FINANCIAL ASSET SECURITIES CORP. Soundview Home Loan Trust 2006-OPT1 Asset- Backed Certificates, Series 2006-OPT1 UNDERWRITING AGREEMENT
FINANCIAL
ASSET SECURITIES CORP.
Asset-Backed
Certificates, Series 2006-OPT1
March
7,
2006
To
the
Underwriters named on
the
signature page hereof
Ladies
and Gentlemen:
Financial
Asset Securities Corp., a Delaware corporation (the “Company”), proposes to sell
to Greenwich Capital Markets, Inc. (“RBS GC”), and WaMu Capital Corp. (“WaMu”
and, together with RBS GC, the “Underwriters”), its Soundview Home Loan Trust
2006-OPT1 Certificates in the classes, in the respective original principal
amounts and with the designations set forth in Schedule I hereto (the “Offered
Certificates”). Only the Offered Certificates are being purchased by the
Underwriters hereunder. The Offered Certificates, together with the Class
M-9,
Class M-10, Class M-11, Class C, Class P, Class R and Class R-X Certificates
(collectively, the “Certificates”), will be issued by the Company pursuant to a
Pooling and Servicing Agreement (the “Pooling Agreement”), dated as of March 1,
2006, among the Company, as depositor, Option One Mortgage Corporation, as
originator, sponsor and servicer (the “Originator”, “Sponsor” and “Servicer”)
and Deutsche Bank National Trust Company, as trustee (the “Trustee”). Each
Certificate will evidence the holder’s beneficial ownership in a trust fund (the
“Trust Fund”), created pursuant to the Pooling Agreement, and consisting
primarily of adjustable rate, residential mortgage loans (the “Mortgage Loans”)
secured primarily by first liens on one- to four-family residential properties.
The Offered Certificates are described more fully in Schedule I hereto and
in
the Final Prospectus Supplement furnished to the Underwriters by the Company
and
referred to below.
The
Mortgage Loans will be serviced by the Servicer pursuant to the Pooling
Agreement.
Capitalized
terms used but not otherwise defined herein shall have the respective meanings
assigned to them in the Pooling Agreement.
1. Representations
and Warranties.
The
Company represents and warrants to, and agrees with, the Underwriters that
as of
the date hereof and as of the Closing Date:
(a) The
Company has filed with the Securities and Exchange Commission (the “Commission”)
a registration statement on Form S-3 (the file number of which is set forth
in
Schedule I hereto) for the registration of securities, issuable in series
under
the Securities Act of 1933, as amended (the “Securities Act”), which
registration statement was declared effective on the date set forth in Schedule
I hereto. The Company meets the requirements for use of Form S-3 under the
Securities Act, and such registration statement, as amended at the date hereof,
meets the requirements set forth in Rule 415(a)(1)(x) under the Securities
Act
and complies in all other material respects with the Securities Act and the
rules and regulations thereunder (“the Regulations”). Copies of such
registration statement have been delivered by the Company to the Underwriters.
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
and Rule 433 under the Securities Act a final prospectus dated September
26,
2005 (the “Base Prospectus”), a free writing prospectus dated March 3, 2006,
relating to the Offered Certificates (the “Pricing Free Writing Prospectus”) and
a final prospectus supplement dated March 7, 2006, relating to the Offered
Certificates (the “Final Prospectus Supplement”). The Base Prospectus and the
Pricing Free Writing Prospectus relating to the Offered Certificates in the
form
to be filed with the Commission pursuant to Rule 433(d) are hereinafter together
called the “Pricing Free Writing Prospectus,” and the Base Prospectus and the
Final 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.” References herein
to a 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 such Prospectus, and any reference to any
amendment or supplement to the Final Prospectus shall be deemed to refer
to and
include any document filed under the Securities Exchange Act of 1934, as
amended
(the “Exchange Act”) after the date of the Final Prospectus and incorporated by
reference in the Final Prospectus, and any reference to any amendment to
the
Registration Statement shall be deemed to include any report of the Company
filed with the Commission pursuant to Section 13(a) or 15(d) of the Exchange
Act
after the effective date that is incorporated by reference in the Registration
Statement.
(b) (i)
The
Registration Statement, the Pricing Free Writing Prospectus and the Final
Prospectus conform, and any further amendments or supplements to the
Registration Statement or the Final Prospectus will conform when they become
effective or are filed with the Commission, as the case may be, in all material
respects to the requirements of the Securities Act and the Regulations
thereunder, (ii) the Registration Statement, as of the applicable effective
date
as to each part of the Registration Statement, does not contain and will
not
contain any untrue statement of a material fact and does not omit and will
not
omit to state any material fact required to be stated therein or necessary
in
order 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 and did not omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however,
that no
representation or warranty is made as to (x) information omitted from the
Pricing Free Writing Prospectus but included in the Final Prospectus, (y)
information contained in the Pricing Free Writing Prospectus that has been
modified in the Final Prospectus or (z) information contained in or omitted
from
the Registration Statement or either Prospectus in reliance upon and in
conformity with written information furnished to the Company in writing by
any
Underwriter, directly or through RBS GC, as representative of the Underwriters,
expressly for use therein, as specified in Exhibit A hereto (the “Underwriters’
Information”) and (iv) the Final Prospectus, as of its date, and as amended or
supplemented as of the Closing Date, does not and will not contain any untrue
statement of a material fact and does not and will not omit to state any
material fact necessary in order to make the statements therein, in the light
of
the circumstances under which they were made, not misleading; provided,
however,
that
the Company makes no representations or warranties as to statements contained
in
or omitted from the Registration Statement or the Final Prospectus or any
amendment or supplement thereto made in reliance upon and in conformity with
the
Underwriters’ Information.
(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 as described in the Final
Prospectus, and to enter into and perform its obligations under this Agreement,
the Pooling Agreement, the Mortgage Loan Purchase Agreement, dated as of
March
7, 2006, among Option One Mortgage Corporation, Option One Owner Trust 2001-1A,
Option One Owner Trust 2001-1B, Option One Owner Trust 2001-2, Option One
Owner
Trust 2002-3, Option One Owner Trust 2003-4, Option One Owner Trust 2003-5,
Option One Owner Trust 2005-6, Option One Owner Trust 2005-7, Option One
Owner
Trust 2005-8, Option One Owner Trust 2005-9 (collectively the “Sellers”) and the
Company (the “Mortgage Loan Purchase 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) This
Agreement has been duly and validly authorized, executed and delivered by
the
Company.
(f) Each
of
the Pooling Agreement and the Mortgage Loan Purchase Agreement (collectively,
the “Other Agreements”), when executed and delivered as contemplated thereby,
will have been duly and validly 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 Mortgage Loan Purchase Agreement,
limitations of public policy under applicable securities laws.
(g) As
of the
Closing Date, the Offered Certificates will be duly and validly authorized
and,
when duly and validly executed, authenticated and delivered in accordance
with
the Pooling Agreement and delivered to the Underwriters for the account of
the
Underwriters against payment therefor as provided herein, will be duly and
validly issued and outstanding and entitled to the benefits of the Pooling
and
Servicing Agreement. The Offered Certificates, will not be “mortgage related
securities,” as such term is defined in the singular in the Exchange Act and as
such term is defined in the singular in the Secondary Mortgage Market
Enhancement Act of 1984.
(h) 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.
(i) 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.
(j) 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.
(k) 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.
(l) 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 (x)
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 and (y) sell
the Offered Certificates to the Underwriters, and upon delivery to the
Underwriters of the Offered Certificates pursuant to this Agreement, each
Underwriter will have good title to the Offered Certificates purchased by
such
Underwriter, in each case free of Liens granted by or imposed upon the
Company.
(m) 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”) and the Pooling Agreement is not required to be qualified under
the Trust Indenture Act of 1939, as amended.
(n) The
Pooling Agreement, the Mortgage Loan Purchase Agreement and the Offered
Certificates conform or will conform, as of the Closing Date, in all material
respects to the descriptions thereof contained in the Pricing Free Writing
Prospectus and the Final Prospectus.
(o) The
Company is not and, as of the date on which the first offer of the Offered
Certificates is made, will not be an “ineligible issuer” as defined in Rule 405
under the Securities Act.
(p) There
has
not been any material adverse change in the business operations, financial
condition, properties or assets of the Company since the date of its latest
audited financial statements which would have a material adverse effect on
the
ability of the Company to perform its obligations under this Agreement or
the
Other Agreements.
(q) There
are
no contracts, indentures, or other documents of a character required by the
Securities Act or by the Regulations thereunder to be described or referred
to
in the Registration Statement or the Final Prospectus or to be filed as exhibits
to the Registration Statement which have not been so described or referred
to
therein or so filed or incorporated by reference as exhibits
thereto.
(r) All
approvals, authorizations, consents, orders or other actions of any person,
corporation or other organization, or of any court, governmental agency or
body
or official (except with respect to the state securities or "blue sky" laws
of
various jurisdictions) required in connection with the valid and proper
authorization, issuance and sale of the Offered Certificates pursuant to
this
Agreement and the Other Agreements have been or will be taken or obtained
on or
prior to the Closing Date.
(s) Under
generally accepted accounting principles and for federal income tax purposes,
the Company will report the transfer of the Mortgage Loans to the Trustee
in
exchange for the Offered Certificates and the sale of the Offered Certificates
to the Underwriters pursuant to this Agreement as a sale of the interest
in the
Mortgage Loans evidenced by the Offered Certificates. The consideration received
by the Company upon the sale of the Offered Certificates to the Underwriters
will constitute reasonably equivalent value and fair consideration for the
Offered Certificates. The Company will be solvent at all relevant times prior
to, and will not be rendered insolvent by, the sale of the Offered Certificates
to the Underwriters. The Company is not selling the Offered Certificates
to the
Underwriters with any intent to hinder, delay or defraud any of the creditors
of
the Company.
(t) At
the
Closing Date, the respective classes of Offered Certificates shall have been
assigned ratings no lower than those set forth in Schedule I hereto by the
nationally recognized statistical rating organizations identified in Schedule
I
hereto.
2. Purchase
and Sale.
Subject
to the terms and conditions and in reliance upon the representations and
warranties set forth herein, the Company agrees to sell the Offered Certificates
to the Underwriters, and the Underwriters agree (except as set forth in Section
10 hereof) severally, but not jointly, to purchase, from the Company, the
Offered Certificates in the respective principal amounts (or notional amounts,
as applicable) of the Classes of Offered Certificates set forth in Schedule
I
hereto at the respective purchase prices set forth therein (plus accrued
interest, if applicable); provided,
however,
that
the purchase prices set forth in Schedule I hereto may be replaced with the
consent of the Company with updated purchase prices specified in a purchase
price adjustment letter to be delivered by the Underwriters to the Depositor
at
or prior to the Closing Date.
3. Delivery
and Payment.
Delivery of and payment for the Offered Certificates shall be made at the
offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, Two World Financial Center, ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇ at 10:00 a.m., Eastern Standard Time, on the date specified
in
Schedule I hereto (or such later date not later than seven business days
after
such specified date as the Underwriters shall designate), which date and
time
may be changed by agreement between the Underwriters and the Company or as
provided herein (such date and time of delivery and payment for the Offered
Certificates being herein called the “Closing Date”). Delivery of the Offered
Certificates shall be made to the Underwriters, against payment by the
Underwriters of the purchase price therefor in immediately available funds
wired
to such bank as may be designated by the Company, or such other manner of
payment as may be agreed upon by the Company and the Underwriters. The Offered
Certificates (other than the Class C, Class P, Class R and Class R-X
Certificates) to be so delivered shall be in book-entry form, and the Class
C,
Class P, Class R and Class R-X Certificates shall be in definitive fully
registered form, in each case, unless otherwise agreed, in such denominations
and registered in such names as the Underwriters may have requested in writing
not less than two full business days in advance of the Closing
Date.
The
Company agrees to have the Offered Certificates available for inspection,
checking and packaging by the Underwriters in the Borough of Manhattan in
The
City of New York, not later than 10:00 a.m. on the business day prior to
the
Closing Date.
4. Offering
of the Offered Certificates.
It is
understood that, subject to the terms and conditions hereof, the Underwriters
propose 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 Underwriters that:
(a) The
Company has prepared and/or will prepare the Pricing Free Writing Prospectus
and
the Final Prospectus setting forth the amount of Offered Certificates covered
thereby and the terms thereof not otherwise specified in the Base Prospectus,
the expected proceeds to the Company from the sale of such Offered Certificates,
and such other information as the Underwriters and the Company may deem
appropriate in connection with the offering of such Offered Certificates.
The
Company promptly will advise the Underwriters or the Underwriters’ counsel (i)
when the Pricing Free Writing Prospectus or the Final Prospectus shall each
have
been filed or transmitted to the Commission for filing pursuant to Rule 433
or
Rule 424, (ii) when any amendment to the Registration Statement shall have
become effective or any further supplement to the Final 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, and shall not file any amendments to the
Registration Statement as in effect with respect to the Offered Certificates,
or
any amendments or supplements to any of the prospectuses, unless it shall
have
first delivered copies of such amendments or supplements to the Underwriters
and
given the Underwriters reasonable opportunity to review the same or, if the
Underwriters have reasonably objected thereto, promptly after receipt thereof,
(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 or any authority administering any state
securities or “blue sky” law 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, (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 the occurrence of an event 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 each of 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 Securities Act, as applicable, or will cause
the
Pricing Free Writing Prospectus and the Final Prospectus to each 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 Securities 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 to amend or supplement the Final Prospectus or the Registration
Statement to comply with the Securities Act or the Regulations, the Company
promptly will prepare and file with the Commission, at the expense of the
Company, subject to paragraph (a) of this Section 5, an amendment or supplement
that will correct such statement or omission or an amendment that will effect
such compliance and, if such amendment or supplement is required to be contained
in a post-effective amendment to the Registration Statement, the Company
will
use its best efforts to cause such amendment to the Registration Statement
to be
made effective as soon as possible. Neither the Underwriters’ consent to nor
their distribution of any amendment or supplement shall constitute a waiver
of
any of the conditions set forth in Section 8.
(c) The
Company will furnish to the Underwriters and the Underwriters’ counsel, without
charge, signed copies of the Registration Statement (including exhibits thereto)
and each amendment thereto which shall become effective on or prior to the
Closing Date, and so long as delivery of a prospectus by an Underwriter may
be
required by the Securities Act, as many copies of the Final Prospectus (to
the
extent that copies of the Final Prospectus are printed at a financial printer)
and any amendments and supplements thereto as the Underwriters may reasonably
request.
(d) [Reserved]
(e) The
Company will furnish such information, execute such instruments and take
such
action, if any, as may be required to qualify the Offered Certificates for
sale
under the laws of such jurisdictions as the Underwriters may designate and
will
maintain such qualifications in effect so long as required for the distribution
of the Offered Certificates; provided,
however,
that
the Company shall not be required to qualify to do business in any jurisdiction
where it is not now qualified or to take any action that would subject it
to
general or unlimited service of process in any jurisdiction where it is not
now
subject to such service of process.
(f) The
Company will pay or cause to be paid all costs and expenses in connection
with
the transactions herein contemplated, including, but not limited to, the
fees
and disbursements of its counsel; the costs and expenses of printing (or
otherwise reproducing) and delivering the Pooling Agreement and the
Certificates; the fees, costs and expenses of the Trustee (to the extent
permitted under the Pooling Agreement, and except to the extent that another
party is obligated to pay such amounts thereunder); the fees and disbursements
of accountants for the Company; the costs and expenses in connection with
the
qualification or exemption of the Offered Certificates under state securities
or
“blue sky” laws, including filing fees and reasonable fees and disbursements of
counsel in connection therewith, in connection with the preparation of any
blue
sky survey and in connection with any determination of the eligibility of
the
Offered Certificates for investment by institutional investors and the
preparation of any legal investment survey; the expenses of printing any
such
blue sky survey and legal investment survey; the cost and expenses in connection
with the preparation, printing and filing of the Registration Statement
(including exhibits thereto), the Base Prospectus, the Pricing Free Writing
Prospectus and the Final Prospectus, the preparation and production of this
Agreement and the delivery to each Underwriter of such copies of the Pricing
Free Writing Prospectus and the Final Prospectus (to the extent that copies
of
the Pricing Free Writing Prospectus or Final Prospectus are printed at a
financial printer) as each Underwriter may reasonably request; and the fees
of
the Rating Agencies (as defined in Section 8 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 Final Prospectus. To
the
extent that the Underwriters have complied with the terms of Section 6 and
Section 7 hereof, the Company will file with the Commission any Free Writing
Prospectus (as defined herein) delivered to investors in accordance with
Sections 6 and 7 as the Company is required under the Regulations, and shall
do
so within the applicable period of time prescribed by the
Regulations.
6. Representations,
Warranties and Covenants of Each Underwriter.Each
Underwriter represents, warrants, 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 (or as defined herein).
(b) In
disseminating information to potential investors, it has complied and will
continue to comply fully with the 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 proscribed
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
Regulations.
(g) 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”), and with respect to any class of Offered
Certificates with a minimum denomination of less than $100,000, it has not
made
and will not make an offer of Offered Certificates to the public in that
Relevant Member State prior to the publication of a prospectus in relation
to
the Offered 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
Offered 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 Offered Certificates to
the public” in relation to any class of Offered Certificates, which class has a
minimum denomination of less than $100,000, 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 Offered 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.
(h) 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 substantially to the
following effect in compliance with Rule 173 under the Securities
Act:
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 as is
disseminated by any Underwriter to a potential investor, which information
is
prepared on the basis of or derived from, but does not include, (A) Issuer
Information, (B) information contained in the Registration Statement, either
Prospectus or any amendment or supplement to any of them, taking into account
information incorporated therein by reference (other than information
incorporated by reference from any information regarding the Offered
Certificates that is disseminated by any Underwriter to a potential investor)
or
(C) Pool Information.
(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 Company or any Underwriter that constitutes a “free writing
prospectus” within the meaning of Rule 405 under the Securities
Act.
(iv) “Issuer
Information” means (1) the information contained in the Preliminary Term Sheet,
and (2) any other information provided in writing by the Depositor to the
Underwriters specifically for dissemination to potential investors, attached
hereto as Exhibit D.
(v) “Preliminary
Term Sheet” means the preliminary term sheet dated February 28, 2006, attached
hereto as Exhibit C.
(b) Neither
the Company nor any 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
Underwriters, Derived Information, unless (i) if an Underwriter seeks to
disseminate such information, such Underwriter or RBS GC, as representative
of
the Underwriters, 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 RBS GC, as representative of the Underwriters.
An
Underwriter may convey Derived Information to a potential investor prior
to
entering into a Contract of Sale with such investor; provided,
however,
that
Derived Information shall not be distributed in a manner reasonably designed
to
lead to its broad unrestricted dissemination within the meaning of Rule 433(d)
under the Securities Act. Each 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 any 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 any 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
(d) Each
Underwriter shall deliver (directly or through RBS GC, as representative
of the
Underwriters) to the Company and its counsel a copy, in electronic form,
of each
Free Writing Prospectus disseminated by such Underwriter that is required
to be
filed with the Commission, not later than two business days prior to the
date on
which such Free Writing Prospectus is required under the Regulations to be
so
filed.
8. Conditions
to the Purchase of the Offered Certificates.
The
obligations of each 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 Securities Act.
(b) The
Company shall have delivered to each 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
Underwriters and the Company shall have received a negative assurance letter
of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP with respect to each Prospectus;
(d) The
Underwriters shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Wood LLP or from
counsel for the Company, one or more favorable opinions, dated the Closing
Date,
to the effect that:
(i) The
Registration Statement has become effective under the Securities Act; to
the
best knowledge of such counsel, no stop order suspending the effectiveness
of
the Registration Statement has been issued and not withdrawn, no proceedings
for
that purpose have been instituted or threatened and not terminated; and the
Registration Statement and the Final Prospectus (in each case other than
the
financial and statistical information contained therein and documents
incorporated or deemed to be incorporated by reference in the Registration
Statement or the Final Prospectus, as the case may be, as of such date pursuant
to Item 12 of Form S-3, as to which such counsel need express no opinion),
as of
their respective effective or issue dates each appeared on its face to be
appropriately responsive to the applicable requirements of the Securities
Act
and the Regulations thereunder;
(ii) This
Agreement has been duly authorized, executed and delivered by the
Company;
(iii) Each
of
the Pooling
Agreement and the Mortgage Loan Purchase Agreement has been duly authorized,
executed and delivered by the Company and constitutes a legal, valid and
binding
agreement of the Company, enforceable against the Company in accordance with
its
terms, subject, as to enforceability, to bankruptcy, insolvency, reorganization,
moratorium and other similar laws affecting creditors’ rights generally and to
general principles of equity, regardless of whether enforcement is sought
in a
proceeding in equity or at law;
(iv) The
statements in the Base Prospectus under the headings “Material Federal Income
Tax Consequences” and “ERISA Considerations,” the statements in the Prospectus
Supplement under the headings “Federal Income Tax Consequences” and
“Considerations for Benefit Plan Investors” to the extent that they constitute
matters of federal law or legal conclusions with respect thereto are correct
in
all material respects with respect to those consequences or aspects that
are
discussed;
(v) The
direction
by
the Company to the Trustee to execute, authenticate and deliver the Offered
Certificates has been duly authorized by the Company, and the Offered
Certificates, when executed and authenticated in the manner contemplated
in the
Pooling Agreement, will be validly issued and outstanding and entitled to
the
benefits of the Pooling Agreement;
(vi) The
Offered Certificates and the Pooling Agreement conform in all material respects
to the descriptions thereof contained in the Final Prospectus;
(vii) The
Pooling Agreement is not required to be qualified under the Trust Indenture
Act
of 1939, as amended, and neither the Company nor the Trust is required to
be
registered under the Investment Company Act; and
(viii) Assuming
compliance with the Pooling and Servicing Agreement for federal income tax
purposes, each REMIC created thereunder will qualify as a REMIC within the
meaning of Section 860D of the Internal Revenue Code of 1986, as
amended.
(e) The
Underwriters shall have received from the Counsel of the Company or an affiliate
of the Company, a favorable opinion, dated the Closing Date, to the effect
that:
(i) The
Company has been duly organized and is validly existing as a corporation
in good
standing under the laws of the State of Delaware and has all corporate power
and
authority necessary to own or hold its properties and to conduct its business
as
now conducted by it and to enter into and perform its obligations under this
Agreement and the Other Agreements;
(ii) To
the
best knowledge of such counsel, there are no actions, proceedings or
investigations pending or threatened against or affecting the Company before
or
by any court, arbitrator, administrative agency or other governmental authority
reasonably likely to be adversely determined that would materially and adversely
affect the ability of the Company to carry out the transactions contemplated
in
this Agreement or the Other Agreements;
(iii) Based
upon such counsel’s review of those laws, regulations and rules of the State of
New York and of the federal laws of the United States of America that are
normally applicable to transactions of the type contemplated by this Agreement
and the Other Agreements, to such counsel’s knowledge, no consent, approval,
authorization or order of, or filing or registration with, any state or federal
court or governmental agency or body is required for the consummation by
the
Company of the transactions contemplated herein, except such as may be required
under the blue sky laws of any jurisdiction in connection with the purchase
and
distribution of the Offered Certificates, and except those that, if not so
obtained, would not materially and adversely affect the ability of the Company
to perform its obligations under this Agreement or the Other
Agreements;
(iv) The
Company is not in violation of its certificate of incorporation or by-laws
or in
default under any agreement, indenture or instrument the effect of which
violation or default would be material
to the
Company, and none of (A) the issuance and sale of the Offered Certificates,
(B)
the execution or delivery of or performance under this Agreement or the Other
Agreements, and (C) the consummation of any other of the transactions
contemplated herein or therein will conflict with or result in a breach or
violation of any term or provision of, or constitute a default (or an event
which with the passing of time or notification, or both, would constitute
a
default) under, the certificate of incorporation or by-laws of the Company,
or,
to the knowledge of such counsel, any indenture or other agreement or instrument
to which the Company or any of its affiliates is a party or by which it or
any
of them is bound, or any New York or federal statute or regulation applicable
to
the Company or any of its affiliates or, to the knowledge of such counsel,
any
order of any New York or federal court, regulatory body, administrative agency
or governmental body having jurisdiction over the Company or any of its
affiliates; and
(v) Such
other matters as may be reasonably satisfactory to the Underwriters and counsel
for the Underwriters.
(f) The
Underwriters shall have received from the counsel for Option One Mortgage
Corporation (“Option One”), as originator, sponsor, servicer and seller a
favorable opinion, dated the Closing Date, to the effect that:
(i) Option
One has been duly organized and is validly existing as a corporation in good
standing under the laws of its state of incorporation and has all corporate
power and authority necessary to own or hold its properties and to conduct
its
business as now conducted by it and to enter into and perform its obligations
under the Pooling and Servicing Agreement;
(ii) To
the
best knowledge of such counsel, there are no actions, proceedings or
investigations pending or threatened against or affecting Option One before
or
by any court, arbitrator, administrative agency or other governmental authority
reasonably likely to be adversely determined that would materially and adversely
affect the ability of Option One to carry out the transactions contemplated
in
the Pooling and Servicing Agreement;
(iii) No
consent, approval, authorization or order of, or filing or registration with,
any state or federal court or governmental agency or body is required for
the
consummation by Option One of the transactions contemplated herein, except
any
recordation of the assignments of the Mortgage Loans master serviced by Option
One to the Trustee pursuant to the Pooling and Servicing Agreement that have
not
yet been completed; and
(iv) Option
One 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 Option One in its capacities as
originator, sponsor and servicer, and neither (A) the execution or delivery
of
or performance under the Pooling and Servicing Agreement nor (B) the
consummation of any other of the transactions contemplated therein will conflict
with or result in a breach or violation of any term or provision of, or
constitute a default (or an event which with the passing of time or
notification, or both, would constitute a default) under, the certificate
of
incorporation or by-laws of Option One, or, to the knowledge of such counsel,
any indenture or other agreement or instrument to which Option One or any
of its
affiliates is a party or by which it or any of them is bound, or any state
or
federal statute or regulation applicable to Option One or any of its affiliates
or, to the knowledge of such counsel, any order of any state or federal court,
regulatory body, administrative agency or governmental body having jurisdiction
over Option One or any of its affiliates.
In
addition, such counsel shall state that it has no reason to believe that
the
sections of each of the Free Writing Prospectus Supplement and the Final
Prospectus Supplement captioned “The Originator and the Sponsor” and “The
Servicer” as of the date of each of the Free Writing Prospectus Supplement and
the Final Prospectus Supplement, and as of the date that the applicable sections
are amended or supplemented, contained any untrue statement of a material
fact
or omitted to state a material fact necessary to make the statements in such
applicable sections, in the light of the circumstances in which they were
made,
not misleading; it being understood that such counsel need express no opinion
or
belief as to the financial and statistical statements or other financial
data
contained in such sections.
(v) The
conveyance of the Mortgage Loans from the Seller to the Company pursuant
to the
Mortgage Loan Purchase Agreement will be recognized as a “true sale” and certain
other related bankruptcy and insolvency matters;
(vi) Such
other matters as may be reasonably satisfactory to the Underwriters and counsel
for the Underwriters.
(g) The
Underwriters shall receive from Deloitte & Touche llp,
certified public accountants, one or more letters, dated the date on which
each
of the Free Writing Prospectus Supplement and Final Prospectus Supplement
is
dated and printed and satisfactory in form and substance to the Underwriters
and
the Underwriters’ counsel, to the effect that such accountants have performed
certain specified procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature set forth in
the
Free Writing Prospectus Supplement and the Final Prospectus Supplement, as
applicable, under the caption “The Mortgage Loans” agrees with the general
accounting records of the Seller or the Company, as applicable.
(h) The
Underwriters shall have received from each of Standard & Poor’s Ratings
Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., Fitch Ratings, and
▇▇▇▇▇’▇ Investors Service, Inc. (each, a “Rating Agency” and collectively, 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.
(i) The
Underwriters shall have received from counsel for the Trustee a favorable
opinion, dated the Closing Date, in form and substance satisfactory to the
Underwriters and the Underwriters’ counsel, to the effect that the Pooling
Agreement has been duly authorized, executed and delivered by the Trustee
and
constitutes the legal, valid, binding and enforceable agreement of the Trustee,
subject, as to enforceability, to bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors’ rights in general and by
general principles of equity regardless of whether enforcement is considered
in
a proceeding in equity or at law, and as to such other matters as may be
agreed
upon by the Underwriters and the Trustee.
(j) The
Underwriters shall have received such further information, certificates,
documents and opinions as it may reasonably have requested not less than
three
business days prior to the Closing Date.
(k) All
proceedings in connection with the transactions contemplated by this Agreement
and all documents incident hereto shall be satisfactory in form and substance
to
the Underwriters and the Underwriters’ counsel, and the Underwriters and such
counsel shall have received such information, certificates and documents
as it
or they may have reasonably requested.
If
any of
the conditions specified in this Section 8 shall not have been fulfilled
in all
material respects when and as provided in this Agreement, if the Company
is in
breach of any covenants or agreements contained herein or if any of the opinions
and certificates referred to above or elsewhere in this Agreement shall not
be
in all material respects reasonably satisfactory in form and substance to
the
Underwriters and the Underwriters’ counsel, this Agreement and all the
obligations of the Underwriters hereunder may be canceled by the Underwriters
at, or at any time prior to, the Closing Date. Notice of such cancellation
shall
be given to the Company in writing, or by telephone or facsimile transmission
confirmed in writing.
9. Indemnification
and Contribution.
The
Company agrees with the Underwriters that:
(a) The
Company shall indemnify and hold harmless each Underwriter, its respective
officers and directors, and each Person who controls such Underwriter within
the
meaning of either the Securities Act or the Exchange Act against any and
all
losses, claims, expenses, damages or liabilities, joint or several, to which
such Underwriter, its officers, directors or such controlling person may
become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof, including but not
limited
to any loss, claim, expense, damage or liability related to purchases and
sales
of the Offered Certificates) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in the Registration
Statement, either Prospectus, or any amendment or supplement to any of them,
or
the Issuer Information, 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 Company shall not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or omission, or alleged untrue statement or omission, made in any
of
such documents (x) in reliance upon and in conformity with any Underwriters’
Information; or (y) in any Derived Information in any Free Writing Prospectus,
except in the case of clause (y) to the extent that any untrue statement
or
alleged untrue statement or omission therein results from an error or material
omission in the information either in either Prospectus for which the Company
is
responsible or concerning the characteristics of the Mortgage Loans furnished
by
the Company to the Underwriters for use in the preparation of any Free Writing
Prospectus (any such information, the “Pool Information”); provided,
further,
that no
indemnity shall be provided by Company for any error in the Pool Information
that was superseded or corrected by the delivery to the Underwriters of
corrected written or electronic information prior to the confirmation of
the
sale of the Offered Certificates and the Underwriters failed to provide the
corrected information in written or electronic form, or for which the Company
provided written notice of such error to the Underwriters prior to dissemination
by the Underwriters of the Pool Information and the Underwriters disseminated
such uncorrected Pool Information (in each case, 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 Free Writing Prospectus information included in the Final
Prospectus. This indemnity will be in addition to any liability that the
Company
may otherwise have.
(b) Each
Underwriter, severally and not jointly, shall 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 Securities Act or the Exchange Act, against any and all losses,
claims, expenses, damages or liabilities to which the Company or any such
director, officer or controlling person may become subject, under the Securities
Act or otherwise, insofar as such losses, claims, expenses, 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) any Derived Information disseminated by such Underwriter, (ii) any
information, other than Derived Information, the Preliminary Term Sheet or
any
Prospectus, disseminated by such Underwriter and (iii) the Registration
Statement, either 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 clauses (b)(i)
and
(ii) above, only to the extent that such untrue statement or alleged untrue
statement or omission or alleged omission does not result from an error or
material omission in the Pool Information (other than Pool Error), and with
respect to clause (b)(iii) 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
Company or any such director, officer or controlling person in connection
with
investigating, preparing to defend or defending any such loss, claim, expense,
damage, liability or action. This indemnity agreement will be in addition
to any
liability that such Underwriter may otherwise have.
(c) Promptly
after receipt by an indemnified party under this Section 9 of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 9,
notify the indemnifying party in writing of the commencement thereof; but
the
omission so to notify the indemnifying party will not relieve it from any
liability that it may have to any indemnified party otherwise than under
this
Section 9. In case any such action is brought against any indemnified party
and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein, and to the extent that it
may
elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party;
provided,
however,
that if
the defendants in any such action include both the indemnified party and
the
indemnifying party and the indemnified party or parties shall have reasonably
concluded that there may be legal defenses available to it or them and/or
other
indemnified parties that are different from or additional to those available
to
the indemnifying party or there is a conflict or potential conflict between
the
indemnified party and the indemnifying party (in which case the indemnifying
party will not have the right to direct the defense of such action on behalf
of
the indemnified party), the indemnified party or parties shall have the right
to
elect separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party
or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval
by
the indemnified party of counsel, the indemnifying party will not be liable
for
any legal or other expenses subsequently incurred by such indemnified party
in
connection with the defense thereof, unless (i) the indemnified party shall
have
employed separate counsel in connection with the assertion of legal defenses
in
accordance with the proviso to the immediately preceding sentence (it being
understood, however, that the indemnifying party shall not be liable for
the
expenses of more than one separate counsel in addition to local counsel,
approved by the Underwriters in the case of paragraph (a) of this Section
9),
(ii) the indemnifying party shall not have employed counsel satisfactory
to the
indemnified party to represent the indemnified party within a reasonable
time
after notice of commencement of the action or (iii) the indemnifying party
has
authorized the employment of counsel for the indemnified party at the expense
of
the indemnifying party; and except that, if clause (i) or (iii) is applicable,
such liability shall only be in respect of the counsel referred to in such
clause (i) or (iii). Each indemnified party, as a condition of the indemnity
agreements contained in Section 9(a) and (b), shall use its reasonable efforts
to cooperate with the indemnifying party in the defense of any such action
or
claim. No indemnifying party shall be liable for any settlement of any such
action effected without its written consent (which consent shall not be
unreasonably withheld, conditioned or delayed) but if settled with its written
consent, or if there be a final judgment for the plaintiff in any such action,
the indemnifying party agrees to indemnify and hold harmless any indemnified
party from and against any loss or liability (to the extent set forth in
section
9(a) or (b) as applicable) by reason of such settlement or judgment. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened action in respect
of
which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party unless such settlement
(i)
includes an unconditional release of such indemnified party from all liability
on any claims that are the subject of such action and (ii) does not include
a
statement as to, or an admission of, fault, culpability or failure to act
by or
on behalf of an indemnified party.
(d) If
the
indemnification provided for in this Section 9 is unavailable or insufficient
to
hold harmless an indemnified party under this Section 9, then each indemnifying
party shall contribute to the amount paid or payable by such indemnified
party
as a result of the aggregate losses, claims, damages and liabilities referred
to
in paragraph (a) or (b) above, in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and the
Underwriters on the other from the offering of the Offered Certificates.
If,
however, the allocation provided by the immediately preceding sentence is
not
permitted by applicable law, then each indemnifying party shall contribute
to
such amount paid or payable by such indemnified party in such proportion
as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as
any
other relevant equitable considerations. The relative benefits received by
each
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 Underwriters agree that it would not be just
and
equitable if contribution were determined by pro rata allocation or by any
other
method of allocation which does not take account of the equitable considerations
referred to above. The amount paid or payable by an indemnified party as
a
result of the claims (or actions in respect thereof) referred to above shall
be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
claim.
Notwithstanding the provisions of this subsection (d), no Underwriter shall
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 such 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 an Underwriter within the meaning of either the Securities Act or
the
Exchange Act shall have the same rights to contribution as does such Underwriter
and each director of such Underwriter and each officer of such Underwriter
shall
have the same rights to contribution as such Underwriter, and each Person,
if
any, that controls the Company within the meaning of either the Securities
Act
or the Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have the same
rights to contribution as the Company. Any party entitled to contribution
will,
promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution
may
be made against another party or parties under this paragraph (d), notify
such
party or parties from whom contribution may be sought, but the omission to
so
notify such party or parties shall not relieve the party or parties from
whom
contribution may be sought from any other obligation it or they may have
hereunder or otherwise than under this paragraph (d).
10. Termination. (a)
This
Agreement shall be subject to termination in the Underwriters’ absolute
discretion, by notice given to the Company prior to delivery of and payment
for
the Offered Certificates, if, prior to such time, (i) trading of securities
generally on the New York Stock Exchange or the American Stock Exchange 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 the Underwriters’ reasonable judgment, impracticable to market the
Offered Certificates on the terms specified herein or (iv) if any other closing
condition set forth in Section 8 shall not have been fulfilled when required
to
be fulfilled.
(b) If
the
sale of the Offered Certificates shall not be consummated because any condition
to the obligations of the Underwriters set forth in Section 8 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 the Underwriters, the Company shall
reimburse the Underwriters for the reasonable fees and expenses of the
Underwriters’ counsel and for such other out-of-pocket expenses as shall have
been incurred by the Underwriters 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 the Underwriters.
(c) This
Agreement will survive delivery of and payment for the Offered Certificates.
The
provisions of Section 9 and this Section 10(b) and (c) shall survive the
termination or cancellation of this Agreement and shall remain in full force
and
effect, regardless of any investigation made by or on behalf of any of the
Underwriters or any of their controlling persons.
11. No
Advisory or Fiduciary Responsibility.
The
Company acknowledges and agrees that: (i) the purchase and sale of the Offered
Certificates pursuant to this Agreement, including the determination of the
public offering price of the Offered Certificates and any related discounts
and
commissions, is an arm’s-length commercial transaction between the Company and
the Underwriters, and the Company is 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 each Underwriter
is and has been acting solely as a principal and is not the financial advisor,
agent or fiduciary of the Company or its affiliates, stockholders, creditors
or
employees or any other party; (iii) neither Underwriter has assumed or will
assume an advisory, agency or fiduciary responsibility in favor of the Company
with respect to any of the transactions contemplated hereby or the process
leading thereto (irrespective of whether such Underwriter has advised or
is
currently advising the Company on other matters) or any other obligation
to the
Company except the obligations expressly set forth in this Agreement; (iv)
each
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
that neither Underwriter has any obligation to disclose any of such interests
by
virtue of any advisory, agency or fiduciary relationship; and (v) neither
Underwriter has provided any legal, accounting, regulatory or tax advice
with
respect to the offering contemplated hereby and the Company has consulted
its
own legal, accounting, regulatory and tax advisors to the extent they deemed
appropriate.
This
Agreement supersedes all prior agreements and understandings (whether written
or
oral) between the Company and the Underwriters, or any of them, with respect
to
the subject matter hereof. The Company hereby waives and releases, to the
fullest extent permitted by law, any claims that the Company may have against
any of the Underwriters with respect to any breach or alleged breach of agency
or fiduciary duty.
12. Default
by One or More of the Underwriters.
If one
or more of the Underwriters participating in the public offering of the Offered
Certificates shall fail at the Closing Date to purchase the Offered Certificates
which it is (or they are) obligated to purchase hereunder (the “Defaulted
Certificates”), then the non-defaulting Underwriters shall have the right, upon
receiving notice of such a default from the Company, to make arrangements
for
one or more of the non-defaulting Underwriters, or any other underwriters,
to
purchase all, but not less than all, of the Offered Certificates in such
amounts
as may be agreed upon and upon the terms herein set forth. If, however, the
non-defaulting Underwriters have not completed such arrangements within 24
hours
after receiving such notice, then
(i) if
the
aggregate principal amount of Defaulted Certificates does not exceed 10%
of the
aggregate principal amount of the Offered Certificates to be purchased pursuant
to this Agreement, the non-defaulting Underwriters named in this Agreement
shall
be obligated to purchase the full amount thereof in the proportions that
their
respective underwriting obligations hereunder bear to the underwriting
obligations of all such non-defaulting Underwriters; or
(ii) if
the
aggregate principal amount of Defaulted Certificates exceeds 10% of the
aggregate principal amount of the Offered Certificates to be purchased pursuant
to this Agreement, this Agreement shall terminate, without any liability
on the
part of the Depositor or any non-defaulting Underwriters.
No
action
taken pursuant to this Section 13 shall relieve any defaulting Underwriter
from
the liability with respect to any default of such Underwriter under this
Agreement.
In
the
event of a default by any Underwriter as set forth in this Section 13, each
of
the non-defaulting Underwriters and the Depositor shall have the right to
postpone the Closing Date for a period not exceeding five Business Days in
order
that any required changes in the Registration Statement or Final Prospectus
or
in any other documents or arrangements may be effected.
13. Notices.
All
communications hereunder will be in writing and effective only on receipt,
and,
if sent to the Underwriters, will be mailed, delivered or transmitted by
facsimile and confirmed to (i) Greenwich Capital Markets, Inc. at ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention: Legal Department and (ii)
WaMu
Capital Corp., will be mailed, delivered or telecopied to it at WaMu Capital
Corp., ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Compliance,
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇, with a copy to Washington Mutual Legal Department,
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇▇,
Esq.,
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇; and if sent to the Company, will be mailed,
delivered or transmitted by facsimile and confirmed to it at ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention: Legal Department.
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 9, 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 an Underwriter within the meaning of the Securities Act
and
for the benefit of such 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 only sell the Offered Certificates to initial investors
in
minimum total investment amounts of $100,000.
17. Representations,
Warranties and Obligations of GCFP.
GCFP
represents and warrants to the Underwriters that as of the Closing Date,
the
execution, delivery and performance of this Agreement by GCFP does 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 GCFP is a
party,
by which GCFP is bound or to which any of the properties or assets of GCFP
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
GCFP, nor will such actions result in any violation of the provisions of
the
articles of incorporation or by-laws of GCFP or any statute or any order,
rule
or regulation of any court or governmental agency or body having jurisdiction
over GCFP 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 GCFP or its ability to perform its obligations under this
Agreement.
GCFP
agrees with the Underwriters, for the sole and exclusive benefit of each
such
Underwriter, each such Underwriter's officers and directors and each person
controlling such Underwriter within the meaning of the 1933 Act, and not
for the
benefit of any assignee thereof or any other person or persons dealing with
such
Underwriter as follows: in consideration of and as an inducement to their
agreement to purchase the Offered Certificates from the Company, to
unconditionally and irrevocably indemnify and hold harmless each Underwriter
against any failure by the Company to perform its obligations to the
Underwriters hereunder, including, without limitation, any failure by the
Company to honor any obligation to any Underwriter pursuant to Sections 5,
9
and/or 10 hereof. In the case of any claim against GCFP by any Underwriter,
any
officer or director of any Underwriter or any person controlling any
Underwriter, it shall not be necessary for such claimant to first pursue
any
remedy from or exhaust any procedures against the Company.
[Signature
page follows]
If
the
foregoing correctly sets forth the agreement between the Depositor and the
Underwriters, please indicate your acceptance in the space provided for the
purpose below.
|
Very
truly yours,
|
|||||||||||||
|
FINANCIAL
ASSET SECURITIES CORP.
|
|||||||||||||
|
By:
|
|||||||||||||
|
Name:
|
|||||||||||||
|
Title:
|
|||||||||||||
CONFIRMED
AND ACCEPTED, as of the date first above written:
|
GREENWICH
CAPITAL MARKETS, INC.
|
|||||||||||||
|
By:
|
|||||||||||||
|
Name:
|
|||||||||||||
|
Title:
|
|||||||||||||
|
WAMU
CAPITAL CORP.
|
|||||||||||||
|
By:
|
|||||||||||||
|
Name:
|
|||||||||||||
|
Title:
|
|||||||||||||
|
CONFIRMED
AND ACCEPTED for purposes of Section 17, as of the date first above
written:
|
|||||||||||||
|
GREENWICH
CAPITAL FINANCIAL
PRODUCTS,
INC.
|
|||||||||||||
|
By:
|
|||||||||||||
|
Name:
|
|||||||||||||
|
Title:
|
|||||||||||||
SCHEDULE
I
Underwriting
Agreement dated March 7, 2006.
As
used
in this Agreement, the term “Registration Statement” refers to the Registration
Statement on Form S-3, File No. 333-127352.
Closing
Date: March 10, 2006.
Pool
Balance: $1,046,775,421.57.
Cut-Off
Date: March
1,
2006.
Title,
Purchase Price and Description of Offered Certificates:
Financial
Asset Securities Corp., Soundview Home Loan Trust 2006-OPT1
Asset-Backed
Certificates, Series 2006-OPT1, Classes designated below:
|
Class
|
Original
Class Certificate Principal Balance
|
Total
Underwriting Discount & Commissions
|
Pass-Through
Rate
|
S&P
|
▇▇▇▇▇’▇
|
Fitch
|
|
|
Class
I-A-1
|
$
|
464,580,000
|
0.25%
|
Variable
|
AAA
|
AAA
|
Aaa
|
|
Class
II-A-1
|
$
|
168,330,000
|
0.25%
|
Variable
|
AAA
|
AAA
|
Aaa
|
|
Class
II-A-2
|
$
|
82,360,000
|
0.25%
|
Variable
|
AAA
|
AAA
|
Aaa
|
|
Class
II-A-3
|
$
|
85,590,000
|
0.25%
|
Variable
|
AAA
|
AAA
|
Aaa
|
|
Class
II-A-4
|
$
|
26,093,000
|
0.25%
|
Variable
|
AAA
|
AAA
|
Aaa
|
|
Class
M-1
|
$
|
74,844,000
|
0.25%
|
Variable
|
AA
|
AA
|
Aa2
|
|
Class
M-2
|
$
|
19,366,000
|
0.25%
|
Variable
|
AA
|
AA
|
Aa3
|
|
Class
M-3
|
$
|
17,272,000
|
0.25%
|
Variable
|
AA-
|
AA-
|
A1
|
|
Class
M-4
|
$
|
16,748,000
|
0.25%
|
Variable
|
A+
|
A+
|
A2
|
|
Class
M-5
|
$
|
16,225,000
|
0.25%
|
Variable
|
A
|
A-
|
A3
|
|
Class
M-6
|
$
|
14,131,000
|
0.25%
|
Variable
|
BBB+
|
A-
|
Baa1
|
|
Class
M-7
|
$
|
13,085,000
|
0.25%
|
Variable
|
BBB
|
BBB+
|
Baa2
|
|
Class
M-8
|
$
|
9,421,000
|
0.25%
|
Variable
|
BBB-
|
BBB
|
Baa3
|
|
Underwriters
|
||||
|
Class
of Certificates
|
Greenwich
Capital Markets, Inc
|
WaMu
Capital Corp.
|
||
|
I-A-1
|
$
|
418,122,000
|
$
|
46,458,000
|
|
II-A-1
|
$
|
151,497,000
|
$
|
16,833,000
|
|
II-A-2
|
$
|
74,124,000
|
$
|
8,236,000
|
|
II-A-3
|
$
|
77,031,000
|
$
|
8,559,000
|
|
II-A-4
|
$
|
23,483,700
|
$
|
2,609,300
|
|
M-1
|
$
|
67,359,600
|
$
|
7,484,400
|
|
M-2
|
$
|
17,429,400
|
$
|
1,936,600
|
|
M-3
|
$
|
15,544,800
|
$
|
1,727,200
|
|
M-4
|
$
|
15,073,200
|
$
|
1,674,800
|
|
M-5
|
$
|
14,602,500
|
$
|
1,622,500
|
|
M-6
|
$
|
12,717,900
|
$
|
1,413,100
|
|
M-7
|
$
|
11,776,500
|
$
|
1,308,500
|
|
M-8
|
$
|
8,478,900
|
$
|
942,100
|
EXHIBIT
A
Underwriters’
Information:
The
information set forth in the first two sentences under the caption “Method of
Distribution” in each of the Pricing Free Writing Prospectus Supplement and the
Final Prospectus Supplement.
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 underwriters' obligation
to
deliver such securities is subject to the terms and conditions of the
underwriting agreement with the issuer and the availability of the securities
having the characteristics described herein. If, for any reason, the issuer
does
not deliver such securities, the underwriter will notify you, and neither the
issuer nor any underwriter will have any obligation to you to deliver all
or any
portion of the securities which you have committed to purchase, and there
will
be no liability between us as a consequence of the
non-delivery.
For
asset-backed and mortgage-backed securities: Certain of the information
contained herein may be based on numerous assumptions (including preliminary
assumptions about the pool assets and structure), which may not be specifically
identified as assumptions in the information. Any such information or
assumptions are subject to change. The information in this free writing
prospectus may reflect assumptions specifically requested by you. If so,
prior
to the time of your commitment to purchase, you should request updated
information based on any assumptions specifically required by
you.
Any
legends, disclaimers or other notices that may appear below or on any electronic
communication to which this free writing prospectus is attached which state
that
(1) these materials do not constitute an offer (or a solicitation of an offer),
(2) no representation is made as to the accuracy or completeness of these
materials and that these materials may not be updated or (3) these materials
may
be confidential are not applicable to this communication and should be
disregarded. Such legends, disclaimers or other notices have been automatically
generated as a result of this communication having been sent via Bloomberg
or
another system.
EXHIBIT
C
Preliminary
Term Sheet
EXHIBIT
D
Additional
Issuer Information
None