FINANCIAL ASSET SECURITIES CORP. Soundview Home Loan Trust 2007-OPT5 Asset- Backed Certificates, Series 2007-OPT5 UNDERWRITING AGREEMENT
FINANCIAL
ASSET SECURITIES CORP.
Asset-Backed
Certificates, Series 2007-OPT5
October
11, 2007
|
Greenwich
Capital Markets, Inc.
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Ladies
and Gentlemen:
Financial
Asset Securities Corp., a Delaware corporation (the “Company”), proposes
to sell, and Greenwich Capital Markets, Inc. (“GCM”) (the
“Underwriter”) proposes to purchase, the aggregate principal amount (or
notional amount, as applicable) of the Soundview Home Loan Trust 2007-OPT5,
Asset-Backed Certificates, Class I-A-1, Class II-A-1, Class II-A-2, Class
II-A-3, Class X-1, Class X-2 and Class X-3 Certificates (the “Offered
Certificates”) set forth opposite its name on Schedule I
hereto. Only the Offered Certificates are being purchased by the
Underwriter hereunder. The Offered Certificates, together with the
Class M-1, Class M-1B, Class M-2, Class M-2B, Class M-3, Class M-4, Class M-5,
Class M-6, Class M-7, Class M-8, Class M-9, Class C, Class P, Class R and Class
R-X Certificates (collectively, the “Certificates”), will be issued by
the Company pursuant to a Pooling and Servicing Agreement (the “Pooling
Agreement”), dated as of October 1, 2007, among the Company, as depositor
(the “Depositor”), Option One Mortgage Corporation, as servicer (the
“Servicer”), and ▇▇▇▇▇ Fargo Bank, N.A., as trustee (the
“Trustee”). Each Certificate will evidence the holder’s
beneficial ownership in a trust fund (the “Trust Fund”), created pursuant
to the Pooling Agreement, and consisting primarily of fixed rate and adjustable
rate, residential mortgage loans (the “Mortgage Loans”) secured by first
liens and second liens on Residential Dwellings. The Offered
Certificates are described more fully in Schedule I hereto and in the Prospectus
Supplement furnished to the Underwriter by the Company and referred to
below.
Capitalized
terms used but not otherwise defined herein shall have the respective meanings
assigned to them in the Pooling Agreement.
1. Representations
and Warranties. The Company represents and warrants to, and
agrees with, the Underwriter that, as of the date hereof and as of the Closing
Date:
(a) The
Company has filed with the Securities and Exchange Commission (the
“Commission”) a registration statement on Form S-3 (the file number of
which is set forth in Schedule I hereto) for the registration of securities,
issuable in series under the Securities Act of 1933, as amended (the “1933
Act”), which registration statement was declared effective on the date set
forth in Schedule I hereto and copies of which have heretofore been delivered
to
the Underwriter. The Company meets the requirements for use of Form
S-3 under the 1933 Act, and such registration statement, as amended at the
date
hereof, meets the requirements set forth in Rule 415(a)(1)(x) under the 1933
Act
and complies in all other material respects with the 1933 Act and the rules
and
regulations thereunder. The Company proposes to file with the
Commission, with the Underwriter’s consent, pursuant to Rule 424 under the 1933
Act, a supplement to the form of prospectus included in such registration
statement relating to the Offered Certificates and the plan of distribution
thereof, and has previously advised the Underwriter of all further information
(financial and other) with respect to the Offered Certificates and the Mortgage
Loans to be set forth therein. Such registration statement, as of its
effective date, and each amendment thereto to the date of this Agreement, as
of
its effective date, including all exhibits thereto, is hereinafter called the
“Registration Statement.” The Company proposes to prepare and
file with the Commission pursuant to Rule 424 under the 1933 Act a final
prospectus dated July 30, 2007 (the “Base Prospectus”) and a final
prospectus supplement dated October 11, 2007 relating to the Offered
Certificates (the “Prospectus Supplement”). The Company also
proposes to prepare and file with the Commission pursuant to Rule 433 of the
1933 Act a free writing prospectus, dated October 11, 2007, relating
to the Offered Certificates (the “Pricing Free Writing
Prospectus”). The Base Prospectus and the Prospectus Supplement
relating to the Offered Certificates in the form to be filed with the Commission
pursuant to Rule 424 are hereinafter together called the “Final
Prospectus.” Each of the Pricing Free Writing Prospectus and the
Final Prospectus is referred to herein as a “Prospectus.”
(b) As
of the
date hereof, as of the date on which the Pricing Free Writing Prospectus is
first filed pursuant to Rule 433 under the 1933 Act, as of the date on which
the
Final Prospectus is first filed pursuant to Rule 424 under the 1933 Act, as
of
the date on which, prior to the Closing Date (as hereinafter defined), any
amendment to the Registration Statement becomes effective, as of the date on
which any supplement to the Final Prospectus is filed with the Commission,
and
at the Closing Date, (i) the Registration Statement, as amended as of any such
time, the Free Writing Prospectus, as amended or supplemented as of any such
time, and the Final Prospectus, as amended or supplemented as of any such time,
comply and will comply as to form in all material respects with the applicable
requirements of the 1933 Act and the rules and regulations thereunder, (ii)
the
Registration Statement, as of the applicable effective date as to each part
of
the Registration Statement, did not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, (iii) the Free Writing
Prospectus, as of its date, did not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provided that no representation or warranty is made as to
(a) information omitted from the Free Writing Prospectus but included in the
Final Prospectus or (b) information contained in or omitted from the
Registration Statement or the Final Prospectus in reliance upon and in
conformity with information furnished to the Company in writing by the
Underwriter through the Representative expressly for use therein, as specified
on Exhibit C hereto (the “Underwriter’s Information”) and (iv) the Final
Prospectus, as of its date, and as amended or supplemented as of the Closing
Date, does not and will not contain any untrue statement of a material fact
or
omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no
representations or warranties as to statements contained in or omitted from
the
Registration Statement or the Final Prospectus or any amendment or supplement
thereto made in reliance upon and in conformity with the Underwriter’s
Information. It is understood and acknowledged that the only
information furnished to the Company in writing by the Underwriter is the
Underwriter’s Information (as defined in Section 7(b) herein).
(c) The
Company has been duly incorporated and is validly existing as a corporation
in
good standing under the laws of the State of Delaware, has full power and
authority (corporate and other) necessary to own or hold its properties and
to
conduct its business as now conducted by it and to enter into and perform its
obligations under this Agreement, the Pooling Agreement and the Assignment
and
Recognition Agreement, dated October 30, 2007 among Greenwich Capital Financial
Products, Inc., the Depositor and Option One Mortgage Corporation. (the
“Originator”) (the “Assignment and Recognition Agreement”).
(d) As
of the
date hereof, as of the date on which the Pricing Free Writing Prospectus is
first filed pursuant to Rule 433 under the 1933 Act, as of the date on which
the
Final Prospectus is first filed pursuant to Rule 424 under the 1933 Act, as
of
the date on which, prior to the Closing Date, any amendment to the Registration
Statement becomes effective, as of the date on which any supplement to the
Final
Prospectus is filed with the Commission, and as of the Closing Date, there
has
not been and will not have been (i) any request by the Commission for any
further amendment to the Registration Statement or the Final Prospectus or
for
any additional information, (ii) any issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
institution or threat of any proceeding for that purpose or (iii) any
notification with respect to the suspension of the qualification of the Offered
Certificates for sale in any jurisdiction or any initiation or threat of any
proceeding for such purpose.
(e) As
of the
date hereof, the Company is not an “ineligible issuer” as defined in Rule 405
under the 1933 Act.
(f) This
Agreement has been duly authorized, executed and delivered by the
Company.
(g) Each
of
the Pooling Agreement and the Assignment and Recognition Agreement
(collectively, the “Other Agreements”), when executed and delivered as
contemplated thereby, will have been duly authorized, executed and delivered
by
the Company; and each of the Other Agreements and this Agreement, when so
executed and delivered, will constitute a legal, valid, binding and enforceable
agreement of the Company, subject, as to enforceability, to (i) bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors’ rights generally, (ii) general principles of equity regardless
of whether enforcement is sought in a proceeding in equity or at law, and (iii)
with respect to any rights of indemnity under the Assignment and Recognition
Agreement, limitations of public policy under applicable securities
laws.
(h) As
of the
Closing Date, the Offered Certificates will be duly and validly authorized
and,
when duly and validly executed, authenticated and delivered in accordance with
the Pooling Agreement and delivered to the Underwriter for the account of the
Underwriter against payment therefor as provided herein, will be duly and
validly issued and outstanding and entitled to the benefits of the Pooling
Agreement. The Offered Certificates will not be “mortgage related
securities,” as such term is defined in the singular in the Securities Exchange
Act of 1934, as amended (the “1934 Act”) and as such term is defined in
the singular in the Secondary Mortgage Market Enhancement Act of 1984
(“SMMEA”).
(i) As
of the
Cut-off Date, each of the Mortgage Loans will meet the criteria for selection
to
be described in the Pricing Free Writing Prospectus and the Final Prospectus
and
will conform to the descriptions thereof contained in the Pricing Free Writing
Prospectus and the Final Prospectus.
(j) The
Company is not in violation of its certificate of incorporation or by-laws
or in
default under any agreement, indenture or instrument the effect of which
violation or default would be material to the Company. None of (i)
the issuance and sale of the Offered Certificates, (ii) the execution and
delivery by the Company of this Agreement and the Other Agreements, (iii) the
consummation by the Company of any of the transactions herein or therein
contemplated, and (iv) the compliance by the Company with the provisions hereof
or thereof, does or will conflict with or result in a breach of any term or
provision of the certificate of incorporation or by-laws of the Company or
conflict with, result in a breach, violation or acceleration of, or constitute
a
default under, the terms of any indenture or other agreement or instrument
to
which the Company is a party or by which it is bound, or any statute, order
or
regulation applicable to the Company of any court, regulatory body,
administrative agency or governmental body having jurisdiction over the
Company. The Company is not a party to, bound by or in breach or
violation of any indenture or other agreement or instrument, or subject to
or in
violation of any statute, order or regulation of any court, regulatory body,
administrative agency or governmental body having jurisdiction over it that
materially and adversely affects, or may in the future materially and adversely
affect, (i) the ability of the Company to perform its obligations under this
Agreement and the Other Agreements or (ii) the business, operations, financial
conditions, properties or assets of the Company.
(k) There
are
no actions or proceedings against, or investigations of, the Company pending
or,
to the knowledge of the Company, threatened, before any court, arbitrator,
administrative agency or other tribunal (i) asserting the invalidity of this
Agreement, the Other Agreements or the Certificates, (ii) seeking to prevent
the
issuance of the Certificates or the consummation of any of the transactions
contemplated by this Agreement and the Other Agreements, (iii) that are
reasonably likely to be adversely determined and that might materially and
adversely affect the performance by the Company of its obligations under, or
the
validity or enforceability of, this Agreement, the Other Agreements or the
Certificates or (iv) seeking to affect adversely the federal income tax
attributes of the Certificates as described in the Final
Prospectus.
(l) Any
taxes, fees and other governmental charges in connection with the execution
and
delivery of this Agreement and the Other Agreements or the execution, delivery
and sale of the Certificates have been or will be paid on or prior to the
Closing Date.
(m) Immediately
prior to the assignment of the Mortgage Loans to the Trustee as contemplated
by
the Pooling Agreement, the Company (i) had good title to, and was the sole
owner
of, each Mortgage Loan free and clear of any pledge, mortgage, lien, security
interest or other encumbrance (collectively, “Liens”), (ii) had not
assigned to any Person any of its right, title or interest in and to such
Mortgage Loans or in the Pooling Agreement and (iii) will have the power and
authority to sell such Mortgage Loans to the Trustee, and upon the execution
and
delivery of the Pooling Agreement by the Trustee, the Trustee will have acquired
all of the Company’s right, title and interest in and to the Mortgage
Loans.
(n) Neither
the Company nor the Trust Fund is, and neither the issuance and sale of the
Certificates nor the activities of the Trust Fund pursuant to the Pooling
Agreement will cause the Company or the Trust Fund to be, an “investment
company” or under the control of an “investment company” as such terms are
defined in the Investment Company Act of 1940, as amended (the “Investment
Company Act”).
(o) At
the
Closing Date, the Offered Certificates will conform in all material respects
to
the descriptions thereof contained in the Pricing Free Writing Prospectus and
the Final Prospectus.
2. Purchase
and Sale. Subject to the terms and conditions and in reliance
upon the representations and warranties set forth herein, the Company agrees
to
sell the Offered Certificates to the Underwriter, and the Underwriter agrees
(except as set forth in Section 8 hereof) to purchase, from the Company, the
aggregate principal amount (or notional amount, as applicable) of the Offered
Certificates set forth opposite its name in Schedule I hereto at the respective
purchase prices set forth therein (plus accrued interest, if
applicable).
3. Delivery
and Payment. Delivery of and payment for the Offered Certificates
shall be made at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Wood llp, Two World
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ at 10:00 a.m., Eastern Standard
Time,
on the date specified in Schedule I hereto (or such later date not later than
seven business days after such specified date as the Underwriter shall
designate), which date and time may be changed by agreement between the
Underwriter and the Company or as provided herein (such date and time of
delivery and payment for the Offered Certificates being herein called the
“Closing Date”). Delivery of the Offered Certificates shall be
made to the Underwriter, against payment by the Underwriter of the purchase
price therefor in immediately available funds wired to such bank as may be
designated by the Company, or such other manner of payment as may be agreed
upon
by the Company and the Underwriter. The Offered Certificates to be so
delivered shall be in book entry form, in each case, unless otherwise agreed,
in
such denominations and registered in such names as the Underwriter may have
requested in writing not less than two full business days in advance of the
Closing Date.
The
Company agrees to have the Offered Certificates available for inspection,
checking and packaging by the Underwriter in the Borough of Manhattan in The
City of New York, not later than 10:00 a.m. on the business day prior to the
Closing Date.
4. Offering
of the Offered Certificates. It is understood that, subject to
the terms and conditions hereof, the Underwriter proposes to offer
the Offered Certificates for sale to the public as set forth in the Final
Prospectus.
5. Covenants
of the Company. The Company covenants and agrees with the
Underwriter that:
(a) The
Company will prepare the Pricing Free Writing Prospectus and the Final
Prospectus setting forth the amount of Offered Certificates covered thereby
and
the terms thereof not otherwise specified in the Base Prospectus, the expected
proceeds to the Company from the sale of such Offered Certificates, and such
other information as the Underwriter and the Company may deem appropriate in
connection with the offering of such Offered Certificates. The
Company promptly will advise the Underwriter or the Underwriter’s counsel (i)
when the Pricing Free Writing Prospectus or the Final Prospectus shall have
been
filed or transmitted to the Commission for filing pursuant to Rule 433 or Rule
424, as applicable, (ii) when any amendment to the Registration Statement shall
have become effective or any further supplement to the Prospectus shall have
been filed with the Commission, (iii) of any proposal or request to amend or
supplement the Registration Statement, the Base Prospectus, the Pricing Free
Writing Prospectus or the Final Prospectus or any request by the Commission
for
any additional information, (iv) when notice is received from the Commission
that any post-effective amendment to the Registration Statement has become
or
will become effective, (v) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or post-effective
amendment thereto or the institution or threatening of any proceeding for that
purpose, (vi) of the receipt by the Company of any notification with respect
to
the suspension of the qualification of the Offered Certificates for sale in
any
jurisdiction or the institution or threatening of any proceeding for that
purpose and (vii) of the occurrence of any event that would cause the
Registration Statement, as then in effect, to contain an untrue statement of
a
material fact or omit to state a material fact required to be stated therein
or
necessary in order to make the statements therein not misleading, or that would
cause the Pricing Free Writing Prospectus or the Final Prospectus, as then
in
effect, to contain an untrue statement of a material fact or omit to state
a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
The
Company will use its best efforts to prevent the issuance of any such stop
order
or suspension and, if issued, to obtain as soon as possible the withdrawal
thereof. The Company will cause the Pricing Free Writing Prospectus
and the Final Prospectus to be transmitted to the Commission for filing pursuant
to Rule 433 and Rule 424 under the 1933 Act, as applicable or will cause the
Pricing Free Writing Prospectus and the Final Prospectus to be filed with the
Commission pursuant to said Rule 433 and Rule 424, as applicable.
(b) If,
at
any time when a prospectus relating to the Offered Certificates is required
to
be delivered under the 1933 Act, any event occurs as a result of which the
Final
Prospectus, as then amended or supplemented, would contain any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or if it shall be
necessary in the judgment of the Company or the Underwriter to amend or
supplement the Final Prospectus or the Registration Statement to comply with
the
1933 Act or the rules and regulations thereunder, the Company promptly will
prepare and file with the Commission, at the expense of the Company, subject
to
paragraph (a) of this Section 5, an amendment or supplement that will correct
such statement or omission or an amendment that will effect such compliance
and,
if such amendment or supplement is required to be contained in a post-effective
amendment to the Registration Statement, the Company will use its best efforts
to cause such amendment to the Registration Statement to be made effective
as
soon as possible. Neither the Underwriter’s consent to nor their
distribution of any amendment or supplement shall constitute a waiver of any
of
the conditions set forth in Section 6.
(c) The
Company will furnish to the Underwriter and the Underwriter’s counsel, without
charge, signed copies of the Registration Statement (including exhibits thereto)
and each amendment thereto which shall become effective on or prior to the
Closing Date, and so long as delivery of a prospectus by the Underwriter may
be
required by the 1933 Act, as many copies of the Final Prospectus and any
amendments and supplements thereto as the Underwriter may reasonably
request.
(d) [Reserved].
(e) The
Company will furnish such information, execute such instruments and take such
action, if any, as may be required to qualify the Offered Certificates for
sale
under the laws of such jurisdictions as the Underwriter may designate and will
maintain such qualifications in effect so long as required for the distribution
of the Offered Certificates; provided, however, that the Company shall
not be required to qualify to do business in any jurisdiction where it is not
now qualified or to take any action that would subject it to general or
unlimited service of process in any jurisdiction where it is not now subject
to
such service of process.
(f) The
Company will pay or cause to be paid all costs and expenses in connection with
the transactions herein contemplated, including, but not limited to, the fees
and disbursements of its counsel; the costs and expenses of printing (or
otherwise reproducing) and delivering the Pooling Agreement and the
Certificates; the fees, costs and expenses of the Trustee (to the extent
permitted under the Pooling Agreement, and except to the extent that another
party is obligated to pay such amounts thereunder); the fees and disbursements
of accountants for the Company; the costs and expenses in connection with the
qualification or exemption of the Offered Certificates under state securities
or
“blue sky” laws, including filing fees and reasonable fees and disbursements of
counsel in connection therewith, in connection with the preparation of any
blue
sky survey and in connection with any determination of the eligibility of the
Offered Certificates for investment by institutional investors and the
preparation of any legal investment survey; the expenses of printing any such
blue sky survey and legal investment survey; the cost and expenses in connection
with the preparation, printing and filing of the Registration Statement
(including exhibits thereto), the Base Prospectus, the Pricing Free Writing
Prospectus and the Final Prospectus, the preparation and production of this
Agreement and the delivery to the Underwriter of such copies of the Pricing
Free
Writing Prospectus and the Final Prospectus as the Underwriter may reasonably
request; and the fees of the Rating Agencies (as defined in Section 6
hereof).
(g) The
Company will enter into the Other Agreements on or prior to the Closing
Date.
(h) The
Company will file with the Commission within fifteen days after the issuance
of
the Offered Certificates a current report on Form 8-K setting forth specific
information concerning the Offered Certificates and the Mortgage Loans to the
extent that such information is not set forth in the Prospectus. The
Company will also file with the Commission any Free Writing Prospectus (as
defined herein) delivered to investors in accordance with Sections 6 and 7
(below) as the Company is required under the rules and regulations thereunder
to
file, and to do so within the applicable period of time prescribed by the rules
and regulations.
(i) The
Company acknowledges and agrees that the Underwriter is acting solely in the
capacity of an arm’s length contractual counterparty to the Company with respect
to the offering of Securities contemplated hereby (including in connection
with
determining the terms of the offering) and not as a financial advisor or a
fiduciary to, or an agent of, the Company or any other person. In
addition, neither the Representative nor any other Underwriter is advising
the
Company or any other person as to any legal, tax,
investment, accounting or regulatory matters in any
jurisdiction. The Company shall consult with its own advisors
concerning such matters, and the Underwriter shall have no responsibility or
liability to the Company with respect thereto. The Company has been
advised that the Underwriter and its affiliates are engaged in a broad range
of
transactions that may involve interests that differ from those of the Company
and that the Underwriter has no obligation to disclose such interests and
transactions to the Company by virtue of any fiduciary, advisory or agency
relationship. Any review by the Underwriter of the Company, the
transactions contemplated hereby or other matters relating to such transactions
will be performed solely for the benefit of the Underwriter and shall not be
on
behalf of the Company.
(j) The
Company will, to the extent that the Underwriter has complied with the terms
of
Section 5 (below), file with the Commission any Free Writing Prospectus (as
defined herein) delivered to investors in accordance with Sections 6 and 7
(below), as the Company is required under the rules and regulations to file,
and
do so within the applicable period of time prescribed by the rules and
regulations.
6. Covenants
of the Underwriter. The Underwriter covenants and agrees with the
Company that:
(a) It
has
not provided and will not provide to any potential investor any information
that
would constitute “issuer information” within the meaning of Rule 433(h) under
the Securities Act other than information contained in the Preliminary Term
Sheet (as defined herein).
(b) In
disseminating information to prospective investors, it has complied and will
continue to comply fully with the rules and regulations, including, but not
limited to Rules 164 and 433 under the Securities Act and the requirements
thereunder for filing and retention of free writing prospectuses.
(c) It
has
not disseminated and will not disseminate any information relating to the
Offered Certificates in reliance on Rule 167 or 426 under the Securities
Act.
(d) It
has
not disseminated and will not disseminate any information relating to the
Offered Certificates in a manner reasonably designed to lead to its broad
unrestricted dissemination within the meaning of Rule 433(d) under the
Securities Act.
(e) Each
Free
Writing Prospectus disseminated by such Underwriter bore or will bear the
applicable legends required under this Agreement, and no Free Writing Prospectus
disseminated by such Underwriter bore or will bear any legend prohibited under
this Agreement.
(f) Prior
to
entering into any Contract of Sale, the Underwriter shall convey the Pricing
Free Writing Prospectus to each prospective investor. The Underwriter
shall maintain sufficient records to document its conveyance of the Pricing
Free
Writing Prospectus to each potential investor prior to the formation of the
related Contract of Sale and shall maintain such records as required by the
rules and regulations.
(g) On
or
before the Closing Date, the Underwriter shall execute and deliver to ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ & ▇▇▇▇ llp a copy of the original issue discount pricing letter
provided to the Representative by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Wood llp.
(h) In
relation to each member state of the European Economic Area which has
implemented the Prospectus Directive (each, a “Relevant Member State”), each
Underwriter represents and agrees that with effect from and including the date
on which the Prospectus Directive is implemented in that Relevant Member State
(the “Relevant Implementation Date”), they have not made and will not make an
offer of Underwritten Certificates to the public in that Relevant Member State
prior to the publication of a prospectus in relation to the Underwritten
Certificates which has been approved by the competent authority in that Relevant
Member State or, where appropriate, approved in another Relevant Member State
and notified to the competent authority in that Relevant Member State, all
in
accordance with the Prospectus Directive, except that it may, with effect from
and including the Relevant Implementation Date, make an offer of Underwritten
Certificates to the public in that Relevant Member State at any
time:
(i) to
legal
entities which are authorized or regulated to operate in the financial markets
or, if not so authorized or regulated, whose corporate purpose is solely to
invest in securities;
(ii) to
any
legal entity which has two or more of (x) an average of at least 250 employees
during the last financial year; (y) a total balance sheet of more than
€43,000,000 and (z) an annual net turnover of more than €50,000,000, as shown in
its last annual or consolidated accounts; or
(iii) in
any
other circumstances which do not require the publication by the issuer of a
prospectus pursuant to Article 3 of the Prospectus Directive.
For
the
purposes of this Section, the expression an “offer of Underwritten Certificates
to the public” in relation to any certificates in any Relevant Member State
means the communication in any form and by any means of sufficient information
on the terms of the offer and the Underwritten Certificates to be offered so
as
to enable an investor to decide to purchase or subscribe for the offered
certificates, as the same may be varied in that member state by any measure
implementing the Prospectus Directive in that member state and the expression
“Prospectus Directive” means Directive 2003/71/EC and includes any relevant
implementing measure in each Relevant Member State.
(i) Each
confirmation of sale with respect to Offered Certificates delivered by an
Underwriter shall, if such confirmation of sale is not preceded or accompanied
by delivery of the Final Prospectus, include a legend to the following effect
in
compliance with Rule 173:
Rule
173
notice: This security was sold pursuant to an effective registration
statement that is on file with the SEC. You may request a copy of the
final prospectus at ▇▇▇.▇▇▇.▇▇▇, or by calling (▇▇▇) ▇▇▇-▇▇▇▇.
7. Offering
Procedures. (a) The following terms have the specified meanings
for purposes of this Agreement:
(i) “Contract
of Sale” has the same meaning as the term “contract of sale” as used in Rule 159
under the Securities Act.
(ii) “Derived
Information” means any information regarding the Offered Certificates, other
than the Issuer Information, disseminated by any Underwriter to a potential
investor.
(iii) “Free
Writing Prospectus” means the Preliminary Term Sheet, the Pricing Free Writing
Prospectus and any other information relating to the Offered Certificates
disseminated by the Depositor or any Underwriter that constitutes a “free
writing prospectus” within the meaning of Rule 405 under the Securities
Act.
(iv) “Issuer
Information” means the information contained in the Preliminary Term
Sheet.
(v) “Preliminary
Term Sheet” means the preliminary term sheet dated October 4, 2007 attached
hereto as Exhibit A.
(b) Neither
the Company nor the Underwriter will disseminate to any potential investor
any
information relating to the Offered Certificates that constitutes a “written
communication” within the meaning of Rule 405 under the Securities Act, other
than the Preliminary Term Sheet, a Prospectus and, in the case of the
Underwriter, Derived Information, unless (i) if the Underwriter seeks to
disseminate such information, such Underwriter or the Representative has
obtained the prior consent of the Company, or (ii) if the Company seeks to
disseminate such information, the Company has obtained the prior consent of
the
Representative.
The
Underwriter may convey Derived Information (x) to a potential investor prior
to
entering into a Contract of Sale with such investor; provided, however, that
such Derived Information shall not be “broadly disseminated” and (y) to an
investor after a Contract of Sale provided that the Underwriter has complied
with Section 6(f) in connection with such Contract of Sale. The
Underwriter shall maintain records of any conveyance of Derived Information
to
potential or actual investors and shall maintain such records as required by
the
Regulations.
Neither
the Company nor the Underwriter
shall disseminate or file with the Commission any information relating to the
Offered Certificates in reliance on Rule 167 or 426 under the Securities Act,
nor shall the Company or the Underwriter disseminate any Free Writing Prospectus
in a manner reasonably designed to lead to its broad unrestricted dissemination
within the meaning of Rule 433(d) under the Securities Act.
(c) Each
Free Writing Prospectus shall bear
the applicable legends specified in Exhibit B.
8. Conditions
to the Purchase of the Offered Certificates. The obligations of
the Underwriter hereunder to purchase the Offered Certificates shall
be subject to the accuracy of the representations and warranties on the part
of
the Company contained herein as of the date hereof, as of the date of the
effectiveness of any amendment to the Registration Statement filed prior to
the
Closing Date and as of the Closing Date, to the accuracy of the statements
of
the Company made in any certificates delivered pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder and
to
the following additional conditions:
(a) The
Registration Statement shall have become effective and no stop order suspending
the effectiveness of the Registration Statement, as amended from time to time,
shall have been issued and not withdrawn and no proceedings for that purpose
shall have been instituted or threatened; the Pricing Free Writing Prospectus
shall have been filed or transmitted for filing with the Commission in
accordance with Rule 433 under the 1933 Act and the Final Prospectus shall
have
been filed or transmitted for filing with the Commission in accordance with
Rule
424 under the ▇▇▇▇ ▇▇▇.
(b) The
Company shall have delivered to the Underwriter a certificate of the Company,
signed by the President or a vice president of the Company and dated the Closing
Date, to the effect that the signer of such certificate has carefully examined
the Registration Statement, the Final Prospectus and this Agreement and
that: (i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects at and as of the Closing
Date with the same effect as if made on the Closing Date, (ii) the Company
has
complied with all the agreements and satisfied all the conditions on its part
to
be performed or satisfied at or prior to the Closing Date, (iii) no stop order
suspending the effectiveness of the Registration Statement has been issued
and
no proceedings for that purpose have been instituted or, to the Company’s
knowledge, threatened, and (iv) nothing has come to the attention of the signer
hereof on behalf of the Company that would lead said signer to believe that
the
Final Prospectus contains any untrue statement of a material fact or omits
to
state any material fact necessary in order to make the statements therein,
in
the light of the circumstances under which they were made, not
misleading.
(c) The
Representative shall have received, in form and substance reasonably
satisfactory to the Representative and counsel for the Underwriter, a negative
assurance letter of Underwriter’s Counsel, with respect to each
Prospectus.
(d) The
Representative shall have received, in form and substance reasonably
satisfactory to the Representative and counsel for the Underwriter, a negative
assurance letter of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ llp, counsel to the Company,
with respect to each Prospectus.
(e) The
Underwriter shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Wood llp and counsel
for the Company, one or more favorable opinions, dated the Closing Date, in
form
and substance satisfactory to the Underwriter.
(f) The
Underwriter shall have received from the in-house counsel to the Company or
an
affiliate of the Company, a favorable opinion, dated the Closing Date in form
and substance satisfactory to the Underwriter.
(g) [Reserved];
(h) The
Underwriter shall have received from in-house counsel to the Seller, one or
more
favorable opinions, dated the Closing Date, in form and substance satisfactory
to the Underwriter.
(i) The
Representative shall have received, in form and substance reasonably
satisfactory to the Representative and counsel for the Underwriter, letters
prepared by Deloitte & Touche LLP, certified public accountants, (a)
regarding certain numerical information contained or incorporated by reference
in the Term Sheet, the Pricing Free Writing Prospectus, the Final Prospectus
and
(b) relating to certain agreed upon procedures as requested by the Underwriter
relating to the Mortgage Loans, and letters prepared by KMPG LLP, certified
public accountants regarding certain numerical information contained or
incorporated by reference in the Servicer Information in the Pricing Free
Writing Prospectus and the Final Prospectus.
(j) The
Underwriter shall have received from each of Standard & Poor’s Ratings
Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”),
▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”) and Dominion Bond Rating
Service (“DBRS”, together with S&P and Moody’s, the “Rating
Agencies”) a rating letter assigning to the Offered Certificates the ratings
indicated on Schedule I hereto, none of which ratings shall have been
withdrawn.
(k) The
Underwriter shall have received from counsel for the Trustee a favorable
opinion, dated the Closing Date, in form and substance satisfactory to the
Underwriter and the Underwriter’s counsel, to the effect that the Pooling
Agreement has been duly authorized, executed and delivered by the Trustee and
constitutes the legal, valid, binding and enforceable agreement of the Trustee,
subject, as to enforceability, to bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors’ rights in general and by
general principles of equity regardless of whether enforcement is considered
in
a proceeding in equity or at law, and as to such other matters as may be agreed
upon by the Underwriter and the Trustee.
(l) The
Interest Rate Swap Agreement, the Interest Rate Cap Agreement and the Basis
Risk
Cap Agreement shall have been delivered.
(m) The
Underwriter shall have received such further information, certificates,
documents and opinions as it may reasonably have requested not less than three
business days prior to the Closing Date.
(n) All
proceedings in connection with the transactions contemplated by this Agreement
and all documents incident hereto shall be satisfactory in form and substance
to
the Underwriter and the Underwriter’s counsel, and the Underwriter and such
counsel shall have received such information, certificates and documents as
it
or they may have reasonably requested.
(o) If
any of
the conditions specified in this Section 8 shall not have been fulfilled in
all
material respects when and as provided in this Agreement, if the Company is
in
breach of any covenants or agreements contained herein or if any of the opinions
and certificates referred to above or elsewhere in this Agreement shall not
be
in all material respects reasonably satisfactory in form and substance to the
Underwriter and the Underwriter’s counsel, this Agreement and all the
obligations of the Underwriter hereunder may be canceled by the Underwriter
at,
or at any time prior to, the Closing Date. Notice of such
cancellation shall be given to the Company in writing, or by telephone or
facsimile transmission confirmed in writing.
9. Indemnification
and Contribution. The Company agrees with the Underwriter
that:
(a) The
Company indemnifies and holds harmless the Underwriter, the Underwriter’s
officers, directors and partners, and each Person who controls the Underwriter
within the meaning of either the 1933 Act or the 1934 Act against any and all
losses, claims, damages or liabilities, joint or several, to which the
Underwriter may become subject under the 1933 Act, the 1934 Act, or other
federal or state law or regulation, at common law or otherwise, insofar as
such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out
of or are based upon (x) any untrue statement or alleged untrue statement of
a
material fact contained in the Registration Statement or in any amendment
thereof, or the omission or alleged omission to state in the Registration
Statement or any amendment thereof a material fact required to be stated therein
or necessary to make the statements therein not misleading, or (y) any untrue
statement or alleged untrue statement of a material fact contained in the Base
Prospectus, the Pricing Free Writing Prospectus or the Final Prospectus, or
the
omission or alleged omission to state in the Base Prospectus, the Pricing Free
Writing Prospectus, the Final Prospectus or in any amendment or supplement
to
any of them, or the Issuer Information, a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, and agrees to reimburse
for any legal or other expenses reasonably incurred by the Underwriter, the
Underwriter’s respective officers and directors and each such controlling person
in connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to
the
extent that any such loss, claim, expense, damage or liability arises out of
or
is based upon an untrue statement or omission, or alleged untrue statement
or
omission, made in any of such documents (x) under the heading “Yield, Prepayment
and Maturity Considerations—Weighted Average Lives,” the tables regarding
assumed mortgage loan characteristics and the tables entitled “Percent of
Original Certificate Principal Balance Outstanding” (collectively, the “Excluded
Information”); (y) in reliance upon and in conformity with any Underwriter’s
Information or (z) in any Derived Information in any Free Writing Prospectus,
except in the case of clause (x) or (z) to the extent that any untrue statement
or omission or alleged untrue statement or alleged omission therein results
(or
is alleged to have resulted) from an error or material omission in the
information in the Pricing Free Writing Prospectus or the Final Prospectus
for
which the Company is responsible or concerning the characteristics of the
Mortgage Loans furnished by the Seller or the Company, as applicable, to the
Underwriter for use in the preparation of any Excluded Information in any Free
Writing Prospectus (any such information, the “Pool Information”), which error
was not superseded or corrected by the delivery to the Underwriter of corrected
written or electronic information, or for which the Company did not provide
timely written notice of such error to the Underwriter (any such uncorrected
Pool information, a “Pool Error”); and, provided further that the Company
shall not be liable in any such case to the extent that any such loss, claim,
expense, damage or liability arises out of or is based upon an omission to
include in the Pricing Free Writing Prospectus information included in the
Final
Prospectus.
(b) The
Underwriter agrees to indemnify and hold harmless the Company, each of its
directors, each of its officers who signs the Registration Statement, and each
Person, if any, who controls the Company within the meaning of either the 1933
Act or the 1934 Act, to the same extent as the foregoing indemnity from the
Company to the Underwriter, but only if any such loss, claim, damage or
liability arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and
in
conformity with the Underwriter’s Information of the Underwriter except to the
extent that such misstatement or omission arises from a misstatement or omission
in the Company Provided Information. This indemnity will be in
addition to any liability that the Underwriter may otherwise
have. The Company and the Underwriter each acknowledge that (i) the
term Underwriter’s Information shall mean the last paragraph on the cover page
of the Prospectus Supplement and the first paragraph (including the table
following such paragraph) and the first sentence of the second paragraph under
the heading “Method of Distribution” in the Prospectus Supplement and (ii)
Underwriter’s Information constitutes the only information furnished in writing
by the Underwriter for inclusion in the documents referred to in the foregoing
indemnity, and the Underwriter confirms that its Underwriter’s Information is
correct.
(c) Promptly
after receipt by an indemnified party under this Section 9 of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 9,
notify the indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from any
liability that it may have to any indemnified party otherwise than under this
Section 9. In case any such action is brought against any indemnified
party and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume
the
defense thereof, with counsel satisfactory to such indemnified party;
provided, however, that if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party or parties shall have reasonably concluded that there may
be
legal defenses available to it or them and/or other indemnified parties that
are
different from or additional to those available to the indemnifying party or
there is a conflict or potential conflict between the indemnified party and
the
indemnifying party (in which case the indemnifying party will not have the
right
to direct the defense of such action on behalf of the indemnified party), the
indemnified party or parties shall have the right to elect separate counsel
to
assert such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt
of notice from the indemnifying party to such indemnified party of its election
so to assume the defense of such action and approval by the indemnified party
of
counsel, the indemnifying party will not be liable for any legal or other
expenses subsequently incurred by such indemnified party in connection with
the
defense thereof, unless (i) the indemnified party shall have employed separate
counsel in connection with the assertion of legal defenses in accordance with
the proviso to the immediately preceding sentence (it being understood, however,
that the indemnifying party shall not be liable for the expenses of more than
one separate counsel in addition to local counsel, approved by the Underwriter
in the case of paragraph (a) of this Section 9), (ii) the indemnifying party
shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
commencement of the action or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of the
indemnifying party; and except that, if clause (i) or (iii) is applicable,
such
liability shall only be in respect of the counsel referred to in such clause
(i)
or (iii). Each indemnified party, as a condition of the indemnity
agreements contained in Section 9(a) and (b), shall use its reasonable efforts
to cooperate with the indemnifying party in the defense of any such action
or
claim. No indemnifying party shall be liable for any settlement of
any such action effected without its written consent (which consent shall not
be
unreasonably withheld, conditioned or delayed) but if settled with
its written consent, or if there be a final judgment for the plaintiff in any
such action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability (to the extent set
forth in section 9(a) or (b) as applicable) by reason of such settlement or
judgment. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement (i) includes an unconditional release of such
indemnified party from all liability on any claims that are the subject of
such
action and (ii) does not include a statement as to, or an admission of, fault,
culpability or failure to act by or on behalf of an indemnified
party.
(d) If
the
indemnification provided for in this Section 9 is unavailable or insufficient
to
hold harmless an indemnified party under this Section 9, then each indemnifying
party shall contribute to the amount paid or payable by such indemnified party
as a result of the aggregate losses, claims, damages and liabilities referred
to
in paragraph (a) or (b) above, in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and the
Underwriter on the other from the offering of the Offered
Certificates. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law, then each indemnifying
party shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company on the one hand and the Underwriter
on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Underwriter shall be equal to its aggregate discount
and underwriting commissions with respect to the Offered Certificates purchased
by it as set forth on Schedule I hereto, and the relative benefits of the
Company shall be equal to the balance of the proceeds of the sale of the Offered
Certificates. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of material fact
or
the omission or alleged omission to state a material fact relates to information
supplied by the Company or the Underwriter and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriter agree that it
would not be just and equitable if contribution were determined by pro rata
allocation or by any other method of allocation which does not take account
of
the equitable considerations referred to above. The amount paid or
payable by an indemnified party as a result of the claims (or actions in respect
thereof) referred to above shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such claim. Notwithstanding the
provisions of this subsection (d), the Underwriter shall not be required to
contribute any amount in excess of the amount by which the total amount of
underwriting discounts and commissions received by the Underwriter with respect
to the related Offered Certificates (which amounts are set forth in Schedule
I
hereto) exceeds the amount of damages which the Underwriter would have otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 9, a Person, if any,
that controls the Underwriter within the meaning of either the 1933 Act or
the
1934 Act shall have the same rights to contribution as does the Underwriter
and
each director of the Underwriter and each officer of the Underwriter shall
have
the same rights to contribution as the Underwriter, and each Person, if any,
that controls the Company within the meaning of either the 1933 Act or the
1934
Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company. Any party entitled to contribution will,
promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution
may
be made against another party or parties under this paragraph (d), notify such
party or parties from whom contribution may be sought, but the omission to
so
notify such party or parties shall not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may have
hereunder or otherwise than under this paragraph (d).
10. Termination. (a) This
Agreement shall be subject to termination in the Underwriter’s
absolute discretion, by notice given to the Company prior to delivery of and
payment for the Offered Certificates, if, prior to such time, (i) trading of
securities generally on the New York Stock Exchange or the American Stock
Exchange or the over the counter market shall have been suspended or materially
limited, (ii) a general moratorium on commercial banking activities in New
York
shall have been declared by either federal or New York State authorities, (iii)
there shall have occurred any material outbreak or declaration of hostilities
or
other calamity or crisis the effect of which on the financial markets of the
United States is such as to make it, in either Underwriter’s reasonable
judgment, impracticable to market the Offered Certificates on the terms
specified herein or (iv) if any other closing condition set forth in Section
6
shall not have been fulfilled when required to be fulfilled.
(b) If
the
sale of the Offered Certificates shall not be consummated because any condition
to the obligations of the Underwriter set forth in Section 6 hereof is not
satisfied or because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or comply with any provision hereof
other than by reason of the default of such Underwriter, the Company shall
reimburse such Underwriter for the reasonable fees and expenses of such
Underwriter’s counsel and for such other out-of-pocket expenses as shall have
been incurred by such Underwriter in connection with this Agreement and the
proposed purchase of the Offered Certificates, and upon demand the Company
shall
pay the full amount thereof to such Underwriter.
(c) This
Agreement will survive delivery of and payment for the Offered
Certificates. The provisions of Section 7 and this Section 8(c) shall
survive the termination or cancellation of this Agreement and shall remain
in
full force and effect, regardless of any investigation made by or on behalf
of
the Underwriter or any persons controlling it.
11. [Reserved.]
12. Notices. All
communications hereunder will be in writing and effective only on receipt,
and,
if sent to GCM, will be mailed, delivered or transmitted by facsimile and
confirmed to Greenwich Capital Markets, Inc. at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention: Legal Department; if sent to the
Company, will be mailed, delivered or transmitted by facsimile and confirmed
to
it at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
attention: Legal Department.
13. No
Advisory or Fiduciary Responsibility. Each of the
Company and the Underwriter acknowledges and agrees that: (i) the purchase
and
sale of the Offered Certificates pursuant to this Agreement, including the
determination of the public offering price of the Offered Certificates and
any
related discounts and commissions, is an arm’s-length commercial transaction
between the Company and the Underwriter, on the one hand, and the Underwriter,
on the other hand, and the Company and the Underwriter are capable of evaluating
and understanding and understand and accept the terms, risks and conditions
of
the transactions contemplated by this Agreement; (ii) in connection with each
transaction contemplated hereby and the process leading to such transaction
the
Underwriter is and has been acting solely as a principal and is not the
financial advisor, agent or fiduciary of the Company, the Underwriter or their
respective affiliates, stockholders, creditors or employees or any other party;
(iii) the Underwriter has not assumed or will not assume an advisory, agency
or
fiduciary responsibility in favor of the Company or the Underwriter with respect
to any of the transactions contemplated hereby or the process leading thereto
(irrespective of whether the Underwriter has advised or is currently advising
the Company or the Underwriter on other matters) or any other obligation to
the
Company or the Underwriter except the obligations expressly set forth in this
Agreement; (iv) the Underwriter and its respective affiliates may be engaged
in
a broad range of transactions that involve interests that differ from those
of
the Company and the Underwriter and that the Underwriter has no obligation
to
disclose any of such interests by virtue of any advisory, agency or fiduciary
relationship; and (v) the Underwriter has not provided any legal, accounting,
regulatory or tax advice with respect to the offering contemplated hereby and
the Company and the Underwriter have consulted their own legal, accounting,
regulatory and tax advisors to the extent they deemed appropriate.
This
Agreement supersedes all prior agreements and understandings (whether written
or
oral) between the Company and the Underwriter, or any of them, with respect
to
the subject matter hereof. The Company and the Underwriter hereby
waive and release, to the fullest extent permitted by law, any claims that
the
Company and the Underwriter may have against the Underwriter with respect to
any
breach or alleged breach of agency or fiduciary duty.
14. Successors. This
Agreement will inure to the benefit of and be binding upon the parties hereto
and their respective successors and the officers and directors and controlling
Persons referred to in Section 7, and their successors and assigns, and no
other
Person will have any right or obligation hereunder except that the
representations, warranties, indemnities and agreements contained in this
Agreement also shall be deemed to be for the benefit of the Person or Persons,
if any, who control the Underwriter within the meaning of the 1933 Act and
for
the benefit of the Underwriter’s officers and directors.
15. Applicable
Law; Counterparts. This Agreement will be governed by and
construed in accordance with the laws of the State of New York without giving
effect to principles of conflicts of law. This Agreement may be
executed in any number of counterparts, each of which shall for all purposes
be
deemed to be an original and all of which shall together constitute but one
and
the same instrument.
16. Minimum
Investment Amounts. The Underwriter shall offer the Certificates
in minimum denominations of $25,000, provided that the Certificates must be
purchased in minimum total investments of $100,000.
[Signature
page follows]
If
the
foregoing correctly sets forth the agreement between the Depositor and
the Underwriter, please indicate your acceptance in the space
provided for the purpose below.
| Very truly yours, | |
| FINANCIAL ASSET SECURITIES | |
| CORP. | |
| By: /s/ ▇▇▇▇▇▇▇ ▇▇▇ | |
| Name: ▇▇▇▇▇▇▇ ▇▇▇ | |
| Title: Vice President |
CONFIRMED
AND ACCEPTED, as of the date first above written:
GREENWICH
CAPITAL MARKETS, INC.
By:
/s/ ▇▇▇▇▇▇▇
▇▇▇
Name:
▇▇▇▇▇▇▇ ▇▇▇
Title: Vice
President
SCHEDULE
I
Underwriting
Agreement dated October 11, 2007.
As
used
in this Agreement, the term “Registration Statement” refers to the
Registration Statement on Form S-3, File No. ▇▇▇-▇▇▇▇▇▇-▇▇
Closing
Date: October 30, 2007.
Approximate
Pool Balance: $1,025,576,924.10 of Mortgage Loans.
Cut-Off
Date: October 1, 2007.
Title
and
Description of Offered Certificates:
Soundview
Home Loan Trust 2007-OPT5, Asset-Backed Certificates, Series 2007-OPT5, Classes
designated on the following page:
|
Initial
Certificate Ratings
|
||||||||
|
Class
|
Class Principal
Balance
|
Pass-Through
Rate
|
Moody’s
|
S&P
|
DBRS
|
|||
|
Class
I-A-1
|
$ |
542,518,000.00
|
Variable
Pass-Through Rate
|
Aaa
|
AAA
|
AAA
|
||
|
Class
II-A-1
|
$ |
69,227,000.00
|
Variable
Pass-Through Rate
|
Aaa
|
AAA
|
AAA
|
||
|
Class
II-A-2
|
$ |
113,129,000.00
|
Variable
Pass-Through Rate
|
Aaa
|
AAA
|
AAA
|
||
|
Class
II-A-3
|
$ |
24,823,000.00
|
Variable
Pass-Through Rate
|
Aaa
|
AAA
|
AAA
|
||
|
Class
X-1
|
Notional
Amount
|
Variable
Pass-Through Rate
|
Aaa
|
AAA
|
AAA
|
|||
|
Class
X-2
|
Notional
Amount
|
Variable
Pass-Through Rate
|
Aaa
|
AAA
|
AAA
|
|||
|
Class
X-3
|
Notional
Amount
|
Variable
Pass-Through Rate
|
Aaa
|
AAA
|
AAA
|
|||
EXHIBIT
A
PRELIMINARY
TERM SHEET
Available
Upon Request
EXHIBIT
B
A
legend
in substantially the following form must appear on each Free Writing
Prospectus:
The
issuer has filed a registration statement (including a base prospectus) with
the
SEC for the offering to which this free writing prospectus
relates. Before you invest in this offering, you should read the base
prospectus in that registration statement and other documents the issuer has
filed with the SEC for more complete information about the issuer and this
offering. You may get these documents for free by visiting ▇▇▇▇▇ on the SEC
Web
site at ▇▇▇▇://▇▇▇.▇▇▇.▇▇▇. Alternatively, RBS Greenwich Capital will arrange
to
send you the base prospectus at no charge if you request it by calling
▇-▇▇▇-▇▇▇-▇▇▇▇ or emailing
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇.
This
free writing prospectus is being delivered to you solely to provide you with
information about the offering and to solicit an offer to purchase the offered
securities. Any such offer to purchase made by you will not be
accepted and will not constitute a contractual commitment by you to purchase
any
of the securities until we have accepted your offer to purchase such
securities. Any such commitment shall be subject to the conditions
specified below.
This
free writing prospectus is not required to contain all of the information that
is required to be included in the base prospectus and the prospectus
supplement. The information in this free writing prospectus is
preliminary and is subject to completion or change. The information in this
free
writing prospectus, if conveyed prior to the time of your commitment to purchase
the offered securities, supercedes any prior version of this free writing
prospectus and any information contained in any prior similar free writing
prospectus relating to these securities. If a preliminary prospectus
is conveyed to you prior to your commitment to purchase, that document
supersedes all other information provided to you concerning the offered
securities.
This
free writing prospectus is not an offer to sell or a solicitation of an offer
to
buy these securities in any state where such offer, solicitation or sale is
not
permitted.
The
securities referred to in this free writing prospectus are being offered when,
as and if issued. The issuer is not obligated to issue any such
securities or any similar securities, and all or a portion of the securities
may
not be issued that have the characteristics described herein. The
Underwriter’s obligation to deliver such securities is subject to the terms and
conditions of the underwriting agreement with the issuer and the availability
of
the securities having the characteristics described herein. If, for
any reason, the issuer does not deliver such securities, the underwriter will
notify you, and neither the issuer nor any underwriter will have any obligation
to you to deliver all or any portion of the securities which you have committed
to purchase, and there will be no liability between us as a consequence of
the
non-delivery.
For
asset-backed and mortgage-backed securities: Certain of the information
contained herein may be based on numerous assumptions (including preliminary
assumptions about the pool assets and structure), which may not be specifically
identified as assumptions in the information. Any such information or
assumptions are subject to change. The information in this free
writing prospectus may reflect assumptions specifically requested by
you. If so, prior to the time of your commitment to purchase, you
should request updated information based on any assumptions specifically
required by you.
Any
legends, disclaimers or other notices that may appear below or on any electronic
communication to which this free writing prospectus is attached which state
that
(1) these materials do not constitute an offer (or a solicitation of an offer),
(2) no representation is made as to the accuracy or completeness of these
materials and that these materials may not be updated or (3) these materials
may
be confidential are not applicable to this communication and should be
disregarded. Such legends, disclaimers or other notices have been
automatically generated as a result of this communication having been sent
via
Bloomberg or another system.
EXHIBIT
C
PROSPECTUS
SUPPLEMENT dated October 11, 2007 (To Prospectus dated July 30,
2007)
$749,697,000
(Approximate)
Issuing
Entity
GREENWICH
CAPITAL FINANCIAL PRODUCTS, INC.
Sponsor
FINANCIAL
ASSET SECURITIES CORP.
Depositor
OPTION
ONE MORTGAGE CORPORATION
Servicer
ASSET-BACKED
CERTIFICATES, SERIES 2007-OPT5
|
Consider
carefully the risk factors beginning on page S-15 in
this prospectus
supplement and on page 2 in the prospectus.
The
certificates represent
obligations of the Issuing Entity only and do not represent
an interest in
or obligation of Financial Asset Securities Corp. or
Option One Mortgage
Corporation, or any of their affiliates. This prospectus
supplement may be
used to offer and sell the certificates only if accompanied by the
prospectus.
|
Only
the seven classes of certificates identified below are
being offered by
this prospectus supplement and the accompanying
prospectus.
|
|
|
The Offered Certificates
|
||
|
· Represent
ownership interests in a trust consisting of a pool of
first lien and
second lien, fixed-rate and adjustable-rate residential
mortgage
loans. The mortgage loans will be segregated into two groups,
one consisting of mortgage loans with principal balances
at origination
that conform to ▇▇▇▇▇▇▇ Mac and ▇▇▇▇▇▇ ▇▇▇ loan limits
and one consisting
of mortgage loans with principal balances at origination
that may or may
not conform to ▇▇▇▇▇▇▇ Mac and ▇▇▇▇▇▇ ▇▇▇ loan limits.
|
||
|
· Will,
except in the case of the Class X Certificates, accrue
interest at a rate
equal to one-month LIBOR plus the related fixed margin,
subject to certain
limitations described in this prospectus supplement.
|
||
|
· The
Class X-1 Certificates will accrue interest on a related
notional amount
at a fixed pass-through rate.
|
||
|
· The
Class X-2 and Class X-3 Certificates will consist of
multiple components
and each such component will accrue interest on a related
notional amount
at a fixed pass-through rate.
|
||
|
· Will
be entitled to monthly distributions beginning in November
2007.
|
||
|
Credit Enhancement
|
||
|
· Subordination
as described in this prospectus supplement under “Description of the
Certificates Subordination.”
|
||
|
· Overcollateralization
as described in this prospectus supplement under “Description of the
Certificates—Overcollateralization Provisions.”
|
||
|
· Excess
Interest as described in this prospectus supplement under
“Description of
the Certificates —Overcollateralization Provisions.”
|
||
|
In
addition, the offered certificates will have the benefit
of an Interest
Rate Swap Agreement, certain payments made pursuant to
an Interest Rate
Cap Agreement and a Basis Risk Cap
Agreement.
|
|
Class
|
Original
Certificate Principal Balance(1)
|
Pass-Through
Rate(2)
|
||||||
|
Class
I-A-1
|
$ |
542,518,000
|
Variable
|
|||||
|
Class
II-A-1
|
$ |
69,227,000
|
Variable
|
|||||
|
Class
II-A-2
|
$ |
113,129,000
|
Variable
|
|||||
|
Class
II-A-3
|
$ |
24,823,000
|
Variable
|
|||||
|
Class
X-1
|
(3)
|
(2)
|
||||||
|
Class
X-2
|
(3)
|
(2)
|
||||||
|
Class
X-3
|
(3)
|
(2)
|
||||||
______________________
|
(1)
|
Approximate. The
original certificate principal balances are subject to a variance
of plus
or minus 10%.
|
|
(2)
|
Determined
as described under “Description of the Certificates—Pass-Through Rates” in
this prospectus supplement and subject to limitation or increase
under
certain circumstances.
|
|
(3)
|
Notional
Amount as described under “Description of the Certificates” in this
prospectus supplement.
|
Greenwich
Capital Markets, Inc. (the “Underwriter”) will offer the offered certificates
from time to time to the public in negotiated transactions or otherwise at
varying prices to be determined at the time of sale. The proceeds to
the Depositor from the sale of the offered certificates, before deducting
expenses and underwriting fees, will be approximately
$763,101,361. The Underwriter’s commission will be any positive
difference between the price it pays to the Depositor for the offered
certificates and the amount it receives from the sale of such certificates
to
the public.
Neither
the SEC nor any state securities commission has approved these securities or
determined that this prospectus supplement or the prospectus is accurate or
complete. Any representation to the contrary is a criminal
offense. The Attorney General of the State of New York has not passed
on or endorsed the merits of this offering. Any representation to the
contrary is unlawful.
Delivery
of the offered certificates will be made in book-entry form through the
facilities of The Depository Trust Company, and upon request through the
facilities of Clearstream Banking Luxembourg and the Euroclear System, on or
about October 30, 2007.
rates
of
the certificates. If the rate of prepayments on the Mortgage Loans is faster
than anticipated, the schedule on which payments due under the Interest Rate
Swap Agreement are calculated may exceed the aggregate principal balance of
the
Mortgage Loans, thereby increasing the relative proportion of interest
collections on the Mortgage Loans that must be applied to make net payments
to
the Swap Provider. The combination of a rapid rate of prepayment and low
prevailing interest rates could adversely affect the yields on the Floating
Rate
Certificates and the Class X Certificates. In addition, any
termination payment payable to the Swap Provider (other than a termination
payment resulting from a Swap Provider Trigger Event) in the event of early
termination of the Interest Rate Swap Agreement will reduce amounts available
for distribution to certificateholders.
Upon
early termination of the Interest Rate Swap Agreement, the trust or the Swap
Provider may be liable to make a Swap Termination Payment to the other party
(regardless of which party caused the termination). The Swap
Termination Payment will be computed in accordance with the procedures set
forth
in the Interest Rate Swap Agreement. In the event that the trust is
required to make a Swap Termination Payment, that payment will be paid on the
related Distribution Date, and on any subsequent Distribution Dates until paid
in full, generally prior to distributions to certificateholders. This
feature may result in losses on the certificates. Due to the priority
of the applications of the available funds, the Subordinate Certificates will
bear the effects of any shortfalls resulting from a Net Swap Payment or Swap
Termination Payment by the trust before such effects are borne by the Class
A
Certificates and one or more classes of Subordinate Certificates may suffer
a
loss as a result of such payment.
To
the
extent that distributions on the Floating Rate Certificates and the Class X
Certificates depend in part on payments to be received by the trust under the
Interest Rate Swap Agreement, the ability of the Trustee to make such
distributions on such certificates will be subject to the credit risk of the
Swap Provider to the Interest Rate Swap Agreement. See “Description
of the Certificates—The Swap Provider” in this prospectus
supplement.
The
Interest Rate Cap Agreement is Subject to Counterparty
Risk
The
assets of the trust include certain payments made under the Interest Rate Cap
Agreement, which will require the counterparty thereunder to make certain
payments for the benefit of the holders of the Floating Rate Certificates and
the Class X Certificates. To the extent that distributions on such
certificates depend in part on payments to be received by the Cap Trustee from
the Interest Rate Cap Provider, the ability of the Trustee to make such
distributions on such certificates will be subject to the credit risk of the
Interest Rate Cap Provider. Although there is a mechanism in place to
facilitate replacement of the Interest Rate Cap Agreement upon the default
or
credit impairment of the related counterparty, there can be no assurance that
any such mechanism will result in the ability to obtain a suitable replacement
Interest Rate Cap Agreement.
Recent
Accounting Implications
Various
factors may influence the accounting treatment applicable to an investor’s
acquisition and holding of asset-backed securities. Accounting standards, and
the application and interpretation of such standards, are subject to change
from
time to time. For example, recently issued Statement of Financial Accounting
Standards No. 155, Accounting for Certain Hybrid Financial Instruments - an
Amendment of FASB Statements No. 133 and 140 may result in changes to the
accounting treatment for certain types of securities and could materially impair
the liquidity of affected securities. Investors are encouraged to
consult with their own accountants and advisors for advice as to the appropriate
accounting treatment for the Certificates and to evaluate the potential
implications of such accounting treatment.
Lack
of Liquidity
Greenwich
Capital Markets, Inc. (the “Underwriter”) intends to make a secondary market in
the Offered Certificates, but has no obligation to do so. There is no
assurance that such a secondary market will develop or, if it develops, that
it
will continue. Consequently, you may not be able to sell your
certificates readily or at prices that will enable you to realize your desired
yield. The market values of the certificates are likely to fluctuate;
these fluctuations may be significant and could result in significant losses
to
you.
If
any
Offered Certificate, or any interest therein, is acquired or held in violation
of the provisions of this section, the next preceding permitted beneficial
owner
will be treated as the beneficial owner of that certificate, retroactive to
the
date of transfer to the purported beneficial owner. Any purported beneficial
owner whose acquisition or holding of an Offered Certificate, or interest
therein, was effected in violation of the provisions of this section shall
indemnify to the extent permitted by law and hold harmless the Depositor, the
Trustee and the Servicer from and against any and all liabilities, claims,
costs
or expenses incurred by such parties as a result of such acquisition or
holding.
Prospective
Plan investors should consult with their legal advisors concerning the impact
of
ERISA and the Exemption or any other exemption, and the potential consequences
in their specific circumstances, prior to making an investment in the
certificates. Moreover, each Plan fiduciary should determine whether under
the
general fiduciary standards of investment prudence and diversification, an
investment in the Offered Certificates is appropriate for the Plan, taking
into
account the overall investment policy of the Plan and the composition of the
Plan’s investment portfolio.
LEGAL
INVESTMENT CONSIDERATIONS
The
Offered Certificates will not constitute “mortgage related securities” for
purposes of the Secondary Mortgage Market Enhancement Act of 1984
(“SMMEA”).
The
Depositor makes no representations as to the proper characterization of any
class of Offered Certificates for legal investment or other purposes, or as
to
the ability of particular investors to purchase any class of Offered
Certificates under applicable legal investment restrictions. These
uncertainties may adversely affect the liquidity of any class of Offered
Certificates. Accordingly, all institutions whose investment
activities are subject to legal investment laws and regulations, regulatory
capital requirements or review by regulatory authorities should consult with
their legal advisors in determining whether and to what extent any class of
Offered Certificates constitutes a legal investment or is subject to investment,
capital or other restrictions. See “Legal Investment Considerations”
in the prospectus.
METHOD
OF
DISTRIBUTION
Subject
to the terms and conditions set forth in the underwriting agreement, dated
October 11, 2007 (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
Certificates.
Distribution
of the Offered Certificates 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
Certificates, before deducting expenses payable by the Depositor and
underwriting fees, will be approximately $763,101,361. The
Underwriter’s commission will be any positive difference between the price it
pays to the Depositor for the Offered Certificates and the amount it receives
from the sale of the Offered Certificates to the public. In
connection with the purchase and sale of the Offered Certificates, 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 Certificates of each class to the public in Europe and the
United States.
Until
the
distribution of the Offered Certificates is completed, rules of the SEC may
limit the ability of the Underwriter and certain selling group members to bid
for and purchase the Offered Certificates. As an exception to these
rules, the Underwriter is permitted to engage in certain transactions that
stabilize the price of the Offered Certificates. Such transactions
consist of bids or purchases for the purpose of pegging, fixing or maintaining
the price of the Offered Certificates.