Free Writing Prospectus, or in
any Issuer Information contained in any other Free Writing Prospectus,
or in any Underwriter Derived Information to the extent caused by any
material error in the Pool Information, or in the Registration
Statement for the registration of the Securities as originally filed or
in any amendment thereof or other filing incorporated by reference
therein, or in the Prospectus, or any amendment or supplement thereto,
or arise out of, or are based upon, the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements made therein not misleading; and will
reimburse each Underwriter and each such controlling person for any
legal or other expenses reasonably incurred by such Underwriter or such
controlling person in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Depositor will not be liable in
any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or
omission, or alleged untrue statement or omission, made in (x) any of
such documents in reliance upon and in conformity with any
Underwriter's Information or (y) any Derived Information in any
Collateral Term Sheet, Structural Term Sheet, Series Term Sheet or
Computational Materials, except in the case of this clause (y) to the
extent that any untrue statement or alleged untrue statement or
omission therein results (or is alleged to have resulted) from an error
or material omission in the information either in the Prospectus for
which the Depositor is responsible or concerning the characteristics of
the Mortgage Loans furnished by the Seller to the Underwriters for use
in the preparation of any Collateral Term Sheet, Structural Term Sheet,
Series Term Sheet and/or Computational Materials (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 Seller or the Depositor provided written
notice of such error to the Underwriters prior to the confirmation of
the sale of the applicable Notes (any such uncorrected Pool
Information, a "Pool Error"); except insofar as such losses, claims,
damages, or liabilities are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon any
information with respect to which the Underwriters have agreed to
indemnify the Depositor pursuant to Section 9(b). This indemnity
agreement will be in addition to any liability which the Depositor may
otherwise have.
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, if such settlement is
effected with the written consent of the Depositor; and
(iii) against any and all expense whatsoever (including the
fees and disbursements of counsel chosen by any such Underwriter),
reasonably incurred in investigating, preparing or defending against
any litigation, or investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under clause (i) or clause (ii) above.
This indemnity agreement will be in addition to any liability which the
Depositor may otherwise have.
(b) Each Underwriter, severally and not jointly, agrees to indemnify
and hold harmless the Depositor, each of its directors, each of its officers who
have signed the Registration Statement and each person, if any, who controls the
Depositor within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act, against any and all losses, claims, expenses, damages or
liabilities to which the Depositor or any such director, officer or controlling
person may become subject, under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in (i) Derived Information provided by such
Underwriter, except to the extent that any untrue statement or alleged untrue
statement contained in the Derived Information is the result of a Pool Error and
(ii) the Registration Statement, the Prospectus or any amendment or supplement
thereto, or arise out of, or are based upon, the omission or the alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements made therein not misleading, but with respect
to clause (b)(ii) above, only to the extent that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with the Underwriters' Information of such Underwriter;
and will reimburse any legal or other expenses reasonably incurred by the
Depositor or any such director, officer or controlling person in connection with
investigating or defending any such loss, claim, damage, liability or action.
This indemnity agreement will be in addition to any liability which such
Underwriter may otherwise have. (iii) the Underwriters' Information and the
decrement/yield tables, (iv) 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, (v) any Free Writing Prospectus for which the
conditions set forth in Section 4(d)(v) above are not satisfied with respect to
the prior approval by the Depositor, (vi) any portion of any Free Writing
Prospectus (other than the Definitive Free Writing Prospectus) not constituting
Issuer Information, (vii) any liability resulting from the Underwriters' failure
to provide any investor with the Definitive Free Writing Prospectus prior to
entering into a Contract of Sale with such investor or failure to file any Free
Writing Prospectus required to be filed by the Underwriter in accordance with
Section 6(i), and (vii) any liability resulting from the Underwriters' failure
to comply with Section 4(f) in connection with any road show. This indemnity
agreement will be in addition to any liability which the Underwriter may
otherwise have.
The Depositor acknowledges that the Underwriters' Information and the
decrement/yield tables constitute 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.
(c) Promptly after receipt by an indemnified party under this Section 9
of notice of the commencement of any action described therein, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 9, notify the indemnifying party of the commencement
thereof, but the omission so to notify the indemnifying party will not relieve
the indemnifying party from any liability that it may have to any indemnified
party otherwise than under this Agreement. In case any such action is brought
against any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and, to the extent that it may wish to do so, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party under this
Section 9, such indemnifying party shall not be liable for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation.
Any indemnified party shall have the right to employ separate counsel
in any such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless: (i) the employment thereof has been specifically authorized by the
indemnifying party in writing; (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party and in the reasonable judgment of such counsel it is
advisable for such indemnified party to employ separate counsel; (iii) a
conflict or potential conflict exists (based on advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party (in
which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party) or (iv) the indemnifying
party has failed to assume the defense of such action and employ counsel
reasonably satisfactory to the indemnified party, in which case, if such
indemnified party notifies the indemnifying party in writing that it elects to
employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such action
on behalf of such indemnified party, it being understood, however, the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to local counsel) at any time for all such indemnified parties, which
firm shall be designated in writing by the related Underwriter, if the
indemnified parties under this Section 9 consist of one or more Underwriter or
any of its controlling persons, by the Underwriters, if the indemnified parties
under this Section 9 consist of more than one Underwriter or their controlling
persons or the Depositor, if the indemnified parties under this Section 9
consist of the Depositor or any of the Depositor's directors, officers or
controlling persons.
Each indemnified party, as a condition of the indemnity agreements
contained in Section 9(a) and Section 9(b), shall use its best efforts to
cooperate with the indemnifying party in the defense of any such action or
claim. No indemnifying party shall be liable for any settlement of any such
action effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent or if there be a
final judgment for the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against any
loss or liability (to the extent set forth in Section 9(a) or Section 9(b) as
applicable) by reason of such settlement or judgment.
Notwithstanding the foregoing paragraph, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement.
(d) If the indemnification provided for in Section 9(a) or 9(b)(ii) is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Depositor on the one hand and the Underwriters on the other from the
offering of the Underwritten Notes or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Depositor on the one hand and the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities as well as any other
relevant equitable considerations. If the indemnification provided for in
Section 9(b)(i) is unavailable or insufficient to hold harmless the indemnified
party under Section 9(b)(i), then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in Section 9(b)(i) in such proportion
as appropriate to reflect the relative fault of the Depositor on one hand and
the Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities as well as any
other relevant equitable considerations. The relative benefits received by the
Depositor on the one hand and the Underwriters on the other shall be deemed to
be in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Depositor bear to the total underwriting
discounts and commissions received by the Underwriters. The relative fault shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Depositor or by the
Underwriters on behalf of the several Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to above in the
first sentence of this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of underwriting
discounts and commissions received by such Underwriter. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11 (f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) For purposes hereof, as to each Underwriter, the term "Derived
Information" means such information, if any, in the Series Term Sheets,
Collateral Term Sheets, Structural Term Sheets and/or Computational Materials
that is not contained in (i) the Prospectus, Registration Statement or
amendments or supplements to either, taking into account information
incorporated therein by reference (other than information incorporated by
reference from the Series Term Sheets, Collateral Term Sheets, Structural Term
Sheets and/or Computational Materials) or (ii) any Pool Information, except to
the extent that any such information results from a Pool Error.
(f) Each Underwriter agrees to deliver to the Depositor any Collateral
Term Sheets, Structural Term Sheets, Computational Materials and Series Term
Sheets which it has prepared in connection with the Underwritten Notes prior to
the dissemination of such materials to any potential investor.
SECTION 10. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or contained in certificates of officers of the Depositor submitted
pursuant hereto shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of the Underwriters or controlling
persons thereof, or by or on behalf of the Depositor and shall survive delivery
of any Underwritten Notes to the Underwriters.
SECTION 11. Default by an Underwriter. If any one or more Underwriter
shall fail to purchase and pay for any of the Underwritten Notes agreed to be
purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions that the portion
of the Underwritten Notes set forth opposite their names in Schedule B hereto
bears to the aggregate initial principal balance or percentage interest of
Underwritten Notes set forth opposite the names of all the remaining
Underwriters) the Underwritten Notes that the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the event
that the initial principal amount or percentage interest of Underwritten Notes
that the defaulting Underwriter or Underwriters agreed but failed to purchase
shall exceed 0.25% of the aggregate initial principal amount or percentage
interest of Underwritten Notes set forth in Schedule B hereto, the remaining
Underwriters shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Underwritten Notes and if such nondefaulting
Underwriters do not purchase all the Underwritten Notes this Agreement will
terminate without liability to any nondefaulting Underwriter or the Depositor.
In the event of a default by any Underwriter as set forth in this Section 11,
the Closing Date for the Underwritten Notes shall be postponed for such period,
not exceeding seven days, as the non-defaulting Underwriter shall determine in
order that the required changes in any other documents or arrangements may be
effected. Nothing contained in this Agreement shall relieve any defaulting
Underwriter of its liability, if any, to the Depositor and to any nondefaulting
Underwriter for damages occasioned by its default hereunder.
SECTION 12. Termination of Agreement. The Underwriters may terminate
this Agreement immediately upon notice to the Depositor, at any time at or prior
to the Closing Date if the events set forth in Section 7(h) of this Agreement
shall occur and be continuing, or if any other closing condition set forth in
Section 7 shall not have been fulfilled when required to be fulfilled. In the
event of any such termination, the provisions of Section 8, the indemnity and
contribution agreements set forth in Section 9, and the provisions of Sections
10, 16 and 18 shall remain in effect.
SECTION 13. Additional Underwriting of the Securities. Each Underwriter
agrees that in connection with any subsequent underwriting of the
non-underwritten Securities acquired from the Depositor or its affiliates, the
Underwriter:
(a) Will enter into an underwriting agreement with the Depositor
substantially similar to this Agreement;
(b) Will provide a copy of the Prospectus Supplement, together with any
intervening amendments thereof and supplements thereto, and copies of all
remittance reports to investors in the non-underwritten Securities, together
with any additional disclosure mutually agreeable to the Underwriter and the
Depositor; and
(c) Will not require an underwriting fee.
In connection with any subsequent underwriting, the Depositor shall
provide to the Underwriter any additional documentation, letters or opinions as
it may reasonably require, including, without limitation, letters and opinions
provided by counsel to the Issuer updated to reflect the subsequent
underwriting.
SECTION 14. Notices. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) [if to Greenwich Capital Markets, Inc., shall be delivered or sent
by mail, telex or facsimile transmission to Greenwich Capital Markets, Inc., ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Facsimile (▇▇▇) ▇▇▇-▇▇▇▇,
Attention: Legal; and]
(b) [if to the Depositor, shall be delivered or sent by mail, telex or
facsimile transmission to care of Financial Asset Securities Corporation, ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Facsimile (▇▇▇) ▇▇▇-▇▇▇▇,
Attention: Legal.]
SECTION 15. Persons Entitled to the Benefit of this Agreement. This
Agreement shall inure to the benefit of and be binding upon the Underwriters and
the Depositor, and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
the representations, warranties, indemnities and agreements contained in this
Agreement shall also be deemed to be for the benefit of the person or persons,
if any, who control any of the Underwriters within the meaning of Section 15 of
the Securities Act, and for the benefit of each Underwriter's respective
officers, directors and partners and for the benefit of directors of the
Depositor, officers of the Depositor who have signed the Registration Statement
and any person controlling the Depositor within the meaning of Section 15 of the
Securities Act. Nothing in this Agreement is intended or shall be construed to
give any person, other than the persons referred to in this Section 15, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
SECTION 16. Survival. The respective indemnities, representations,
warranties and agreements of the Depositor and the Underwriters contained in
this Agreement, or made by or on behalf of them, respectively, pursuant to this
Agreement, shall survive the delivery of and payment for the Notes and shall
remain in full force and effect, regardless of any investigation made by or on
behalf of any of them or any person controlling any of them.
SECTION 17. Definition of the Term "Business Day". For purposes of this
Agreement, "Business Day" means any day on which the New York Stock Exchange,
Inc. is open for trading.
SECTION 18. Governing Law: Submission to Jurisdiction; Waiver of Jury
Trial. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York without giving effect to the principles of
conflicts of law thereof.
The parties hereto hereby submit to the jurisdiction of the United
States District Court for the Southern District of New York and any court in the
State of New York located in the City and County of New York, and appellate
court from any thereof, in any action, suit or proceeding brought against it or
in connection with this Agreement or any of the related documents or the
transactions contemplated hereunder or for recognition or enforcement of any
judgment, and the parties hereto hereby agree that all claims in respect of any
such action or proceeding may be heard or determined in New York State court or,
to the extent permitted by law, in such federal court.
The parties hereto hereby irrevocably waive, to the fullest extent
permitted by law, any and all rights to trial by jury in any legal proceeding
arising out of or relating to this Agreement or the transactions contemplated
hereby.
SECTION 19. Counterparts. This Agreement may be executed in
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
SECTION 20. Headings. The headings herein are inserted for convenience
of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
SECTION 21. GCFP Obligations. Greenwich Capital Financial Products,
Inc. ("GCFP") agrees with the Underwriters, for the sole and exclusive benefit
of the Underwriters, to indemnify and hold harmless the Underwriters and each
person who controls the Underwriters against any failure by the Depositor to
perform any of its obligations under this Agreement. GCFP agrees that there are
no conditions precedent to the obligations of GCFP hereunder other than written
demand to the Depositor to perform its obligations under this Agreement.
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:
----------------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED, as of the date first above written:
GREENWICH CAPITAL MARKETS, INC.
By:
---------------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED for purposes of Section 21, as of the date first above
written:
GREENWICH CAPITAL FINANCIAL
PRODUCTS, INC.
By:
---------------------------------------
Name:
Title:
SCHEDULE A
Underwritten Notes
Underwriters Principal Amount
------------------------------- -------------------
Greenwich Capital Markets, Inc.
[Class IA-1 $ [__________]
Class IIA-1a $ [__________]
Class IIA-1b $ [__________]
Class IIA-1c $ [__________]
Class IIA-2c $ [__________]
Class IIA-3c $ [__________]
Class IIA-4c $ [__________]
Class M-1 $ [__________]
Class M-2 $ [__________]
Class M-3 $ [__________]
Class M-4 $ [__________]
Class M-5 $ [__________]
Class M-6 $ [__________]
Class M-7 $ [__________]
Class M-8 $ [__________]
Class M-9] $ [__________]
EXHIBIT A
FOOTNOTE 271 INFORMATION
[Excerpt from Offering Reform adopting release-bold headings added for
convenience of reference]
In the case of asset-backed issuers certain information comprehended within the
definition of ABS informational and computational material is analogous to the
term of securities and is therefore issuer information. For example, we would
expect that the following categories of such material, which are derived from
the definition of ABS informational and computational materials, are generally
issuer information:
(1) Structural information-factual information regarding the
asset-backed securities being offered and the structure and basic parameters of
the securities, such as the number of classes, seniority, payment priorities,
terms of payment, the tax, ERISA or other legal conclusions of counsel, and
descriptive information relating to each class (e.g., principal amount, coupon,
minimum denomination, price or anticipated price, yield, weighted average life,
credit enhancements, anticipated ratings, and other similar information relating
to the proposed structure of the offering);
(2) Collateral information-factual information regarding the pool
assets underlying the asset-backed securities, including origination,
acquisition and pool selection criteria, information regarding any prefunding or
revolving period applicable to the offering, information regarding significant
obligors, data regarding the contractual and related characteristics of the
underlying pool assets (e.g., weighted average coupon, weighted average
maturity, delinquency and loss information and geographic distribution) and
other factual information concerning the parameters of the asset pool
appropriate to the nature of the underlying assets, such as the type of assets
comprising the pool and the programs under which the loans were originated;
(3) Key parties information-identification of key parties to the
transaction, such as servicers, trustees, depositors, sponsors, originators and
providers of credit enhancement or other support, including information about
any such party;
(4) Static pool data-static pool data, as referenced in Item 1105 of
Regulation AB [17 CFR 229.1105], such as for the sponsor's and/or servicer's
portfolio, prior transactions or the asset pool itself; and
(5) Issuer computational material-to the extent that the information is
provided by the issuer, depositor, affiliated depositor, or sponsor, statistical
information displaying for a particular class of asset-backed securities the
yield, average life, expected maturity, interest rate sensitivity, cash flow
characteristics, total rate of return, option adjusted spread or other financial
or statistical information related to the class or classes under specified
prepayment, interest rate, loss or other hypothetical scenarios. (Where such
information is prepared by an underwriter or dealer, it is not issuer
information, even when derived from issuer information.)
EXHIBIT B
Underwriter's Information
METHOD OF DISTRIBUTION
Subject to the terms and conditions set forth in the underwriting
agreement, dated September 26, 2005 (the "Underwriting Agreement"), between the
Underwriter and the Depositor, the Depositor has agreed to sell to the
Underwriter, and the Underwriter has agreed to purchase from the Depositor, the
Offered Notes.
Payment of the Offered Notes will be made from time to time in
negotiated transactions or otherwise at varying prices to be determined at the
time of sale. Proceeds to the Depositor from the sale of the Offered Notes,
before deducting expenses payable by the Depositor and underwriting fees, will
be approximately $1,213,476,000. The Underwriter's commission will be any
positive difference between the price it pays to the Depositor for the Offered
Notes and the amount it receives from the sale of the Offered Notes to the
public. In connection with the purchase and sale of the Offered Notes, the
Underwriter may be deemed to have received compensation from the Depositor in
the form of underwriting discounts.
The Depositor has been advised by the Underwriter that it proposes
initially to offer the Offered Notes of each class to the public in Europe and
the United States.
Until the payment of the Offered Notes 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 Notes. As an exception to these rules, the
Underwriter is permitted to engage in certain transactions that stabilize the
price of the Offered Notes. Such transactions consist of bids or purchases for
the purpose of pegging, fixing or maintaining the price of the Offered Notes.
In general, purchases of a security for the purpose of stabilization or
to reduce a short position could cause the price of the security to be higher
than it might be in the absence of such purchases.
Neither the Depositor nor the 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 Notes. In addition,
neither the Depositor nor the Underwriter makes any representation that the
Underwriter will engage in such transactions or that such transactions, once
commenced, will not be discontinued without notice.
The Depositor has been advised by the Underwriter that it intends to
make a market in the Offered Notes but the Underwriter has no obligation to do
so. There can be no assurance that a secondary market for the Offered Notes will
develop or, if it does develop, that it will continue.
The Depositor has agreed to indemnify the Underwriter against, or make
contributions to the Underwriter with respect to, certain liabilities, including
liabilities under the Act.
LEGAL MATTERS
Certain legal matters with respect to the Offered Notes will be passed upon for
the Depositor and the Underwriters by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, New York, New
York.
