1,659,277,000 (Approximate) Asset-Backed Pass-Through Certificates Argent Securities Inc. Series 2006-M2 August 17, 2006 UNDERWRITING AGREEMENT
EXHIBIT
4.2
$1,659,277,000
(Approximate)
Asset-Backed
Pass-Through Certificates
Argent
Securities Inc.
Series
2006-M2
August
17, 2006
|
▇.▇.
▇▇▇▇▇▇ Securities Inc.
as
Representative of the several Underwriters
▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
|
Ladies
and Gentlemen:
Argent
Securities Inc. (the “Depositor”), a Delaware corporation, has authorized the
issuance and sale of Argent Securities Inc., Asset-Backed Pass-Through
Certificates, Series 2006-M2 (the “Certificates”). The Certificates are
designated as (i) the Class A-1 Certificates, the Class A-2A Certificates,
the
Class A-2B Certificates, the Class A-2C Certificates and the Class A-2D
Certificates (collectively, the “Class A Certificates”) and (ii) the Class M-1
Certificates, the Class M-2 Certificates, the Class M-3 Certificates, the Class
M-4 Certificates, the Class M-5 Certificates, the Class M-6 Certificates, the
Class M-7 Certificates, the Class M-8 Certificates, the Class M-9 Certificates
and the Class M-10 Certificates (collectively, the “Offered Mezzanine
Certificates”; together with the Class A Certificates, the “Underwritten
Certificates”). Also to be issued are the Class M-11 Certificates, the Class CE
Certificates, the Class P Certificates, the Class R Certificates and the Class
R-X Certificates (collectively, the “Non-Offered Certificates”). The
Underwritten Certificates and the Non-Offered Certificates are referred to
together as the “Certificates.”
Only
the
Underwritten Certificates are being purchased by the underwriters named in
Schedule A hereto (the “Underwriters”), and the Underwriters severally are
purchasing only the Underwritten Certificates set forth opposite their names
in
Schedule A, except that the amounts purchased by the Underwriters may change
in
accordance with Section 10 of this Agreement. ▇.▇. ▇▇▇▇▇▇ Securities Inc. is
acting as representative of the several Underwriters and, in such capacity,
is
hereinafter referred to as the “Representative.” If only one underwriter is
named in Schedule A, the terms “Underwriter,” “Underwriters” and
“Representative” shall refer to that named underwriter.
The
Certificates will be issued under a Pooling and Servicing Agreement, dated
as of
August 1, 2006 (the “Pooling and Servicing Agreement”), among the Depositor as
depositor, Ameriquest Mortgage Company as master servicer (in such capacity,
the
“Master Servicer”) and Deutsche Bank National Trust Company as trustee (in such
capacity, the “Trustee”). Capitalized but undefined terms shall have the
meanings set forth in the Pooling and Servicing Agreement.
The
Certificates will evidence fractional undivided interests in the Trust (the
“Trust”) formed pursuant to the Pooling and Servicing Agreement. The assets of
the Trust will include, among other things, a segregated pool (the “Mortgage
Pool”) of certain adjustable-rate and fixed-rate, conventional, one- to
four-family residential mortgage loans (collectively, the “Mortgage Loans”), the
Master Servicer Prepayment Charge Payment Amounts, the Net WAC Rate Carryover
Reserve Account and the Swap Account (including any payments made under the
Swap
Administration Agreement deposited in the Trust) and such amounts as may be
held
by the Trustee in any other accounts held by the Trustee for the Trust. A form
of the Pooling and Servicing Agreement has been filed as an exhibit to the
Registration Statement.
The
Underwritten Certificates are more fully described in a Registration Statement
which the Depositor has furnished to the Underwriters.
Pursuant
to the Mortgage Loan Purchase Agreement, dated the date of this Agreement (the
“Mortgage Loan Purchase Agreement”), between Ameriquest Mortgage Company (in
such capacity, the “Seller”) and the Depositor, the Seller will sell to the
Depositor all of its right, title and interest in and to the Mortgage Loans,
including the scheduled principal balances of the Mortgage Loans as of the
Cut-off Date and interest due after the Cut-off Date. Pursuant to the Pooling
and Servicing Agreement, the Depositor will sell to the Trust all of its right,
title and interest in and to the Mortgage Loans, including the scheduled
principal balances of the Mortgage Loans as of the Cut-off Date and interest
due
after the Cut-off Date.
SECTION
1. Representations
and Warranties of the Depositor.
The
Depositor represents and warrants to, and agrees with the Underwriters that
as
of the date of the Preliminary Prospectus, as of the date of the Prospectus,
and
as of the Closing Date:
(a) A
Registration Statement on Form S-3 (No. 333-131895) relating to the Underwritten
Certificates has (i) been prepared by the Depositor in conformity with the
requirements of the Securities Act of 1933, as amended (the “Securities Act”),
and the rules and regulations (the “Rules and Regulations”) of the United States
Securities and Exchange Commission (the “Commission”) thereunder, (ii) been
filed with the Commission under the Securities Act and (iii) become effective
and is still effective as of the date hereof under the Securities Act. Copies
of
such Registration Statement have been delivered by the Depositor to the
Underwriters. As used in this Agreement, “Effective Time” means the date and the
time as of which such Registration Statement, or the most recent post-effective
amendment thereto, if any, was declared effective by the Commission; “Effective
Date” means the date of the Effective Time; “Registration Statement” means such
registration statement, at the Effective Time, including any documents
incorporated by reference therein at such time; “Base Prospectus” means such
final prospectus dated March 31, 2006 and “Prospectus Supplement” means the
final prospectus supplement relating to the Underwritten Certificates, to be
filed with the Commission pursuant to paragraph (2), (3) or (5) of Rule 424(b)
of the Rules and Regulations. “Prospectus” means the Base Prospectus together
with the Prospectus Supplement. The Depositor has prepared a Free Writing
Prospectus, dated August 15, 2006, that contains substantially all information
that will appear in the Prospectus Supplement and including the Static Pool
Information referred to in the Free Writing Prospectus, to the extent that
such
information is known at that time (such Free Writing Prospectus together with
the Base Prospectus, the “Preliminary Prospectus”). Reference made herein to the
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include
any documents incorporated by reference therein pursuant to Item 12 of Form
S-3
under the Securities Act, as of the date of the Prospectus and any reference
to
any amendment or supplement to the Preliminary Prospectus or the 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
Preliminary Prospectus or the Prospectus, as applicable, and incorporated by
reference in the Preliminary Prospectus or the Prospectus, as applicable, and
any reference to any amendment to the Registration Statement shall be deemed
to
include any report of the Depositor filed with the Commission pursuant to
Section 13(a) or 15(d) of the Exchange Act after the Effective Time that is
incorporated by reference in the Registration Statement. The Commission has
not
issued any order preventing or suspending the use of the Prospectus or the
Preliminary Prospectus or the effectiveness of the Registration Statement and
no
proceedings for such purpose are pending or, to the Depositor’s knowledge,
threatened by the Commission. There are no contracts or documents of the
Depositor which are required to be filed as exhibits to the Registration
Statement pursuant to the Securities Act or the Rules and Regulations which
have
not been so filed or incorporated by reference therein on or prior to the
Effective Date of the Registration Statement other than such documents or
materials, if any, as any Underwriter delivers to the Depositor pursuant to
Section 5 hereof for filing on Form 8-K. The conditions for use of Form S-3,
as
set forth in the General Instructions thereto, have been satisfied.
(b) The
Registration Statement, the Preliminary Prospectus, the Prospectus and the
Static Pool Information conform, and any further amendments or supplements
to
the Registration Statement, the Preliminary Prospectus and the Prospectus will
conform, when they become effective, are filed with the Commission or as of
the
date of the Contract of Sale, as the case may be, in all respects to the
requirements of the Securities Act and the Rules and Regulations. The
Registration Statement, as of the Effective Date thereof, and any amendment
thereto, did not contain an untrue statement of a material fact or omit to
state
a material fact required to be stated therein or necessary to make the
statements therein not misleading. The Preliminary Prospectus, as amended or
supplemented, as of its date and as of the date of the Contract of Sale, and
the
Prospectus, as amended or supplemented, as of its date and as of the Closing
Date, and the Static Pool Information, as of the date of the Contract of Sale
and as of the Closing Date, do not and will not contain any untrue statement
of
a material fact or omit to state a material fact necessary in order to make
the
statements therein, in light of the circumstances under which they were made,
not misleading; provided that no representation or warranty is made as to (i)
information contained in or omitted from the Registration Statement, the
Preliminary Prospectus or the Prospectus in reliance upon and in conformity
with
written information furnished to the Depositor in writing by any Underwriter
through the Representative expressly for use therein as set forth in Exhibit
A
hereto (the “Underwriters’ Information”), and (ii) any Excluded Information (as
defined in Section 8(a)(i) below).
(c) The
documents incorporated by reference in the Preliminary Prospectus or the
Prospectus, as applicable, when they became effective, were filed with the
Commission or as of the date of the Contract of Sale, as the case may be,
conformed in all material respects to the requirements of the Securities Act
or
the Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder; and any further documents so filed and incorporated by reference
in
the Prospectus, when such documents become effective, are filed with the
Commission or as of the date of the Contract of Sale, as the case may be, will
conform in all material respects to the requirements of the Securities Act
or
the Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder.
(d) The
Depositor has been duly incorporated and is validly existing as a corporation
in
good standing under the laws of its jurisdiction of incorporation and is in
good
standing as a foreign corporation in each jurisdiction in which its ownership
or
lease of property or the conduct of its business so requires such standing.
The
Depositor has all power and authority necessary to own or hold its properties,
to conduct the business in which it is engaged and to enter into and perform
its
obligations under this Agreement, the Mortgage Loan Purchase Agreement and
the
Pooling and Servicing Agreement (collectively, the “Agreements”) and to cause
the Certificates to be issued.
(e) Except
as
disclosed in the Preliminary Prospectus and the Prospectus, there are no
actions, proceedings or investigations pending with respect to which the
Depositor has received service of process before, or, to the best of the
Depositor’s knowledge, threatened, by any court, administrative agency or other
tribunal to which the Depositor is a party or of which any of its properties
is
the subject (a) which if determined adversely to the Depositor would have a
material adverse effect on the business or financial condition of the Depositor,
(b) asserting the invalidity of any of the Agreements or the Certificates,
(c)
seeking to prevent the issuance of the Certificates or the consummation by
the
Depositor of any of the transactions contemplated by any of the Agreements
or
(d) which might materially and adversely affect the performance by the Depositor
of its obligations under, or the validity or enforceability of any of the
Agreements or the Certificates.
(f) This
Agreement has been, and the other Agreements when executed and delivered as
contemplated hereby and thereby will have been, duly authorized, executed and
delivered by the Depositor, and this Agreement constitutes, and the other
Agreements when executed and delivered as contemplated herein will constitute,
legal, valid and binding instruments enforceable against the Depositor in
accordance with their respective terms, subject as to enforceability to (x)
applicable bankruptcy, reorganization, insolvency, moratorium or other similar
laws affecting creditors’ rights generally, (y) general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or at
law), and (z) with respect to rights of indemnity under any of the Agreements,
limitations of public policy under applicable securities laws.
(g) The
execution, delivery and performance of the Agreements by the Depositor and
the
consummation of the transactions contemplated hereby and thereby, and the
issuance and delivery of the Certificates do not and will not conflict with
or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Depositor is a party,
by
which the Depositor is bound or to which any of the properties or assets of
the
Depositor or any of its subsidiaries is subject, which breach or violation
would
have a material adverse effect on the business, operations or financial
condition of the Depositor or its ability to perform its obligations under
any
of the Agreements, nor will such actions result in any violation of the
provisions of the articles of incorporation or by-laws of the Depositor or
any
statute or any order, rule or regulation of any court or governmental agency
or
body having jurisdiction over the Depositor or any of its properties or assets,
which breach or violation would have a material adverse effect on the business,
operations or financial condition of the Depositor or its ability to perform
its
obligations under any of the Agreements.
(h) The
direction by the Depositor to the Trustee to execute, authenticate, issue and
deliver the Certificates has been duly authorized by the Depositor, and,
assuming the Trustee has been duly authorized to undertake such actions, when
executed, authenticated, issued and delivered by the Trustee, in accordance
with
the Pooling and Servicing Agreement, the Certificates will be validly issued
and
outstanding and the holders of the Certificates will be entitled to the rights
and benefits of the Certificates as provided by the Pooling and Servicing
Agreement.
(i) No
consent, approval, authorization, order, registration or qualification of or
with any court or governmental agency or body of the United States is required
for the issuance of the Certificates and the sale of the Underwritten
Certificates to the Underwriters, or the consummation by the Depositor of the
other transactions contemplated by the Agreements except such consents,
approvals, authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the purchase and
distribution of the Underwritten Certificates by the Underwriters or as have
been obtained.
(j) At
the
time of the execution and delivery of the Pooling and Servicing Agreement,
the
Depositor will: (i) have equitable title to the Mortgage Loans conveyed by
the
Seller, free and clear of any lien, mortgage, pledge, charge, encumbrance,
adverse claim or other security interest (collectively, “Liens”); (ii) not have
assigned to any person (other than the Trustee) any of its right, title or
interest in the Mortgage Loans and (iii) have the power and authority to sell
the Mortgage Loans to the Trustee and to sell the Underwritten Certificates
to
the Underwriters. Upon execution and delivery of the Pooling and Servicing
Agreement by the Trustee, the Trustee will have acquired beneficial ownership
of
all of the Depositor’s right, title and interest in and to the Mortgage Loans.
Upon delivery to the Underwriters of the Underwritten Certificates, the
Underwriters will have good title to the Underwritten Certificates free of
any
Liens.
(k) As
of the
Cut-off Date, each of the Mortgage Loans will meet the eligibility criteria
described in the Preliminary Prospectus and the Prospectus and will conform
to
the descriptions thereof contained in the Preliminary Prospectus and the
Prospectus.
(l) Neither
the Depositor nor the Trust is an “investment company” within the meaning of
such term under the Investment Company Act of 1940, as amended (the “1940 Act”)
and the rules and regulations of the Commission thereunder.
(m) At
the
Closing Date, the Underwritten Certificates and the Pooling and Servicing
Agreement will conform in all material respects to the descriptions thereof
contained in the Preliminary Prospectus and the Prospectus.
(n) Any
taxes, fees and other governmental charges in connection with the execution,
delivery and issuance of the Agreements and the Certificates have been paid
or
will be paid at or prior to the Closing Date.
(o) Since
the
respective dates as of which information is given in the Preliminary Prospectus
and the Prospectus, there has not been any material adverse change in the
general affairs, management, financial condition, or results of operations
of
the Depositor or Seller, otherwise than as set forth or contemplated in the
Prospectus as supplemented or amended as of the Closing Date.
(p) As
of the
Effective Date and as of the date of the Contract of Sale, the Depositor is
not
and will not be as of the Closing Date an “ineligible issuer” as defined in Rule
405 under the Securities Act.
(q) Any
certificate signed by an officer of the Depositor and delivered to the
Underwriters or counsel for the Underwriters in connection with an offering
of
the Underwritten Certificates shall be deemed, and shall state that it is,
a
representation and warranty as to the matters covered thereby to each person
to
whom the representations and warranties in this Section 1 are made.
(r) As
of the
date of the Contract of Sale, each Issuer Free Writing Prospectus and the
Preliminary Prospectus, considered together, did not include any untrue
statement of a material fact or omission of any material fact necessary in
order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
SECTION
2. Purchase
and Sale.
The
several commitments of the Underwriters to purchase the Underwritten
Certificates pursuant to this Agreement shall be deemed to have been made on
the
basis of the representations and warranties herein contained and shall be
subject to the terms and conditions herein set forth. The Depositor agrees
to
instruct the Trustee to issue the Certificates and agrees to sell to each
Underwriter, and each Underwriter agrees (except as provided in Section 10
hereof) severally and not jointly to purchase from the Depositor, the aggregate
principal amounts or percentage interests of the Underwritten Certificates
of
each Class, as set forth opposite such Underwriter’s name on Schedule A, at the
purchase price or prices set forth on Schedule A.
SECTION
3. Delivery
and Payment.
Delivery of and payment for the Underwritten Certificates shall be made at
the
offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, Two World Financial Center, New
York, New York 10281, or at such other place as shall be agreed upon by the
Underwriters and the Depositor at 10:00 A.M. New York City time on August 29,
2006, or at such other time or date as shall be agreed upon in writing by the
Underwriters and the Depositor (such date being referred to as the “Closing
Date”). Payment shall be made to the Depositor by wire transfer of same day
funds payable to the account of the Depositor. Delivery of the Underwritten
Certificates shall be made to the Representative for the accounts of the several
Underwriters against payment of the purchase price thereof. The Underwritten
Certificates so delivered will be initially represented by one or more
certificates registered in the name of Cede & Co., the nominee of The
Depository Trust Company (“DTC”). The interests of the beneficial owners of the
Underwritten Certificates will be represented by book entries on the records
of
DTC and participating members thereof. Definitive Underwritten Certificates
will
be available only under the limited circumstances specified in the Pooling
and
Servicing Agreement.
SECTION
4. Offering
by the Underwriters.
It is
understood that, subject to the terms and conditions hereof, the several
Underwriters propose to offer the Underwritten Certificates for sale to the
public as set forth in the Prospectus.
SECTION
5. Agreements.
(a) The
Depositor agrees as follows:
| (i) |
To
prepare the Preliminary Prospectus and the Prospectus in a form approved
by the Underwriters; to file such Preliminary Prospectus pursuant
to Rule
433(d) under the Securities Act not later than the same day on which
the
Preliminary Prospectus was made available to the Underwriters; to
file
such Prospectus pursuant to Rule 424(b) under the Securities Act
not later
than the second Business Day following the day on which the Prospectus
was
made available to the Underwriters; to make no further amendment
or
supplement to the Registration Statement or to the Prospectus prior
to the
Closing Date except as permitted herein; to advise the Underwriters,
promptly after it receives notice thereof, of the time when any amendment
to the Registration Statement has been filed or becomes effective
prior to
the termination of the offering of the Underwritten Certificates
or any
supplement to the Prospectus or any amended Prospectus has been filed
and
to furnish the Underwriters or their counsel with copies thereof
without
charge; to file promptly all reports and any definitive proxy or
information statements required to be filed by the Depositor with
the
Commission pursuant to Section 13(a), 13(c), 14 or l5(d) of the Exchange
Act subsequent to the date of the Prospectus and, for so long as
the
delivery of a prospectus is required in connection with the offering
or
sale of the Underwritten Certificates; to promptly advise the Underwriters
of its receipt of notice of the issuance by the Commission of any
stop
order or the institution of or, to the knowledge of the Depositor,
the
threatening of any proceeding for such purpose, or of: (i) any order
preventing or suspending the use of the Preliminary Prospectus or
the
Prospectus; (ii) the suspension of the qualification of the Underwritten
Certificates for offering or sale in any jurisdiction; (iii) the
initiation of or threat of any proceeding for any such purpose or
(iv) any
request by the Commission for the amending or supplementing of the
Registration Statement, the Preliminary Prospectus or the Prospectus
or
for additional information. In the event of the issuance of any stop
order
or of any order preventing or suspending the use of the Preliminary
Prospectus or the Prospectus or suspending any such qualification,
the
Depositor promptly shall use its best efforts to obtain the withdrawal
of
such order by the Commission.
|
| (ii) |
To
furnish promptly to the Underwriters and to counsel for the Underwriters
a
signed copy of the Registration Statement as originally filed with
the
Commission, and of each amendment thereto filed with the Commission,
including all consents and exhibits filed
therewith.
|
| (iii) |
To
deliver promptly to the Underwriters without charge such number of
the
following documents as the Underwriters shall reasonably request:
(i)
conformed copies of the Registration Statement as originally filed
with
the Commission and each amendment thereto (in each case including
exhibits); (ii) the Preliminary Prospectus, the Prospectus and any
amended
or supplemented Preliminary Prospectus or Prospectus and (iii) any
document incorporated by reference in the Preliminary Prospectus
or the
Prospectus (including exhibits thereto). If the delivery of a prospectus
is required at any time prior to the expiration of nine months after
the
Closing Date in connection with the offering or sale of the Underwritten
Certificates, and if at such time any events shall have occurred
as a
result of which the Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state
any
material fact necessary in order to make the statements therein,
in light
of the circumstances under which they were made when such Prospectus
is
delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus
or
to file under the Exchange Act any document incorporated by reference
in
the Prospectus in order to comply with the Securities Act or the
Exchange
Act, the Depositor shall notify the Underwriters and, upon any
Underwriter’s request, shall file such document and prepare and furnish
without charge to the Underwriters and to any dealer in securities
as many
copies as the Underwriters may from time to time reasonably request
of an
amended Prospectus or a supplement to the Prospectus which corrects
such
statement or omission or effects such compliance, and in case the
Underwriters are required to deliver a Prospectus in connection with
sales
of any of the Underwritten Certificates at any time nine months or
more
after the Effective Time, upon the request of the Underwriters but
at
their expense, the Depositor shall prepare and deliver to the Underwriters
as many copies as the Underwriters may reasonably request of an amended
or
supplemented Prospectus complying with Section 10(a)(3) of the Securities
Act.
|
| (iv) |
To
file promptly with the Commission any amendment to the Registration
Statement, the Preliminary Prospectus or the Prospectus or any supplement
to the Prospectus that may, in the judgment of the Depositor or the
Underwriters, be required by the Securities Act or requested by the
Commission. Neither the Underwriters’ consent to nor their distribution of
any amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 6.
|
| (v) |
To
furnish the Underwriters and counsel for the Underwriters, prior
to filing
with the Commission, and to obtain the consent of the Underwriters
for the
filing of the following documents relating to the Underwritten
Certificates: (i) any Post-Effective Amendment to the Registration
Statement or supplement to the Prospectus, or document incorporated
by
reference in the Prospectus or (ii) the Preliminary Prospectus and
the
Prospectus pursuant to the Rules and
Regulations.
|
| (vi) |
To
use commercially reasonable efforts, in cooperation with the Underwriters,
to qualify the Underwritten Certificates for offering and sale under
the
applicable securities laws of such states and other jurisdictions
of the
United States or elsewhere as the Underwriters may reasonably designate,
and maintain or cause to be maintained such qualifications in effect
for
as long as may be required for the distribution of the Underwritten
Certificates. The Depositor will file or cause the filing of such
statements and reports as may be required by the laws of each jurisdiction
in which the Underwritten Certificates have been so qualified; provided,
however, that the Depositor shall not be required to qualify to do
business in any jurisdiction where it is not now so qualified or
to take
any action which would subject it to general or unlimited service
of
process in any jurisdiction where it is now so
subject.
|
| (vii) |
So
long as the Underwritten Certificates shall be outstanding, the Depositor
shall cause the Trustee, pursuant to the Pooling and Servicing Agreement,
to deliver to the Underwriters as soon as such statements are furnished
to
the Trustee: (i) the annual assessment of compliance delivered to
the
Trustee pursuant to Section 3.20 of the Pooling and Servicing Agreement;
(ii) the annual attestation of a firm of registered public accountants
furnished to the Trustee pursuant to Section 3.20 of the Pooling
and
Servicing Agreement; (iii) the monthly servicing report furnished
to the
Trustee and (iv) the monthly reports furnished to the Certificateholders
pursuant to Section 4.02 of the Pooling and Servicing
Agreement.
|
| (viii) |
Unless
the Underwriters shall otherwise have given their written consent,
no
collateralized mortgage obligations or other similar securities
representing interests in or secured by other mortgage-related assets
originated or owned by the Seller shall be publicly offered or sold,
nor
shall the Seller enter into any contractual arrangements that contemplate
the public offering or sale of such securities, until the earlier
to occur
of the termination of the syndicate or the Closing
Date.
|
| (ix) |
In
connection with any transaction contemplated by this Agreement, the
Depositor and each of its affiliates maintain customary, arm’s-length
business relationships with each Underwriter and each of its affiliates,
and no fiduciary duty on the part of any Underwriter or any of its
affiliates is thereby or hereby intended or created, and the express
disclaimer of any such fiduciary relationship on the part of each
Underwriter and each of its affiliates is hereby acknowledged and
accepted
by the Depositor and each of its
affiliates.
|
| (x) |
The
Depositor will file or cause to be filed with the Commission such
Free
Writing Prospectus that is either an Issuer Free Writing Prospectus
(as
defined in Section 5(c) hereof) or contains Issuer Information as
soon as
reasonably practicable after the date of this Agreement, but in any
event,
not later than required pursuant to Rules 426 or 433, respectively,
of the
Securities Act.
|
| (xi) |
The
Depositor shall not be required to file (A) any Free Writing Prospectus,
if the information included therein is included or incorporated by
reference in a prospectus or Free Writing Prospectus previously filed
with
the Commission that relates to the offering of the Certificates,
or (B)
any Free Writing Prospectus or portion thereof that contains a description
of the Certificates or the offering of the Certificates which does
not
reflect the final terms thereof (so long as such information does
not
contain any Issuer Information).
|
| (xii) |
The
Depositor will (i) prepare and file the report required by Item 6.05
of
Form 8-K within four business days after the Closing Date if any
material
pool characteristic in the final pool at the Closing Date varies
by 5% or
more from the description in the Prospectus Supplement, (ii) comply
with
required Form 8-K reporting requirements with respect to any prefunding
account and (iii) if static pool information required with respect
to the
Underwritten Certificates is delivered via website, comply with the
Rules
and Regulations. The Depositor will be responsible for calculating
the
significance percentage of any derivative contract with respect to
the
Underwritten Certificates.
|
(b)
Each
Underwriter severally represents, warrants, covenants and agrees with the
Depositor as to itself that:
| (i) |
The
Underwriters hereby authorize the Representative to execute on behalf
of
all the Underwriters, each of (a) a letter to the Depositor concerning
registration and denomination instructions for the Underwritten
Certificates purchased by the Underwriters, (b) the Cross Receipt
relating
to the Depositor’s receipt of the proceeds from the sale of the
Underwritten Certificates and (c) the original issue discount pricing
letter.
|
| (ii) |
Prior
to entering into any Contract of Sale, the Underwriter shall convey
the
Preliminary Prospectus to each prospective investor. The Underwriter
shall
keep sufficient records to document its conveyance of the Preliminary
Prospectus to each potential investor prior to the related Contract
of
Sale.
|
| (iii) |
Unless
preceded or accompanied by a prospectus satisfying the requirements
of
Section 10(a) of the Securities Act, the Underwriter shall not convey
or
deliver any written communication to any person in connection with
the
initial offering
of the Certificates,
unless such written communication (1) is made in reliance on Rule
134
under the Securities Act, (2) constitutes a prospectus satisfying
the
requirements of Rule 430B under the Securities Act or (3) is a Free
Writing Prospectus.
|
| (iv) |
An
Underwriter may convey a Preliminary Term Sheet to a potential investor
prior to entering into a Contract of Sale with such investor; provided,
however, that (x) such Underwriter shall not enter into a Contract
of Sale
with such investor unless the Underwriter has complied with paragraph
(i)
above prior to such Contract of Sale, (y) such Underwriter shall
deliver a
copy of the proposed Preliminary Term Sheet to the Depositor and
its
counsel prior to the anticipated first use and shall not convey any
such
Preliminary Term Sheet to which the Depositor or its counsel reasonably
objects.
|
| (v) |
An
Underwriter may convey Computational Materials (x) to a potential
investor
prior to entering into a Contract of Sale with such investor; provided,
however, that (A) such Underwriter shall not enter into a Contract
of Sale
with such investor unless the Underwriter has complied with paragraph
(i)
above prior to such Contract of Sale and (B) such Computational Materials
shall not be disseminated in a manner reasonably designed to lead
to their
broad unrestricted dissemination; provided, however, that if such
Computational Materials are disseminated in a manner reasonably designed
to lead to its broad unrestricted dissemination, such Underwriter
shall
file with the Commission such Computational Materials, and (y) to
an
investor after a Contract of Sale, provided that the Underwriter
has
complied with paragraph (i) above in connection with such Contract
of
Sale. The Underwriter shall keep sufficient records of any conveyance
of
Computational Materials to potential or actual investors and shall
maintain such records as required by the Rules and
Regulations.
|
| (vi) |
If
an Underwriter does not furnish a Free Writing Prospectus that is
required
to be filed under the Securities Act to the Depositor’s counsel prior to
the scheduled print date of the Prospectus Supplement, such Underwriter
will be deemed to have represented that it did not convey any such
Free
Writing Prospectus to any potential
investor.
|
| (vii) |
Each
Free Writing Prospectus shall contain legends substantially similar
to the
following or such other legends required by applicable law as determined
by the Underwriters:
|
The
depositor has filed a registration statement (including a prospectus) with
the
SEC for the offering to which this free writing prospectus relates. Before
you
invest, you should read the prospectus in that registration statement and other
documents the depositor has filed with the SEC for more complete information
about the depositor and this offering. You may get these documents for free
by
visiting ▇▇▇▇▇ on the SEC Web site at ▇▇▇.▇▇▇.▇▇▇.
Alternatively, the depositor, any underwriter or any dealer participating in
the
offering will arrange to send you the prospectus if you request it by calling
toll-free 1-8[zz-zzz-zzzz].
This
free
writing prospectus does not contain all information that is required to be
included in the base prospectus and the prospectus supplement.
The
information in this free writing prospectus supersedes information contained
in
any prior similar free writing prospectus relating to these securities prior
to
the time of your commitment to purchase.
The
asset-backed securities referred to in this free writing prospectus are being
offered when, as and if issued. In particular, you are advised that asset-backed
securities, and the asset pools backing them, are subject to modification or
revision (including, among other things, the possibility that one or more
classes of securities may be split, combined or eliminated), at any time prior
to issuance or availability of a final prospectus. As a result, you may commit
to purchase securities that have characteristics that may change, and you are
advised that all or a portion of the securities may not be issued that have
the
characteristics described in this free writing prospectus. Our obligation to
sell securities to you is conditioned on the securities having the
characteristics described in this free writing prospectus. If that condition
is
not satisfied, we will notify you, and neither the issuer nor [the] [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.
This
free
writing prospectus is being delivered to you solely to provide you with
information about the offering of the asset-backed securities referred to in
this free writing prospectus and to solicit an indication of your interest
in
purchasing such securities, when, as and if issued. Any such indication of
interest will not constitute a contractual commitment by you to purchase any
of
the securities.
| (viii) |
Any
Computational Materials shall include legends, in addition to those
specified in paragraph (vi) above, substantially similar to the following
or such other legends required by applicable law as determined by
the
Underwriters:
|
The
information in this free writing prospectus may be based on preliminary
assumptions about the pool assets and the structure. Any such assumptions are
subject to change.
The
information in this free writing prospectus may reflect parameters, metrics
or
scenarios specifically requested by you. If so, prior to the time of your
commitment to purchase, you should request updated information based on any
parameters, metrics or scenarios specifically required by you.
Neither
the depositor nor any of its affiliates prepared, provided, approved or verified
any statistical or numerical information presented in this free writing
prospectus, although that information may be based in part on loan level data
provided by the depositor or its affiliates.
| (ix) |
On
or before the Closing Date, the Representative shall execute and
deliver
to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Wood LLP a copy of an original issue discount
pricing letter, provided to the Representative by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
&
▇▇▇▇ LLP.
|
| (x) |
Each
Underwriter severally agrees to retain all Free Writing Prospectuses
that
it has used and that are not required to be filed pursuant to this
Section
5 for a period of three years following the initial bona fide offering
of
the Offered Certificates.
|
(c) The
following terms shall have the meanings set forth below, unless the context
clearly indicates otherwise:
Computational
Materials:
Any
Free Writing Prospectus prepared by the Underwriter that contains only (i)
information specified in paragraph (5) of the definition of ABS Informational
and Computational Materials in Item 1101(a) of Regulation AB or (ii) information
that is not Issuer Information.
Contract
of Sale:
The
meaning set forth in Rule 159 under the Securities Act.
Derived
Information:
Such
information, if any, in any Free Writing Prospectus prepared by any Underwriter
that is not contained in either (i) the Registration Statement, the Base
Prospectus, the Preliminary Prospectus or the Prospectus or amendments or
supplements thereto, taking into account information incorporated therein by
reference or (ii) any Pool Information.
Free
Writing Prospectus:
A
“written communication” within the meaning of Rule 405 under the Securities Act
that describes the Certificates and/or the Mortgage Loans.
Issuer
Information:
Such
information as defined in Rule 433(h) under the Securities Act and
which
shall not include (i) information that is merely based on or derived from such
information or (ii) any Excluded Information.
Issuer
Free Writing Prospectus:
The
meaning set forth in Rule 405 of the Securities Act except that (i)
Computational Materials shall not be an Issuer Free Writing Prospectus; (ii)
any
Free Writing Prospectus or portion thereof prepared by or on behalf of an
Underwriter that includes any Issuer Information that is not approved by the
Depositor for use therein shall not be an Issuer Free Writing Prospectus and
(iii) no Free Writing Prospectus shall be deemed to be prepared by an
Underwriter on behalf of the Depositor if such Free Writing Prospectus is not
delivered to the Depositor prior to first use in accordance with Section
5(b)(vi) hereof.
Preliminary
Term Sheet:
A Free
Writing Prospectus that contains information described in paragraphs (1) -
(3)
of the definition of ABS Informational and Computational Materials in Item
1101(a) of Regulation AB but which does not include Derived
Information.
Static
Pool Information:
Such
information as described in Item 1105 of Regulation AB, whether or not such
information is incorporated into the Registration Statement or the
Prospectus.
(d) (i)
In
the event that any Underwriter or the Depositor becomes aware that, as of the
time of the Contract of Sale, any Free Writing Prospectus prepared by or on
behalf of the Underwriter and delivered to a purchaser of an Offered Certificate
contained any untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements contained therein, in light
of
the circumstances under which they were made, not misleading (such Free Writing
Prospectus, a “Defective
Free Writing Prospectus”),
the
Underwriter or the Depositor shall notify the other parties to this Agreement
thereof within one business day after discovery.
(ii)
The
party responsible for the information to be corrected, if requested by the
Depositor or an Underwriter, as appropriate, shall prepare a Free Writing
Prospectus with Corrective Information that corrects the material misstatement
in or omission from the Defective Free Writing Prospectus (such corrected Free
Writing Prospectus, a “Corrected
Free Writing Prospectus”).
(iii)
The
Underwriters shall deliver the Corrected Free Writing Prospectus to each
purchaser of an Offered Certificate which received the Defective Free Writing
Prospectus prior to entering into an agreement to purchase any Offered
Certificates.
(iv)
The
Underwriters shall notify such purchaser in a prominent fashion that the prior
agreement to purchase Offered Certificates has been terminated, and of such
purchaser’s rights as a result of termination of such agreement.
(v)
The
Underwriters shall provide such purchaser with an opportunity to affirmatively
agree to purchase such Offered Certificates on the terms described in the
Corrected Free Writing Prospectus.
(e) Each
Underwriter covenants with the Depositor that after the final Prospectus is
available the Underwriter shall not distribute any written information
concerning the Offered Certificates to a prospective purchaser of Offered
Certificates unless such information is preceded or accompanied by the final
Prospectus.
SECTION
6. Conditions
to the Underwriters’ Obligation.
The
several obligations of the Underwriters hereunder to purchase the Underwritten
Certificates pursuant to this Agreement are subject to the following conditions
as of the Closing Date:
(a) Each
of
the obligations of the Depositor required to be performed by it on or prior
to
the Closing Date pursuant to the terms of the Agreements shall have been duly
performed and complied with and all of the representations and warranties of
the
Depositor under any of the Agreements shall be true and correct as of the
Closing Date and no event shall have occurred which, with notice or the passage
of time, would constitute a default under any of the Agreements, and the
Underwriters shall have received certificates to the effect of the foregoing,
each signed by an authorized officer of the Depositor.
(b) Prior
to
the Closing Date, (i) the Depositor shall have received confirmation of the
effectiveness of the Registration Statement and (ii) no stop order suspending
the effectiveness of the Registration Statement shall have been issued and
no
proceedings for that purpose shall have been instituted or, to the knowledge
of
the Depositor, shall be contemplated by the Commission. Any request of the
Commission for inclusion of additional information in the Registration Statement
or the Prospectus shall have been complied with.
(c) The
Mortgage Loans will be acceptable to the following rating agencies (each, a
“Rating Agency”): Fitch Ratings (“Fitch”), Standard & Poor’s Ratings
Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies Inc. (“S&P”) and ▇▇▇▇▇’▇
Investor Service, Inc. (“Moody’s”).
(d) The
Underwriters shall have received the following additional closing documents,
in
form and substance satisfactory to the Underwriters and their
counsel:
| (i) |
the
Agreements and all documents required thereunder, duly executed and
delivered by each of the parties thereto other than the Underwriters
and
their affiliates;
|
| (ii) |
an
officer’s certificate of an officer of the Seller and an officer’s
certificate of an officer of the Depositor, in each case dated as
of the
Closing Date and reasonably satisfactory in form and substance to
the
Underwriters and counsel for the Underwriters with resolutions of
the
applicable board of directors and a copy of the formation documents
of the
Seller or the Depositor, as
applicable;
|
| (iii) |
an
opinion of in-house counsel to the Seller, reasonably satisfactory
in form
and substance to the Underwriters and counsel for the Underwriters,
dated
the Closing Date, as to various
matters;
|
| (iv) |
an
opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Wood LLP, counsel to the Depositor,
dated the Closing Date, reasonably satisfactory in form and substance
to
the Underwriters and counsel for the Underwriters, as to various
matters;
|
| (v) |
an
opinion of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel to the Underwriters, dated the
Closing Date, reasonably satisfactory in form and substance to the
Underwriters, as to various
matters;
|
| (vi) |
such
opinions of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Wood LLP, counsel to the Depositor, in
forms reasonably satisfactory to the Underwriters, their counsel
and each
Rating Agency, as to such additional matters not opined to in the
opinion
delivered pursuant to clause (iv) above as shall be required for
the
assignment of a rating to each Class of Underwritten Certificates
by each
Rating Agency (as to each, the “Required Ratings”) as set forth in the
Prospectus Supplement;
|
| (vii) |
a
letter from each Rating Agency that it has assigned the applicable
Required Ratings;
|
| (viii) |
a
letter, dated the Closing Date, from each of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇
LLP, counsel to the Depositor, and ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel to the
Underwriters, providing negative assurance with respect to the Preliminary
Prospectus as of its date and as of the date hereof and with respect
to
the Prospectus, as of its date and as of the Closing
Date;
|
| (ix) |
letters
dated on or before the date on which the Preliminary Prospectus is
dated
and conveyed, in form and substance acceptable to the Underwriters
and
their counsel and addressed to the Underwriters, prepared by Ernst
&
Young LLP (a) regarding certain numerical information contained or
incorporated by reference in the Preliminary Prospectus and (b) relating
to certain agreed upon procedures as requested by the Underwriters
relating to the Mortgage Loans;
|
| (x) |
letters
dated on or before the date on which the Prospectus is dated and
printed,
in form and substance acceptable to the Underwriters and their counsel
and
addressed to the Underwriters, prepared by Ernst & Young LLP (a)
regarding certain numerical information contained or incorporated
by
reference in the Prospectus and (b) relating to certain agreed upon
procedures as requested by the Underwriters relating to the Mortgage
Loans;
|
| (xi) |
an
opinion of counsel to the Trustee, dated the Closing Date, in form
and
substance reasonably satisfactory to the Underwriters, their counsel
and
each Rating Agency; and
|
| (xii) |
an
officer’s certificate of an officer of the Trustee, dated as of the
Closing Date, reasonably satisfactory in form and substance to the
Underwriters and their counsel.
|
(e) All
proceedings in connection with the transactions contemplated by this Agreement
and all documents incident hereto shall be reasonably satisfactory in form
and
substance to the Underwriters and their counsel.
(f) The
Seller and the Depositor shall have furnished the Underwriters with such other
certificates of its officers or others and such other documents or opinions
as
the Underwriters or their counsel may reasonably request.
(g) Subsequent
to the execution and delivery of this Agreement none of the following shall
have
occurred: (i) trading in securities generally on the New York Stock Exchange,
the American Stock Exchange or the over-the-counter market shall have been
suspended or minimum prices shall have been established on either of such
exchanges or such market by the Commission, by such exchange or by any other
regulatory body or governmental authority having jurisdiction; (ii) a banking
moratorium shall have been declared by Federal or New York State authorities;
(iii) the United States shall have become engaged in material hostilities,
there
shall have been an escalation of such hostilities involving the United States
or
there shall have been a declaration of war by the United States; (iv) a material
disruption in settlement or clearing operations shall occur; or (v) there shall
have occurred such a material adverse change in general economic, political
or
financial conditions (or the effect of international conditions on the financial
markets of the United States shall be such) which is material and adverse,
and
in the case of any of the events specified in clauses (i) through (v), either
individually or together with any other such event specified in clauses (i)
through (v) makes it in the judgment of the Underwriters, impractical to market
the Underwritten Certificates.
(h) There
shall not have occurred any development that has caused a material adverse
change in the financial condition or business operations of the Seller or the
Depositor which adverse change makes it impractical to market the Underwritten
Certificates.
(i) The
Interest Rate Swap Agreement and the Swap Administration Agreement shall have
been executed and delivered.
(j) The
Depositor will comply with Regulation AB in all respects as it relates to the
Depositor.
(k) The
Depositor shall have delivered to the Underwriters (i) a letter from the
Depositor’s registered accountants dated as of a date not more than 135 days
prior to the date of first use of the Prospectus Supplement, relating to certain
agreed upon procedures as requested by the Depositor with respect to the Static
Pool Information included in or incorporated by reference into the Prospectus
Supplement for securitized assets issued on or after January 1, 2006 and (ii)
a
letter from the Depositor’s registered accountants dated as of the date of the
Prospectus Supplement, addressed to the Underwriters and providing for reliance
on the letter described in (i) of this clause (k).
(l) If
any
condition specified in this Section 6 shall have not been fulfilled when and
as
required to be fulfilled, this Agreement may be terminated by the Underwriters
by notice to the Depositor at any time at or prior to the Closing Date, and
such
termination shall be without liability of any party to any other party except
as
provided in Sections 7, 8 and 19.
SECTION
7. Payment
of Expenses.
The
Depositor agrees to pay:
| (i) |
the
costs incident to the authorization, issuance, sale and delivery
of the
Certificates and any taxes payable in connection therewith; (ii)
the costs
incident to the preparation, printing and filing under the Securities
Act
of the Registration Statement and any amendments and exhibits thereto
and
any Issuer Free Writing Prospectus; (iii) the costs of distributing
the
Registration Statement as originally filed and each amendment thereto
and
any post-effective amendments thereof (including, in each case, exhibits),
the Preliminary Prospectus, the Prospectus and any amendment or supplement
to the Prospectus or any document incorporated by reference therein
and
any Issuer Free Writing Prospectus, all as provided in this Agreement;
(iv) the costs of reproducing and distributing this Agreement; (v)
any
fees charged by securities rating services for rating the Underwritten
Certificates; (vi) the cost of accountants’ comfort letters relating to
the Preliminary Prospectus and the Prospectus (except as otherwise
agreed
in a separate letter agreement between the Seller and the Underwriters);
(vii) all other costs and expenses incidental to the performance
of the
obligations of the Depositor and the Seller (including costs and
expenses
of counsel to the Depositor and the Seller) and (viii) to the extent
set
forth in the second succeeding paragraph, the costs and expenses
of the
Underwriters.
|
The
Underwriters shall be solely responsible for any due diligence expenses incurred
by them, any transfer taxes on the Underwritten Certificates which they may
sell, the expenses of advertising any offering of the Underwritten Certificates
made by the Underwriters, the cost of any accountants’ comfort letters relating
to any Computational Materials and the costs and expenses of counsel to the
Underwriters.
If
this
Agreement is terminated because of a breach of the Depositor of any covenant
or
agreement hereunder (other than the failure of the closing condition set forth
in Section 6(h) to be met), the Depositor shall cause the Underwriters to be
reimbursed for all reasonable out-of-pocket expenses, including fees and
disbursements of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel for the Underwriters.
SECTION
8. Indemnification
and Contribution.
(a) The
Depositor indemnifies and holds harmless each Underwriter, each Underwriter’s
respective officers and directors and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Securities Act or Section
20
of the Exchange Act, as follows:
| (i) |
against
any and all losses, claims, expenses, damages or liabilities, joint
or
several, to which such Underwriter, 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
Underwritten Certificates) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained
in
the Registration Statement, the Preliminary Prospectus, the Prospectus,
any Issuer Free Writing Prospectus, any amendment or supplement to
any of
the foregoing or the Static Pool 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
Depositor will not be liable in any such case to the extent that
any such
loss, claim, damage or liability arises out of or is based upon an
untrue
statement or omission, or alleged untrue statement or omission, made
in
any of such documents: (x) under the defined term “Modeling Assumptions”
under the caption “Yield on the Certificates—Weighted Average Lives,” the
table entitled “—Assumed Mortgage Loan Characteristics” and the tables
entitled “—Percent of Original Certificate Principal Balance Outstanding”
(collectively, the “Excluded Information”); (y) in reliance upon and in
conformity with any Underwriters’ Information; or (z) in any Derived
Information, except in the case of clause (x) or (z) to the extent
that
any untrue statement or alleged untrue statement or omission therein
results (or is alleged to have resulted) from an error or material
omission in the information either in the Preliminary Prospectus
or the
Prospectus for which the Depositor is responsible or concerning the
characteristics of the Mortgage Loans furnished by the Seller to
the
Underwriters for use in the preparation of any Excluded Information
or any
Free Writing Prospectus; provided, however, that no indemnity shall
be
provided by either the Depositor or the Seller for any error that
was
superseded or corrected by delivery to the Underwriters of corrected
written or electronic information prior to the first Contract of
Sale or
for which the Seller or the Depositor provided written notice of
such
error to the Underwriters prior to the first Contract of Sale and
the
Underwriters failed to correct such
error;
|
| (ii) |
against
any and all loss, liability, claim, damage and expense whatsoever,
to the
extent of the aggregate amount paid in settlement of any litigation,
or
investigation or proceeding by any governmental agency or body, commenced
or threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission,
if such settlement is effected with the written consent of the Depositor;
and
|
| (iii) |
against
any and all expense whatsoever (including the fees and disbursements
of
counsel chosen by any such Underwriter), reasonably incurred in
investigating, preparing or defending against any litigation, or
investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission,
to the extent that any such expense is not paid under clause (i)
or clause
(ii) above.
|
This
indemnity agreement will be in addition to any liability which the Depositor
may
otherwise have.
(b) Each
Underwriter, severally and not jointly, agrees to indemnify and hold harmless
each of the Depositor, each of its directors, each of its officers and each
person, if any, who controls the Depositor within the meaning of Section 15
of
the Securities Act or Section 20 of the Exchange Act, against any and all
losses, claims, expenses, damages or liabilities to which the Depositor or
any
such director, officer or controlling person may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
any
untrue statement or alleged untrue statement of any material fact contained
in
(i) Derived Information and (ii) the Registration Statement, the Preliminary
Prospectus, the Prospectus, or any amendment or supplement thereto, or arise
out
of, or are based upon, the omission or the alleged omission to state therein
a
material fact required to be stated therein or necessary to make the statements
made therein not misleading, but with respect to clause (b)(ii) above, only
to
the extent that such untrue statement or alleged untrue statement or omission
or
alleged omission was made in reliance upon and in conformity with the
Underwriters’ Information of such Underwriter; and will reimburse any legal or
other expenses reasonably incurred by the Depositor or any such director,
officer or controlling person in connection with investigating or defending
any
such loss, claim, damage, liability or action. This indemnity agreement will
be
in addition to any liability which such Underwriter may otherwise
have.
(c) Promptly
after receipt by an indemnified party under this Section 8 of notice of the
commencement of any action described therein, such indemnified party will,
if a
claim in respect thereof is to be made against the indemnifying party under
this
Section 8, notify the indemnifying party of the commencement thereof; but the
omission to so notify the indemnifying party will not relieve the indemnifying
party from any liability that it may have to any indemnified party otherwise
than under this Section 8; provided, however, that the failure to notify the
indemnifying party under this Section 8(c) shall not eliminate the contribution
requirement of the indemnifying party under Section 8(d) unless the failure
to
notify under this Section 8(c) is materially adverse to the indemnifying party.
In case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein, and, to the extent that it may
wish to do so, jointly with any other indemnifying party similarly notified,
to
assume the defense thereof, with counsel satisfactory to such indemnified party
(who shall not, except with the consent of the indemnified party, be counsel
to
the indemnifying party), and, after notice from the indemnifying party to such
indemnified party under this Section 8, such indemnifying party shall not be
liable for any legal or other expenses subsequently incurred by such indemnified
party in connection with the defense thereof other than reasonable costs of
investigation.
Any
indemnified party shall have the right to employ separate counsel in any such
action and to participate in the defense thereof, but the fees and expenses
of
such counsel shall be at the expense of such indemnified party unless: (i)
the
employment thereof has been specifically authorized by the indemnifying party
in
writing; (ii) such indemnified party shall have been advised by such counsel
that there may be one or more legal defenses available to it which are different
from or additional to those available to the indemnifying party and in the
reasonable judgment of such counsel it is advisable for such indemnified party
to employ separate counsel; (iii) a conflict or potential conflict exists (based
on advice of counsel to the indemnified party) between the indemnified party
and
the indemnifying party (in which case the indemnifying party will not have
the
right to direct the defense of such action on behalf of the indemnified party);
or (iv) the indemnifying party has failed to assume the defense of such action
and employ counsel reasonably satisfactory to the indemnified party, in which
case, if such indemnified party notifies the indemnifying party in writing
that
it elects to employ separate counsel at the expense of the indemnifying party,
the indemnifying party shall not have the right to assume the defense of such
action on behalf of such indemnified party, it being understood, however, the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to local counsel) at any time for all such indemnified parties, which
firm shall be designated in writing by the related Underwriter, if the
indemnified parties under this Section 8 consist of one Underwriter or any
of
its controlling persons, by the Representative, if the indemnified parties
under
this Section 8 consist of more than one Underwriter or their controlling
persons, or by the Depositor, if the indemnified parties under this Section
8
consist of the Depositor or any of the Depositor’s directors, officers or
controlling persons.
Each
indemnified party, as a condition of the indemnity agreements contained in
Section 8(a) and Section 8(b), shall use its good faith efforts to cooperate
with the indemnifying party in the defense of any such action or claim. No
indemnifying party shall be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a final
judgment for the plaintiff in any such action, the indemnifying party agrees
to
indemnify and hold harmless any indemnified party from and against any loss
or
liability (to the extent set forth in Section 8(a) or Section 8(b) as
applicable) by reason of such settlement or judgment.
Notwithstanding
the foregoing paragraph, if at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for fees
and
expenses of counsel, the indemnifying party agrees that it shall be liable
for
any settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement.
(d) If
the
indemnification provided for in Section 8(a) or 8(b) is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or
(b)
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages
or
liabilities referred to in subsection (a) or (b) above (i) in such proportion
as
is appropriate to reflect the relative benefits received by the Depositor on
the
one hand and the Underwriters on the other from the offering of the Underwritten
Certificates or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect
not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Depositor on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Depositor on the one
hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses) received
by the Depositor bear to the total underwriting discounts and commissions
received by the Underwriters. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material
fact
relates to information supplied by the Depositor or by the Underwriters and
the
parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to above in the first sentence of this subsection (d) shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim which
is
the subject of this subsection (d). Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any amount in
excess of underwriting discounts and commissions received by such Underwriter.
No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters’
obligations in this subsection (d) to contribute are several in proportion
to
their respective underwriting obligations and not joint.
SECTION
9. Representations,
Warranties and Agreements to Survive Delivery.
All
representations, warranties and agreements contained in this Agreement or
contained in certificates of officers of the Depositor or the Seller submitted
pursuant hereto shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of the Underwriters or controlling
persons thereof, or by or on behalf of the Depositor or the Seller, and shall
survive delivery of any Underwritten Certificates to the
Underwriters.
SECTION
10. Default
by One or More of the Underwriters.
If one
or more of the Underwriters participating in the public offering of the
Underwritten Certificates shall fail at the Closing Date to purchase the
Underwritten Certificates which it is (or they are) obligated to purchase
hereunder (the “Defaulted Certificates”), then the non-defaulting Underwriters
shall have the right, within 24 hours thereafter, 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 Defaulted Certificates in such
amounts as may be agreed upon and upon the terms herein set forth. If, however,
the Underwriters have not completed such arrangements within such 24-hour
period, then
(a) if
the
aggregate principal amount of Defaulted Certificates does not exceed 10% of
the
aggregate principal amount of the Underwritten 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
(b) if
the
aggregate principal amount of Defaulted Certificates exceeds 10% of the
aggregate principal amount of the Underwritten Certificates to be purchased
pursuant to this Agreement, this Agreement shall terminate, without any
liability on the part of any non-defaulting Underwriter.
No
action
taken pursuant to this Section 10 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 10, each
of
the 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 Prospectus or in any other documents
or
arrangements may be effected.
SECTION
11. Termination
of Agreement.
The
Underwriters may terminate this Agreement immediately upon notice to the
Depositor, at any time at or prior to the Closing Date if the events set forth
in Section 6(h) of this Agreement shall occur and be continuing, or if any
other
closing condition set forth in Section 6 shall not have been fulfilled when
required to be fulfilled. In the event of any such termination, the provisions
of Section 7, Section 8, Section 9, Section 14, Section 16 and Section 19 shall
remain in effect.
SECTION
12. Notices.
All
statements, requests, notices and agreements hereunder shall be in writing,
and:
(a) if
to the
Underwriters, shall be delivered or sent to the Representative at ▇.▇. ▇▇▇▇▇▇
Securities Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Legal;
(b) if
to the
Depositor, shall be delivered or sent by mail, telex or facsimile transmission
to care of Argent Securities Inc., ▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Facsimile (▇▇▇) ▇▇▇-▇▇▇▇, Attention: General Counsel;
and
(c) if
to the
Seller, shall be delivered or sent by mail, telex or facsimile transmission
to
care of Ameriquest Mortgage Company, ▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Facsimile (▇▇▇) ▇▇▇-▇▇▇▇, Attention: General
Counsel.
SECTION
13. Persons
Entitled to the Benefit of this Agreement.
This
Agreement shall inure to the benefit of and be binding upon the Underwriters,
the Seller and the Depositor, and their respective successors. This Agreement
and the terms and provisions hereof are for the sole benefit of only those
persons, except that the representations, warranties, indemnities and agreements
contained in this Agreement shall also be deemed to be for the benefit of the
person or persons, if any, who control any of the Underwriters within the
meaning of Section 15 of the Securities Act, and for the benefit of each
Underwriter’s respective officers and directors and for the benefit of directors
of the Depositor, officers of the Depositor who have signed the Registration
Statement and any person controlling the Depositor within the meaning of Section
15 of the Securities Act. Nothing in this Agreement is intended or shall be
construed to give any person, other than the persons referred to in this Section
13, any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision contained herein.
SECTION
14. Survival.
The
respective indemnities, representations, warranties and agreements of the
Depositor, the Seller and the Underwriters contained in this Agreement, or
made
by or on behalf of them, respectively, pursuant to this Agreement, shall survive
the delivery of and payment for the Underwritten Certificates and shall remain
in full force and effect, regardless of any investigation made by or on behalf
of any of them or any person controlling any of them.
SECTION
15. Definition
of the Term “Business Day”.
For
purposes of this Agreement, “Business Day” means any day on which the New York
Stock Exchange is open for trading.
SECTION
16. Governing
Law; Submission to Jurisdiction.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York, without regard to principles of conflicts of law other than
Section 5-1401 of the New York General Obligations Law which shall
govern.
The
parties hereto hereby submit to the non-exclusive jurisdiction of the United
States District Court for the Southern District of New York and any court in
the
State of New York located in the City and County of New York, and appellate
court from any thereof, in any action, suit or proceeding brought against it
or
in connection with this Agreement or any of the related documents or the
transactions contemplated hereunder or for recognition or enforcement of any
judgment, and the parties hereto hereby agree that all claims in respect of
any
such action or proceeding may be heard or determined in New York State court
or,
to the extent permitted by law, in such federal court. The parties hereto hereby
irrevocably waive, to the fullest extent permitted by law, any and all rights
to
trial by jury in any legal proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby.
SECTION
17. Counterparts.
This
Agreement may be executed in counterparts and, if executed in more than one
counterpart, the executed counterparts shall each be deemed to be an original
but all such counterparts shall together constitute one and the same
instrument.
SECTION
18. Headings.
The
headings herein are inserted for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this
Agreement.
SECTION
19. Obligations
of the Seller.
The
Seller 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 Securities 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 Underwritten Certificates from the Depositor,
to
indemnify and hold harmless each Underwriter against any failure by the
Depositor to perform its obligations to the Underwriters hereunder, including,
without limitation, any failure by the Depositor to honor any obligation to
any
Underwriter pursuant to Sections 8 and 14 (with respect to the survival of
indemnities) hereof. In the case of any claim against the Seller 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 proceedings against the
Depositor.
If
the
foregoing correctly sets forth the agreement among the Depositor, the Seller
and
the Underwriters, please indicate your acceptance in the space provided for
the
purpose below.
Very
truly yours,
ARGENT
SECURITIES INC.
By:___________________________________
Name:
Title:
AMERIQUEST
MORTGAGE COMPANY
By:___________________________________
Name:
Title:
CONFIRMED
AND ACCEPTED, as of the date first above written:
▇.▇.
▇▇▇▇▇▇ SECURITIES INC.,
as
Representative of the several Underwriters
By:__________________________________
Name:
Title:
|
Underwriters
|
Principal
Amount
|
Proceeds
to the Depositor
|
|
▇.▇.
▇▇▇▇▇▇ Securities Inc.
|
||
|
Class
A-1
|
$322,821,900
|
99.8800%
|
|
Class
A-2A
|
$123,390,000
|
99.8500%
|
|
Class
A-2B
|
$57,915,000
|
99.8500%
|
|
Class
A-2C
|
$55,215,000
|
99.8500%
|
|
Class
A-2D
|
$37,386,000
|
99.8500%
|
|
Class
M-1
|
$39,781,800
|
99.8500%
|
|
Class
M-2
|
$33,278,850
|
99.8500%
|
|
Class
M-3
|
$11,857,950
|
99.8500%
|
|
Class
M-4
|
$16,065,900
|
99.8500%
|
|
Class
M-5
|
$11,857,950
|
99.8500%
|
|
Class
M-6
|
$8,797,950
|
99.8500%
|
|
Class
M-7
|
$11,092,950
|
99.8500%
|
|
Class
M-8
|
$6,502,950
|
99.8500%
|
|
Class
M-9
|
$6,120,450
|
99.8500%
|
|
Class
M-10
|
$4,590,000
|
88.7702%
|
|
Citigroup
Global Markets Inc.
|
||
|
Class
A-1
|
$322,821,900
|
99.8800%
|
|
Class
A-2A
|
$123,390,000
|
99.8500%
|
|
Class
A-2B
|
$57,915,000
|
99.8500%
|
|
Class
A-2C
|
$55,215,000
|
99.8500%
|
|
Class
A-2D
|
$37,386,000
|
99.8500%
|
|
Class
M-1
|
$39,781,800
|
99.8500%
|
|
Class
M-2
|
$33,278,850
|
99.8500%
|
|
Class
M-3
|
$11,857,950
|
99.8500%
|
|
Class
M-4
|
$16,065,900
|
99.8500%
|
|
Class
M-5
|
$11,857,950
|
99.8500%
|
|
Class
M-6
|
$8,797,950
|
99.8500%
|
|
Class
M-7
|
$11,092,950
|
99.8500%
|
|
Class
M-8
|
$6,502,950
|
99.8500%
|
|
Class
M-9
|
$6,120,450
|
99.8500%
|
|
Class
M-10
|
$4,590,000
|
88.7702%
|
|
Deutsche
Bank Securities Inc.
|
||
|
Class
A-1
|
$35,869,100
|
99.8800%
|
|
Class
A-2A
|
$13,710,000
|
99.8500%
|
|
Class
A-2B
|
$6,435,000
|
99.8500%
|
|
Class
A-2C
|
$6,135,000
|
99.8500%
|
|
Class
A-2D
|
$4,154,000
|
99.8500%
|
|
Class
M-1
|
$4,420,200
|
99.8500%
|
|
Class
M-2
|
$3,697,650
|
99.8500%
|
|
Class
M-3
|
$1,317,550
|
99.8500%
|
|
Class
M-4
|
$1,785,100
|
99.8500%
|
|
Class
M-5
|
$1,317,550
|
99.8500%
|
|
Class
M-6
|
$977,550
|
99.8500%
|
|
Class
M-7
|
$1,232,550
|
99.8500%
|
|
Class
M-8
|
$722,550
|
99.8500%
|
|
Class
M-9
|
$680,050
|
99.8500%
|
|
Class
M-10
|
$510,000
|
88.7702%
|
|
UBS
Securities LLC
|
||
|
Class
A-1
|
$35,869,100
|
99.8800%
|
|
Class
A-2A
|
$13,710,000
|
99.8500%
|
|
Class
A-2B
|
$6,435,000
|
99.8500%
|
|
Class
A-2C
|
$6,135,000
|
99.8500%
|
|
Class
A-2D
|
$4,154,000
|
99.8500%
|
|
Class
M-1
|
$4,420,200
|
99.8500%
|
|
Class
M-2
|
$3,697,650
|
99.8500%
|
|
Class
M-3
|
$1,317,550
|
99.8500%
|
|
Class
M-4
|
$1,785,100
|
99.8500%
|
|
Class
M-5
|
$1,317,550
|
99.8500%
|
|
Class
M-6
|
$977,550
|
99.8500%
|
|
Class
M-7
|
$1,232,550
|
99.8500%
|
|
Class
M-8
|
$722,550
|
99.8500%
|
|
Class
M-9
|
$680,050
|
99.8500%
|
|
Class
M-10
|
$510,000
|
88.7702%
|
EXHIBIT
A
Underwriters’
Information
generally
be treated as capital gain or loss. Moreover, in the case of a bank or thrift
institution, Code Section 582(c) would likely not apply to treat such gain
or
loss as ordinary.
It
is
possible that the right to receive payments in respect of the Net WAC Rate
Carryover Amounts could be treated as a partnership among the holders of all
of
the Certificates, in which case holders of such Certificates potentially would
be subject to different timing of income and foreign holders of such
Certificates could be subject to withholding in respect of any related Net
WAC
Rate Carryover Amount. Holders of the Class A and Mezzanine Certificates are
advised to consult their own tax advisors regarding the allocation of issue
price, timing, character and source of income and deductions resulting from
the
ownership of their Certificates.
The
REMIC
regular interest component of each Class A and Mezzanine Certificate will be
treated as assets described in Section 7701(a)(19)(C) of the Code, and as “real
estate assets” under Section 856(c)(5)(B) of the Code, generally, in the same
proportion that the assets of the Trust, exclusive of the assets not included
in
any REMIC, would be so treated. In addition, the interest derived from the
REMIC
regular interest component of each Class A and Mezzanine Certificate will be
interest on obligations secured by interests in real property for purposes
of
section 856(c)(3) of the Code, subject to the same limitation in the preceding
sentence. The Notional Principal Contract component of each Class A and
Mezzanine Certificate will not qualify, however, as an asset described in
Section 7701(a)(19)(C) of the Code, as a real estate asset under Section
856(c)(5)(B) of the Code or as a “qualified mortgage” within the meaning of
Section 860G(a)(3) of the Code. As a result, the Class A and Mezzanine
Certificates generally may not be a suitable investment for a REMIC, real estate
investment trust or an entity intending to qualify under Section 7701(a)(19)(C)
of the Code.
Because
the Net WAC Rate Carryover Amount is treated as separate rights of the Class
A
and Mezzanine Certificates not payable by any REMIC elected by the Trust, such
rights will not be treated as qualifying assets for any certificateholder that
is a mutual savings bank, domestic building and loan association, real estate
investment trust, or REMIC. In addition, any amounts received from the Net
WAC
Rate Carryover Reserve Account and the Swap Account will not be qualifying
real
estate income for real estate investment trusts or qualifying income for
REMICs.
It
is not
anticipated that any REMIC elected by the Issuing Entity will engage in any
transactions that would subject it to the prohibited transactions tax as defined
in Section 860F(a)(2) of the Code, the contributions tax as defined in Section
860G(d) of the Code or the tax on net income from foreclosure property as
defined in Section 860G(c) of the Code. However, in the event that any such
tax
is imposed on any REMIC elected by the Trust, such tax will be borne (i) by
the
Trustee, if the Trustee has breached its obligations with respect to REMIC
compliance under the Pooling and Servicing Agreement, (ii) by the Master
Servicer, if the Master Servicer has breached its obligations with respect
to
REMIC compliance under the Pooling and Servicing Agreement and (iii) otherwise
by the Trust, with a resulting reduction in amounts otherwise distributable
to
holders of the Class A and Mezzanine Certificates. See “Description of the
Securities” and “Federal Income Tax Consequences REMICs” in the prospectus. The
responsibility for filing annual federal information returns and other reports
will be borne by the Trustee. See “Federal Income Tax Consequences—REMICs” in
the prospectus.
For
further information regarding the federal income tax consequences of investing
in the Class A and Mezzanine Certificates, see “Federal Income Tax
Consequences—REMICs” in the prospectus.
METHOD
OF DISTRIBUTION
Subject
to the terms and conditions set forth in the Underwriting Agreement, dated
the
date of this prospectus supplement (the “Underwriting Agreement”), the Depositor
has agreed to sell, and each of the Underwriters severally has agreed to
purchase the portion of the Offered Certificates set forth opposite their
respective names. Each Underwriter is obligated to purchase all of its allocated
portion of the Offered Certificates, if it purchases any.
|
Underwriters
|
Original
Certificate
Principal
Balance
of
the
Class A-1
Certificates
($)
|
Original
Certificate
Principal
Balance
of
the
Class A-2A
Certificates
($)
|
Original
Certificate
Principal
Balance
of
the
Class A-2B
Certificates
($)
|
Original
Certificate
Principal
Balance
of
the
Class A-2C
Certificates
($)
|
Original
Certificate
Principal
Balance
of
the
Class A-2D
Certificates
($)
|
Original
Certificate
Principal
Balance
of
the
Class M-1
Certificates
($)
|
Original
Certificate
Principal
Balance
of
the
Class M-2
Certificates
($)
|
|
▇.▇.
▇▇▇▇▇▇ Securities Inc.
|
322,821,900
|
123,390,000
|
57,915,000
|
55,215,000
|
37,386,000
|
39,781,800
|
33,278,850
|
|
Citigroup
Global Markets Inc.
|
322,821,900
|
123,390,000
|
57,915,000
|
55,215,000
|
37,386,000
|
39,781,800
|
33,278,850
|
|
Deutsche
Bank Securities Inc.
|
35,869,100
|
13,710,000
|
6,435,000
|
6,135,000
|
4,154,000
|
4,420,200
|
3,697,650
|
|
UBS
Securities LLC
|
35,869,100
|
13,710,000
|
6,435,000
|
6,135,000
|
4,154,000
|
4,420,200
|
3,697,650
|
|
Underwriters
|
Original
Certificate
Principal
Balance
of
the
Class M-3
Certificates
($)
|
Original
Certificate
Principal
Balance
of
the
Class M-4
Certificates
($)
|
Original
Certificate
Principal
Balance
of
the
Class M-5
Certificates
($)
|
Original
Certificate
Principal
Balance
of
the
Class M-6
Certificates
($)
|
Original
Certificate
Principal
Balance
of
the
Class M-7
Certificates
($)
|
Original
Certificate
Principal
Balance
of
the
Class M-8
Certificates
($)
|
Original
Certificate
Principal
Balance
of
the
Class M-9
Certificates
($)
|
Original
Certificate
Principal
Balance
of
the
Class M-10
Certificates
($)
|
|
▇.▇.
▇▇▇▇▇▇ Securities Inc.
|
11,857,950
|
16,065,900
|
11,857,950
|
8,797,950
|
11,092,950
|
6,502,950
|
6,120,450
|
4,590,000
|
|
Citigroup
Global Markets Inc.
|
11,857,950
|
16,065,900
|
11,857,950
|
8,797,950
|
11,092,950
|
6,502,950
|
6,120,450
|
4,590,000
|
|
Deutsche
Bank Securities Inc.
|
1,317,550
|
1,785,100
|
1,317,550
|
977,550
|
1,232,550
|
722,550
|
680,050
|
510,000
|
|
UBS
Securities LLC
|
1,317,550
|
1,785,100
|
1,317,550
|
977,550
|
1,232,550
|
722,550
|
680,050
|
510,000
|
The
Depositor has been advised by the Underwriters that they propose initially
to
offer the Offered Certificates of each class to the public at the offering
price
set forth on the cover page and to certain dealers at such price less a selling
concession, not in excess of the percentage set forth in the table below of
the
Certificate Principal Balance of the related class of Offered Certificates.
The
Underwriters may allow and such dealers may reallow a reallowance discount,
not
in excess of the percentage set forth in the table below of the Certificate
Principal Balance of the related class of Offered Certificates, to certain
other
dealers.
After
the initial public offering, the public offering prices, such concessions and
such discounts may be changed.
|
Class
of Certificates
|
Selling
Concession
|
Reallowance
Discount
|
|
Class
A-1
|
0.0720%
|
0.0360%
|
|
Class
A-2A
|
0.0900%
|
0.0450%
|
|
Class
A-2B
|
0.0900%
|
0.0450%
|
|
Class
A-2C
|
0.0900%
|
0.0450%
|
|
Class
A-2D
|
0.0900%
|
0.0450%
|
|
Class
M-1
|
0.0900%
|
0.0450%
|
|
Class
M-2
|
0.0900%
|
0.0450%
|
|
Class
M-3
|
0.0900%
|
0.0450%
|
|
Class
M-4
|
0.0900%
|
0.0450%
|
|
Class
M-5
|
0.0900%
|
0.0450%
|
|
Class
M-6
|
0.0900%
|
0.0450%
|
|
Class
M-7
|
0.0900%
|
0.0450%
|
|
Class
M-8
|
0.0900%
|
0.0450%
|
|
Class
M-9
|
0.0900%
|
0.0450%
|
|
Class
M-10
|
0.0900%
|
0.0450%
|
Until
the
distribution of the Offered Certificates is completed, rules of the Securities
and Exchange Commission may limit the ability of the Underwriters and certain
selling group members to bid for and purchase the Offered Certificates. As
an
exception to these rules, the Underwriters are permitted to engage in certain
transactions that stabilize the price of the Offered Certificates. Such
transactions consist of bids or purchases for the purpose of pegging, fixing
or
maintaining the price of the Offered Certificates.
In
general, purchases of a security for the purpose of stabilization or to reduce
a
short position could cause the price of the security to be higher than it might
be in the absence of such purchases.
Neither
the Depositor nor any of the Underwriters makes any representation or prediction
as to the direction or magnitude of any effect that the transactions described
above may have on the prices of the Offered Certificates. In addition, neither
the Depositor nor any of the Underwriters makes any representation that the
Underwriters will engage in such transactions or that such transactions, once
commenced, will not be discontinued without notice.
The
Offered Certificates are offered subject to receipt and acceptance by the
Underwriters, to prior sale and to each Underwriter’s right to reject any order
in whole or in part and to withdraw, cancel or modify the offer without notice.
It
is
expected that delivery of the Offered Certificates will be made through the
facilities of DTC, Clearstream and the Euroclear System on or about the Closing
Date.
The
Offered Certificates will be offered in Europe and the United States of
America.
The
Underwriting Agreement provides that the Depositor and the Seller will indemnify
each Underwriter against certain civil liabilities, including liabilities under
the Securities Act of 1933, as amended, or will contribute to payments an
Underwriter may be required to make in respect thereof.
SECONDARY
MARKET
There
is
currently no secondary market for the Class A and Mezzanine Certificates and
there can be no assurance that a secondary market for the Class A and Mezzanine
Certificates will develop or, if it does develop, that it will continue.
Each
Underwriter intends to establish a market in the classes of Offered Certificates
purchased by it, but no Underwriter has any obligation to do so.
The
primary source of information available to investors concerning the Class A
and
Mezzanine Certificates will be the monthly reports made available via the
Trustee’s internet website, which will include information as to the outstanding
Certificate Principal Balance of the Class A and Mezzanine Certificates. There
can be no assurance that any additional information regarding the Class A and
Mezzanine Certificates will be available through any other source. In addition,
the Depositor is not aware of any source through which price information about
the Class A and Mezzanine Certificates will be generally available on an ongoing
basis. The limited nature of such information regarding the Class A and
Mezzanine Certificates may adversely affect the liquidity of the Class A and
Mezzanine Certificates, even if a secondary market for the Offered Certificates
becomes available.
LEGAL
OPINIONS
Certain
legal matters relating to the Class A and Mezzanine Certificates will be passed
upon for the Depositor by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Wood llp,
New
York, New York and for the Underwriters by ▇▇▇▇▇ ▇▇▇▇▇▇ LLP.
RATINGS
It
is a
condition to the issuance of the Certificates that the Offered Certificates
receive the following ratings from Fitch Ratings (“Fitch”), ▇▇▇▇▇’▇ Investors
Service, Inc. (“Moody’s”) and Standard & Poor’s Ratings Services, a division
of the ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”; and together with Fitch and
Moody’s, the “Rating Agencies”):
|
Offered
Certificates
|
Fitch
|
▇▇▇▇▇’▇
|
S&P
|
|
A-1
|
AAA
|
Aaa
|
AAA
|
|
A-2A
|
AAA
|
Aaa
|
AAA
|
|
A-2B
|
AAA
|
Aaa
|
AAA
|
|
A-2C
|
AAA
|
Aaa
|
AAA
|
|
A-2D
|
AAA
|
Aaa
|
AAA
|
|
M-1
|
AA+
|
Aa1
|
AA+
|
|
M-2
|
AA
|
Aa2
|
AA
|
|
M-3
|
AA
|
Aa3
|
AA-
|
|
M-4
|
A+
|
A1
|
A+
|
|
M-5
|
A
|
A2
|
A
|
|
▇-▇
|
▇-
|
▇▇
|
▇-
|
|
▇-▇
|
BBB+
|
Baa1
|
BBB+
|
|
M-8
|
BBB
|
Baa2
|
BBB
|
|
M-9
|
BBB
|
Baa3
|
BBB-
|
|
M-10
|
BBB-
|
Ba1
|
BB+
|
The
ratings of the Rating Agencies assigned to asset-backed pass-through
certificates address the likelihood of the receipt by certificateholders of
all
distributions to which such certificateholders are entitled. The rating