EXHIBIT 1.1
OPTEUM MORTGAGE ACCEPTANCE CORP.
$_____________ (Approximately)
Mortgage Pass-Through Certificates, Series 200__-__
Class R $________________ _____%
Class A $________________ _____%
UNDERWRITING AGREEMENT
______________, 200_
[Underwriter]
___________________
___________________
___________________
Ladies and Gentlemen:
Opteum Mortgage Acceptance Corp., a Delaware corporation (the
"Company"), proposes to sell to you (also referred to herein as the
"Underwriter") Mortgage Pass-Through Certificates, Series 200_-_, Class A and
Class R Certificates other than a de minimis portion thereof (collectively, the
"Certificates"), having the aggregate principal amounts and Pass-Through Rates
set forth above. The Certificates, together with the Class M and Class B
Certificates of the same series, will evidence the entire beneficial interest in
the Trust Fund (as defined in the Pooling and Servicing Agreement referred to
below) consisting primarily of a pool (the "Pool") of conventional, fixed-rate,
one- to four- family residential mortgage loans (the "Mortgage Loans") as
described in the Prospectus Supplement (as hereinafter defined) to be sold by
the Company. A de minimis portion of the Class R Certificates will not be sold
hereunder and will be held by the Trustee.
The Certificates will be issued pursuant to a pooling and servicing
agreement (the "Pooling and Servicing Agreement") to be dated as of
________________________, 200_ (the "Cut-off Date") among the Company, as
seller, ______________________________, as master servicer ("Master Servicer"),
and ______________________________, as trustee (the "Trustee"). The Certificates
are described more fully in the Basic Prospectus and the Prospectus Supplement
(each as hereinafter defined) which the Company has furnished to you.
1. REPRESENTATIONS WARRANTIES AND COVENANTS.
1.1 The Company represents and warrants to, and agrees with you that:
(a) The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement (No. 333-________) on Form S-3
for the registration under the Securities Act of 1933, as amended (the
"Act"), of Mortgage Pass-Through Certificates (issuable in series),
including the Certificates, which registration statement has become
effective, and a copy of which, as amended to the date hereof, has
heretofore been delivered to you. The Company proposes to file with the
Commission pursuant to Rule 424(b) under the rules and regulations of the
Commission under the Act (the "1933 Act Regulations") a supplement dated
________________. 200_ (the "Prospectus Supplement"), to the prospectus
dated ______________, 200_ (the "Basic Prospectus"), relating to the
Certificates and the method of distribution thereof. Such registration
statement (No. 333-________) including exhibits thereto and any information
incorporated therein by reference, as amended at the date hereof, is
hereinafter called the "Registration Statement"; and the Basic Prospectus
and the Prospectus Supplement and any information incorporated therein by
reference, together with any amendment thereof or supplement thereto
authorized by the Company on or prior to the Closing Date for use in
connection with the offering of the Certificates, are hereinafter called
the "Prospectus". The Company prepared a Free Writing Prospectus containing
substantially all information that will appear in the Prospectus Supplement
and minus specific sections including the "Method of Distribution" section
(such Free Writing Prospectus, together with the Basic Prospectus, the
"Definitive Free Writing Prospectus").
(b) The Registration Statement has become effective, and the
Registration Statement as of the effective date (the "Effective Date"), and
the Prospectus, as of the date of the Prospectus Supplement, complied in
all material respects with the applicable requirements of the Act and the
1933 Act Regulations; and the Registration Statement, as of the Effective
Date, did not contain any untrue statement of a material fact and did not
omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading and the Prospectus, as of the
date of the Prospectus Supplement, did not, and as of the Closing Date will
not, contain an untrue statement of a material fact and did not and will
not omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no representations or
warranties as to the information contained in or omitted from the
Registration Statement or the Prospectus or any amendment thereof or
supplement thereto relating to the information identified in Exhibit D (the
"Excluded Information"); and provided, further, that the Company makes no
representations or warranties as to either (i) any information in any
Computational Materials or ABS Term Sheets (each as hereinafter defined)
required to be provided by the Underwriter to the Company pursuant to
Section 4.2, except to the extent of any information set forth therein that
constitutes Pool Information (as defined below), or (ii) as to any
information contained in or omitted from the portions of the Prospectus
identified in Exhibit E (the "Underwriter Information"). In addition, any
Issuer Information (as defined below) contained in the Definitive Free
Writing Prospectus, as of the date thereof and as of the time of each
Contract of Sale occurring prior to the time that Prospectus Supplement
first becomes available for use by the Underwriter, did not contain an
untrue statement of a material fact and did not omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The Effective
Date shall mean the earlier of the date by which the Prospectus Supplement
is first used and the time of the first Contract of Sale to which such
Prospectus Supplement relates. As used herein, "Pool Information" means
information with respect to the characteristics of the Mortgage Loans and
administrative and servicing fees, as provided by or on behalf of the
Company to the Underwriter in final form and set forth in the Prospectus
Supplement. The Company acknowledges that, except for any Computational
Materials, the Underwriter Information constitutes the only information
furnished in writing by you or on your behalf for use in connection with
the preparation of the Registration Statement, any preliminary prospectus
or the Prospectus, and you confirm that the Underwriter Information is
correct.
(c) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware and
has the requisite corporate power to own its properties and to conduct its
business as presently conducted by it.
(d) The Company is not, as of the date upon which it delivers the
Definitive Free Writing Prospectus, an Ineligible Issuer, as such term is
defined in Rule 405 of the 1933 Act Regulations.
(e) This Agreement has been duly authorized, executed and delivered by
the Company.
(f) As of the Closing Date (as defined herein), the Certificates and
the Pooling and Servicing Agreement will conform in all material respects
to the description thereof contained in the Prospectus and the
representations and warranties of the Company in the Pooling and Servicing
Agreement will be true and correct in all material respects.
1.2 The Underwriter represents and warrants to and agrees with the Company
that:
(a) No purpose of the Underwriter relating to the purchase of any of
the Class R Certificates by the Underwriter is or will be to enable the
Company to impede the assessment or collection of any tax.
(b) The Underwriter has no present knowledge or expectation that it
will be unable to pay any United States taxes owed by it so long as any of
the Certificates remain outstanding.
(c) The Underwriter has no present knowledge or expectation that it
will become insolvent or subject to a bankruptcy proceeding for so long as
any of the Certificates remain outstanding.
(d) No purpose of the Underwriter relating to any sale of any of the
Class R Certificates by the Underwriter will be to enable it to impede the
assessment or collection of tax. In this regard, the Underwriter hereby
represents to and for the benefit of the Company that the Underwriter
intends to pay taxes associated with holding the Class R Certificates, as
they become due, fully understanding that it may incur tax liabilities in
excess of any cash flows generated by the Class R Certificates.
(e) The Underwriter will, in connection with any transfer it makes of
any of the Class R Certificates, obtain from its transferee the affidavit
required by Section 5.02(i)(B)(1) of the Pooling and Servicing Agreement,
will not consummate any such transfer if it knows or believes that any
representation contained in such affidavit is false and will provide the
Trustee with the Certificate required by Section 5.02(i)(B)(2) of the
Pooling and Servicing Agreement.
(f) The Underwriter hereby certifies that (i) with respect to any
classes of Certificates issued in authorized denominations or Percentage
Interests of less than $25,000 or 20%, as the case may be, the fair market
value of each such Certificate sold to any person on the date of initial
sale thereof by the Underwriter will not be less than $100,000, and (ii)
with respect to each class of Certificates to be maintained on the
book-entry records of The Depository Trust Company ("DTC"), the interest in
each such class of Certificates sold to any person on the date of initial
sale thereof by the Underwriter shall not be less than an initial
Certificate Principal Balance of $25,000.
(g) The Underwriter represents that it has in place, and covenants
that it shall maintain, internal controls and procedures which it
reasonably believes to be sufficient to ensure full compliance with all
applicable legal requirements with respect to the generation and use of
Free Writing Prospectuses in connection with the offering of the
Certificates.
(h) The Underwriter will use its best reasonable efforts to cause Cede
& Co. to issue a commitment letter, prior to the Closing Date, to DTC
stating that Cede & Co. will value the DTC Registered Certificates
(hereinafter defined) on an ongoing basis subsequent to the Closing Date.
(i) The Underwriter will have funds available at ___________________
___, in the Underwriter's account at such bank at the time all documents
are executed and the closing of the sale of the Certificates is completed,
except for the transfer of funds and the delivery of the Certificates. Such
funds will be available for immediate transfer into the account of the
Company maintained at such bank.
(j) As of the date hereof and as of the Closing Date, the Underwriter
has complied with all of its obligations hereunder. With respect to all
Free Writing Prospectuses, other than the Definitive Free Writing
Prospectus, provided by the Underwriter to any investor, if any, such Free
Writing Prospectuses are accurate in all material respects (taking into
account the assumptions explicitly set forth in the Free Writing
Prospectuses, except to the extent of any errors therein that are caused by
errors in the Pool Information, and except for any Issuer Information
therein). The Free Writing Prospectuses, other than the Definitive Free
Writing Prospectus, provided by the Underwriter to the Company pursuant to
Section 4.4 constitute a complete set of all such Free Writing Prospectuses
furnished to any investor by such Underwriter in connection with the
offering of any Certificates, other than any Underwriter Derived
Information.
1.3 The Underwriter covenants and agrees to pay directly, or reimburse the
Company upon demand for (i) any and all taxes (including penalties and interest)
owed or asserted to be owed by the Company as a result of a claim by the
Internal Revenue Service that the transfer of any of the Class R Certificates to
the Underwriter hereunder or any transfer thereof by the Underwriter may be
disregarded for federal tax purposes and (ii) any and all losses, claims,
damages and liabilities, including attorney's fees and expenses, arising out of
any failure of the Underwriter to make payment or reimbursement in connection
with any such assertion as required in (i) above. In addition, the Underwriter
acknowledges that on the Closing Date immediately after the transactions
described herein it will be the owner of the Class R Certificates for federal
tax purposes, and the Underwriter covenants that it will not assert in any
proceeding that the transfer of the Class R Certificates from the Company to the
Underwriter should be disregarded for any purpose.
2. PURCHASE AND SALE. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the Company agrees to
sell to you, and you agree to purchase from the Company, the Certificates (other
than for a de minimis portion of the Class R Certificates, which shall be
transferred by the Company to the Trustee) at a price equal to ___% of the
aggregate principal balance of the Certificates as of the Closing Date. There
will be added to the purchase price of the Certificates an amount equal to
interest accrued thereon from the Cut-off Date to but not including the Closing
Date. The purchase price for the Certificates was agreed to by the Company in
reliance upon the transfer from the Company to the Underwriter of the tax
liabilities associated with the ownership of the Class R Certificates.
3. DELIVERY AND PAYMENT. Delivery of and payment for the Certificates shall
be made at the office of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ at 10:00 a.m., New York time,
on ____________, 200__ or such later date as you shall designate, which date and
time may be postponed by agreement between you and the Company (such date and
time of delivery and payment for the Certificates being herein called the
"Closing Date"). Delivery of the Certificates (except for the Class R
Certificates (the "Definitive Certificates")) shall be made to you through the
Depository Trust Company ("DTC") (such Certificates, the "DTC Registered
Certificates"), and delivery of the Definitive Certificates shall be made in
registered, certified form, in each case against payment by you of the purchase
price thereof to or upon the order of the Company by wire transfer in
immediately available funds. The Definitive Certificates shall be registered in
such names and in such denominations as you may request not less than two
business days in advance of the Closing Date. The Company agrees to have the
Definitive Certificates available for inspection, checking and packaging by you
in New York, New York not later than 1:00 p.m. on the business day prior to the
Closing Date.
4. OFFERING BY UNDERWRITER.
4.1 It is understood that the Underwriter propose to offer the Certificates
for sale to the public as set forth in the Prospectus and that the Underwriter
will not offer, sell or otherwise distribute the Certificates (except for the
sale thereof in exempt transactions) in any state in which the Certificates are
not exempt from registration under Blue Sky laws or state securities laws
(except where the Certificates will have been qualified for offering and sale at
your direction under such Blue Sky laws or state securities laws). Prior to the
date of the first contract of sale made based on the Definitive Free Writing
Prospectus, you have not offered, pledged, sold, disposed of or otherwise
transferred any Certificate or any security backed by the Mortgage Loans, any
interest in any Certificate or such security or any Mortgage Loan except as set
forth in Section 4.2.
4.2 It is understood that the Underwriter will solicit offers to purchase
the Certificates as follows:
(a) Prior to the time you have received the Definitive Free Writing
Prospectus you may, in compliance with the provisions of this Agreement,
solicit offers to purchase Certificates; provided, that you shall not
accept any such offer to purchase a Certificate or any interest in any
Certificate or Mortgage Loan or otherwise enter into any Contract of Sale
for any Certificate, any interest in any Certificate or any Mortgage Loan
prior to the investor's receipt of Definitive Free Writing Prospectus.
(b) Any Free Writing Prospectus (other than the Definitive Free
Writing Prospectus) relating to the Certificates used by the Underwriter in
compliance with the terms of this Agreement prior to the time such
Underwriter has entered into a Contract of Sale for Certificates shall
prominently set forth substantially the following statement:
The information in this free writing prospectus is
preliminary, and will be superseded by the Definitive Free
Writing Prospectus. This free writing prospectus is being
delivered to you solely to provide you with information about
the offering of the Certificates referred to in this free
writing prospectus and to solicit an offer to purchase the
Certificates, when, as and if issued. Any such offer to
purchase made by you will not be accepted and will not
constitute a contractual commitment by you to purchase any of
the Certificates until we have accepted your offer to purchase
Certificates. We will not accept any offer by you to purchase
Certificates, and you will not have any contractual commitment
to purchase any of the Certificates until after you have
received the Definitive Free Writing Prospectus. You may
withdraw your offer to purchase Certificates at any time prior
to our acceptance of your offer.
"Written Communication" has the same meaning as that term is defined in Rule 405
of the 1933 Act Regulations.
(c) Any Free Writing Prospectus relating to Certificates and used by
the Underwriter in connection with marketing the Certificates, including
the Definitive Free Writing Prospectus, shall prominently set forth
substantially the following statement:
The Certificates referred to in these materials are being sold
when, as and if issued. You are advised that Certificates may
not be issued that have the characteristics described in these
materials. Our obligation to sell such Certificates to you is
conditioned on the mortgage loans and certificates having the
characteristics described in these materials. If for any
reason we do not deliver such Certificates, we will notify
you, and neither the issuer nor any underwriter will have any
obligation to you to deliver all or any portion of the
Certificates which you have committed to purchase, and none of
the issuer nor any underwriter will be liable for any costs or
damages whatsoever arising from or related to such
non-delivery.
4.3 It is understood that you will not enter into a Contract of Sale with
any investor until the investor has received the Definitive Free Writing
Prospectus. For purposes of this Agreement, Contract of Sale has the same
meaning as in Rule 159 of the 1933 Act Regulations and all Commission guidance
relating to Rule 159, including without limitation the Commission's statement in
Securities Act Release No. 33-8501 that "a contract of sale can occur under the
federal securities laws before there is a bilateral contract under state law,
for example when a purchaser has taken all actions necessary to be bound but a
seller's obligations remain conditional under state law." The Definitive Free
Writing Prospectus shall prominently set forth the following statement:
This Definitive Free Writing Prospectus supersedes
the information in any free writing prospectus
previously delivered in connection with this
offering, to the extent that this Definitive Free
Writing Prospectus is inconsistent with any
information in any free writing prospectus delivered
in connection with this offering.
4.4 It is understood that you may prepare and provide to prospective
investors certain Free Writing Prospectuses (as defined below), subject to the
following conditions:
(a) Unless preceded or accompanied by a prospectus satisfying the
requirements of Section 10(a) of the Act, the Underwriter shall not convey
or deliver any Written Communication to any person in connection with the
initial offering of the Certificates, unless such Written Communication
either (i) is made in reliance on Rule 134 under the Act, (ii) constitutes
a prospectus satisfying the requirements of Rule 430B under the Act, (iii)
is the Definitive Free Writing Prospectus, or (iv) both (1) constitutes a
Free Writing Prospectus (as defined below) used in reliance on Rule 164 and
(2) includes only information that is within the definition of ABS
Informational and Computational Materials as defined in Item 1100 of
Regulation AB.
(b) The Underwriter shall comply in all material respects with all
applicable laws and regulations in connection with the use of Free Writing
Prospectuses, including but not limited to Rules 164 and 433 of the 1933
Act Regulations and all Commission guidance relating to Free Writing
Prospectuses, including but not limited to Commission Release No. 33-8591.
(c) For purposes hereof, "Free Writing Prospectus" shall have the
meaning given such term in Rules 405 and 433 of the 1933 Act Regulations.
"Issuer Information" shall mean information included in a Free Writing
Prospectus that both (i) is within the types of information specified in
clauses (1) to (5) of footnote 271 of Commission Release No. 33-8591
(Securities Offering Reform) as shown in Exhibit G hereto and (ii) has been
either prepared by, or has been reviewed and approved by, the Company as
evidenced by oral, electronic or written communication by it or through its
attorneys. "Underwriter Derived Information" shall refer to information of
the type described in clause (5) of such footnote 271 when prepared by the
Underwriter.
(d) All Free Writing Prospectuses provided to prospective investors,
whether or not filed with the Commission, shall bear a legend on each page
including the following statement:
"THE DEPOSITOR HAS FILED A REGISTRATION STATEMENT
(INCLUDING A PROSPECTUS) WITH THE SEC FOR THE
OFFERING TO WHICH THIS COMMUNICATION RELATES. BEFORE
YOU INVEST, YOU SHOULD READ THE PROSPECTUS IN THAT
REGISTRATION STATEMENT AND OTHER DOCUMENTS THE ISSUER
HAS FILED WITH THE SEC FOR MORE COMPLETE INFORMATION
ABOUT THE ISSUER AND THE OFFERING. YOU MAY GET THESE
DOCUMENTS AT NO CHARGE BY VISITING ▇▇▇▇▇ ON THE SEC
WEB SITE AT ▇▇▇.▇▇▇.▇▇▇. ALTERNATIVELY, THE ISSUER,
ANY UNDERWRITER OR ANY DEALER PARTICIPATING IN THE
OFFERING WILL ARRANGE TO SEND YOU THE PROSPECTUS AT
NO CHARGE IF YOU REQUEST IT BY CALLING TOLL-FREE
1-8[XX-XXX-XXXX].
The Company shall have the right to require additional specific legends
or notations to appear on any Free Writing Prospectus, the right to
require changes regarding the use of terminology and the right to
determine the types of information appearing therein.
(e) The Underwriter shall have delivered to the Company, no later than
two business days prior to the proposed date of first use thereof, (i) any
Free Writing Prospectus prepared by or on behalf of that Underwriter that
contains any information that, if reviewed and approved by the Company,
would be Issuer Information, and (ii) any Free Writing Prospectus or
portion thereof that contains only a description of the final terms of the
Certificates after such terms have been established for all classes of
Certificates being publicly offered. No Information in any Free Writing
Prospectus shall consist of information of a type that is not included
within the definition of ABS Informational and Computational Materials. To
facilitate filing to the extent required by Section 5.10 or 5.11, as
applicable, all Underwriter Derived Information shall be set forth in a
document separate from the document including Issuer Information. All Free
Writing Prospectuses prepared by the Underwriter that are required to be
delivered to the Company under this subsection (e), (i) must be approved by
the Company before such Underwriter provides the Free Writing Prospectus to
investors pursuant to the terms of this Agreement (such approval to be
evidenced as set forth in Section 4.4(c)(ii)), and (ii) shall be provided
by such Underwriter to the Company, for filing as provided in Section 5.10
in the format as required by the Company.
(f) None of the information in the Free Writing Prospectuses may
conflict with the information contained in the Prospectus or the
Registration Statement.
(g) The Company shall not be obligated to file any Free Writing
Prospectuses that have been determined to contain any material error or
omission, unless the Company is required to file the Free Writing
Prospectus pursuant to Section 5.10 below. In the event that the
Underwriter possesses actual knowledge that, as of the date on which an
investor entered into an agreement to purchase any Certificates, any Free
Writing Prospectus prepared by or on behalf of such Underwriter and
delivered to such investor contained any untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements contained therein, in light of the circumstances under which
they were made, not misleading (such Free Writing Prospectus, a "Defective
Free Writing Prospectus"), that Underwriter shall notify the Company
thereof as soon as practical but in any event within one business day after
discovery.
(h) If the Underwriter do not provide any Free Writing Prospectuses to
the Company pursuant to subsection (e) above, the Underwriter shall be
deemed to have represented, as of the Closing Date, that they did not
provide any prospective investors with any information in written or
electronic form in connection with the offering of the Certificates that is
required to be filed with the Commission by the Company as a Free Writing
Prospectus (other than the Definitive Free Writing Prospectus) in
accordance with the 1933 Act Regulations. Information not required to be
filed shall include a Free Writing Prospectus containing solely Underwriter
Derived Information.
(i) In the event of any delay in the delivery by the Underwriter to
the Company of any Free Writing Prospectuses required to be delivered in
accordance with subsection (e) above, or in the delivery of the
accountant's comfort letter in respect thereof, the Company shall have the
right to delay the release of the Prospectus to investors or to the
Underwriter, to delay the Closing Date and to take other appropriate
actions in each case as necessary in order to allow the Company to comply
with its agreement set forth in Section 5.10 to file the Free Writing
Prospectuses by the time specified therein.
(j) The Underwriter represents that it has in place, and covenants
that it shall maintain internal controls and procedures which it reasonably
believes to be sufficient to ensure full compliance with all applicable
legal requirements of the 1933 Act Regulations with respect to the
generation and use of Free Writing Prospectuses in connection with the
offering of the Certificates. In addition, the Underwriter shall, for a
period of at least three years after the date hereof, maintain written
and/or electronic records of the following:
(i) Any written communications in respect of the Certificates not
deemed a Prospectus or a Free Writing Prospectus because its content
is limited to the statements permitted by Rule 134 of the Securities
Act;
(ii) any Free Writing Prospectus used to solicit offers to
purchase Certificates;
(iii) regarding each Free Writing Prospectus delivered to a
prospective investor, the date of such delivery and identity of such
prospective investor;
(iv) regarding each offer to purchase Certificates received by
such Underwriter, the identity of the offeror, the date the offer was
made and the proposed terms and allocation of the Certificates offered
to be purchased; and
(v) regarding each Contract of Sale entered into by such
Underwriter, the date, identity of the investor and the terms of such
Contract of Sale, including the amount and price of Certificates
subject to such Contract of Sale.
(k) The Underwriter covenants with the Company that after the final
Prospectus is available that Underwriter shall not distribute any written
information concerning the Certificates to a prospective investor unless
such information is preceded or accompanied by the final Prospectus.
(l) The Underwriter agrees to provide written notice to the Company of
the date it first enters into any Contract of Sale for a Certificate.
4.5 The Underwriter further agrees that on or prior to the sixth day after
the Closing Date, such Underwriter shall provide the Company with a certificate,
substantially in the form of Exhibit F attached hereto, setting forth (i) in the
case of each class of Certificates purchased by such Underwriter, (a) if less
than 10% of the aggregate principal balance or notional amount, as applicable,
of such class of Certificates has been sold to the public as of such date, the
value calculated pursuant to clause (b)(iii) of Exhibit F hereto, or, (b) if 10%
or more of such class of Certificates has been sold to the public as of such
date but no single price is paid for at least 10% of the aggregate principal
balance or notional amount, as applicable of such class of Certificates, then
the weighted average price at which the Certificates of such class were sold
expressed as a percentage of the principal balance or notional amount, as
applicable, of such class of Certificates sold, or (c) the first single price at
which at least 10% of the aggregate principal balance or notional amount, as
applicable, of such class of Certificates was sold to the public, (ii) the
prepayment assumption used in pricing such Certificates, and (iii) such other
information as to matters of fact as the Company may reasonably request to
enable it to comply with its reporting requirements with respect to such
Certificates to the extent such information can in the good faith judgment of
such Underwriter be determined by it.
4.6 The Underwriter further agrees that (i) it will include in every
confirmation sent out the notice required by Rule 173 informing the investor
that the sale was made pursuant to the Registration Statement and that the
investor may request a copy of the Prospectus from such Underwriter; (ii) if a
paper copy of the Prospectus is requested by a person who receives a
confirmation, such Underwriter shall deliver a paper copy of such Prospectus;
(iii) if an electronic copy of the Prospectus is delivered by the Underwriter
for any purpose, such copy shall be the same electronic file containing the
Prospectus in the identical form transmitted electronically to such Underwriter
by or on behalf of the Company specifically for use by such Underwriter pursuant
to this Section 4.6; for example, if the Prospectus is delivered to the
Underwriter by or on behalf of the Company in a single electronic file in .pdf
format, then such Underwriter will deliver the electronic copy of the Prospectus
in the same single electronic file in .pdf format; and (iv) it has not used, and
during the period for which it has an obligation to deliver a "prospectus" (as
defined in Section 2(a)(10) of the Act) relating to the Certificates (including
any period during which you have such delivery obligation in its capacity as a
"dealer" (as defined in Section 2(a)(12) of the Act)) it will not use any
internet website or electronic media containing information for prospective
investors, including any internet website or electronic media maintained by
third parties, in connection with the offering of the Certificates, except in
compliance with applicable laws and regulations. The Underwriter further agrees
that (i) if it delivers to an investor the Prospectus in .pdf format, upon such
Underwriter's receipt of a request from the investor within the period for which
delivery of the Prospectus is required, such Underwriter will promptly deliver
or cause to be delivered to the investor, without charge, a paper copy of the
Prospectus and (ii) it will provide to the Company any Free Writing
Prospectuses, or portions thereof, which the Company is required to file with
the Commission in electronic format and will use reasonable efforts to provide
to the Company such Free Writing Prospectuses, or portions thereof, in either
Microsoft Word(R) or Microsoft Excel(R) format and not in a PDF, except to the
extent that the Company, in its sole discretion, waives such requirements.
4.7 In the event that the Underwriter uses a road show (as defined in Rule
433) in connection with the offering of the Certificates, all information in the
road show will be provided orally only, and not as a Written Communication. The
Underwriter agrees that any slideshow used in connection with a road show (i)
will only be provided as part of the road show and not separately, (ii) if
handed out at any meeting as a hard copy, will be retrieved prior to the end of
the meeting, and (iii) will otherwise be used only in a manner that does not
cause the slideshow to be treated as a Free Writing Prospectus.
5. Agreements. The Company agrees with you that:
5.1 Before amending or supplementing the Registration Statement or the
Prospectus with respect to the Certificates, the Company will furnish you with a
copy of each such proposed amendment or supplement.
5.2 The Company will cause the Prospectus Supplement to be transmitted to
the Commission for filing pursuant to Rule 424(b) under the Act by means
reasonably calculated to result in filing with the Commission pursuant to said
rule.
5.3 If, during the period after the first date of the public offering of
the Certificates in which a prospectus relating to the Certificates is required
to be delivered under the Act, any event occurs as a result of which it is
necessary to amend or supplement the Prospectus, as then amended or
supplemented, in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not misleading,
or if it shall be necessary to amend or supplement the Prospectus to comply with
the Act or the 1933 Act Regulations, the Company promptly will prepare and
furnish, at its own expense, to you, either amendments or supplements to the
Prospectus so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the Prospectus is
delivered to a purchaser, be misleading or so that the Prospectus will comply
with law.
5.4 If the Company or any Underwriter reasonably determines that any
Written Communication or oral statement in connection with the offering of the
Certificates contains an untrue statement of material fact or omits to state a
material fact necessary to make the statements, in light of the circumstances
under which they were made, not misleading at the time that a Contract of Sale
was entered into when taken together with all information that was conveyed to
any person with whom a Contract of Sale was entered into, and then the
Underwriter shall provide any such person with the following:
(a) Adequate disclosure of the contractual arrangement;
(b) Adequate disclosure of the person's rights under the existing
Contract of Sale at the time termination is sought;
(c) Adequate disclosure of the new information that is necessary to
correct the misstatements or omissions in the information given at the time
of the original Contract of Sale; and
(d) A meaningful ability to elect to terminate or not terminate the
prior Contract of Sale and to elect to enter into or not enter into a new
Contract of Sale.
5.5 The Company will furnish to you, without charge, a copy of the
Registration Statement (including exhibits thereto) and, so long as delivery of
a prospectus by an underwriter or dealer may be required by the Act, as many
copies of the Prospectus, any documents incorporated by reference therein and
any amendments and supplements thereto as you may reasonably request.
5.6 The Company agrees, so long as the Certificates shall be outstanding,
or until such time as you shall cease to maintain a secondary market in the
Certificates, whichever first occurs, to deliver to you the annual statement as
to compliance delivered to the Trustee pursuant to Section 3.19 of the Pooling
and Servicing Agreement and the annual statement of a firm of independent public
accountants furnished to the Trustee pursuant to Section 3.20 of the Pooling and
Servicing Agreement, as soon as such statements are furnished to the Company.
5.7 The Company will endeavor to arrange for the qualification of the
Certificates for sale under the laws of such jurisdictions as you may reasonably
designate and will maintain such qualification in effect so long as required for
the initial distribution of the Certificates; provided, however, that the
Company shall not be required to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action that would subject it to
general or unlimited service of process in any jurisdiction where it is not now
so subject.
5.8 If the transactions contemplated by this Agreement are consummated, the
Company will pay or cause to be paid all expenses incident to the performance of
the obligations of the Company under this Agreement, and will reimburse you for
any reasonable expenses (including reasonable fees and disbursements of counsel)
reasonably incurred by you in connection with qualification of the Certificates
for sale and determination of their eligibility for investment under the laws of
such jurisdictions as you have reasonably requested pursuant to Section 5.6
above and the printing of memoranda relating thereto, for any fees charged by
investment rating agencies for the rating of the Certificates, and for expenses
incurred in distributing the Prospectus (including any amendments and
supplements thereto) to the Underwriter. Except as herein provided, you shall be
responsible for paying all costs and expenses incurred by you, including the
fees and disbursements of your counsel, in connection with the purchase and sale
of the Certificates.
5.9 If, during the period after the Closing Date in which a prospectus
relating to the Certificates is required to be delivered under the Act, the
Company receives notice that a stop order suspending the effectiveness of the
Registration Statement or preventing the offer and sale of the Certificates is
in effect, the Company will advise you of the issuance of such stop order.
5.10 The Company shall file, to the extent required to be filed, any Free
Writing Prospectus prepared by the Company (including the Definitive Free
Writing Prospectus), and any Issuer Information contained in any Free Writing
Prospectus provided to it by the Underwriter under Section 4.4(e), not later
than the date of first use of the Free Writing Prospectus, except that:
(a) As to any Free Writing Prospectus or portion thereof required to
be filed that contains only the description of the final terms of the
Certificates after such terms have been established for all classes of
Certificates being publicly offered, such Free Writing Prospectus or
portion thereof may be filed by the Company within two days of the later of
the date such final terms have been established for all classes of
Certificates being publicly offered and the date of first use; and
(b) Notwithstanding clause (a) above, as to any Free Writing
Prospectus or portion thereof required to be filed that contains only
information of a type included within the definition of ABS Informational
and Computational Materials, the Company shall file such Free Writing
Prospectus or portion thereof within the later of two business days after
any Underwriter first provides this information to investors and the date
upon which the Company is required to file the Prospectus Supplement with
the Commission pursuant to Rule 424(b)(3) of the Act;
provided further, that prior to such use of any Free Writing Prospectuses by the
Company, the Underwriter must comply with its obligations pursuant to Section
4.4 and that the Company shall not be required to file any Free Writing
Prospectus that does not contain substantive changes from or additions to a Free
Writing Prospectus previously filed with the Commission.
5.11 The Underwriter shall file any Free Writing Prospectus (other than a
Free Writing Prospectus that is covered by Section 5.10) that has been
distributed by such Underwriter in a manner that could lead to its broad,
unrestricted dissemination not later than the date of first use, provided that
if that Free Writing Prospectus contains only information of a type included
within the definition of ABS Informational and Computational Materials then such
filing shall be made within the later of two business days after the Underwriter
first provide this information to investors and the date upon which the Company
is required to file the Prospectus Supplement with the Commission pursuant to
Rule 424(b)(3) of the Act; provided further, that the Underwriter shall not be
required to file any Free Writing Prospectus that does not contain substantive
changes from or additions to a Free Writing Prospectus previously filed with the
Commission.
5.12 During the period when a prospectus is required by law to be delivered
in connection with the sale of the Certificates pursuant to this Agreement, the
Issuer will file or cause to be filed, on a timely and complete basis, all
documents that are required to be filed by the Issuer with the Commission
pursuant to Section 13, 14 or 15(d) of the Exchange Act (as defined below).
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITER. The Underwriter's
obligation to purchase the Certificates shall be subject to the following
conditions:
6.1 No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for that purpose shall be
pending or, to the knowledge of the Company, threatened by the Commission; and
the Prospectus Supplement shall have been filed or transmitted for filing, by
means reasonably calculated to result in a filing with the Commission pursuant
to Rule 424(b) under the Act.
6.2 Subsequent to the respective dates as of which information is given in
the Registration Statement and the Prospectus, there shall not have been any
change, or any development involving a prospective change, in or affecting the
business or properties of the Company, ____________________, a ____________ (the
"Seller") or any of their respective affiliates the effect of which, in any
case, is, in that Underwriter's reasonable judgment, so material and adverse as
to make it impracticable or inadvisable to proceed with the offering or the
delivery of the Certificates as contemplated by the Registration Statement and
the Prospectus. All actions required to be taken and all filings required to be
made by the Issuer under the Act and the Exchange Act prior to the sale of the
Certificates shall have been duly taken or made.
6.3 The Company shall have delivered to you a certificate, dated the
Closing Date, of the President or the Executive Vice President of the Company to
the effect that the signer of such certificate has examined this Agreement, the
Prospectus, the Pooling and Servicing Agreement and various other closing
documents, and that, to the best of his or her knowledge after reasonable
investigation:
(a) the representations and warranties of the Company in this
Agreement and in the Pooling and Servicing Agreement are true and correct
in all material respects;
(b) the Company has, in all material respects, complied with all the
agreements and satisfied all the conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date;
(c) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are contemplated;
(d) subsequent to the respective dates as of which information is
given in the Prospectus, and except as set forth or contemplated in the
Prospectus, there has not been any material adverse change in the general
affairs, business, key personnel, capitalization, financial condition or
results of operations of the Company or the Seller;
(e) except as otherwise stated in the Prospectus, there are no
actions, suits or proceedings pending before any court or governmental
agency, authority or body or, to their knowledge, threatened, against the
Company or the Seller that could reasonably have a material adverse affect
on (i) the Company or the Seller or (ii) the transactions contemplated by
this Agreement; and
(f) attached thereto are true and correct copies of a letter or
letters from one or more nationally recognized statistical rating agencies
confirming that the Certificates have been rated in one of the four highest
grades by each of such agencies rating that class of Certificates and that
such rating has not been lowered since the date of such letter.
6.4 You shall have received the opinions of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP,
special counsel for the Company, dated the Closing Date and substantially to the
effect set forth in Exhibit A and Exhibit B.
6.5 You shall have received from counsel for the Underwriter, an opinion
dated the Closing Date in form and substance satisfactory to the Underwriter.
6.6 The Underwriter shall have received from certified public accountants,
a letter dated the date hereof and satisfactory in form and substance to the
Underwriter and the Underwriter's counsel, to the effect that they have
performed certain specified procedures, all of which have been agreed to by the
Underwriter, as a result of which they determined that certain information of an
accounting, financial or statistical nature set forth in the Definitive Free
Writing Prospectus and the Prospectus Supplement under the captions "Description
of the Mortgage Pool", "Pooling and Servicing Agreement", "Description of the
Certificates" and "Certain Yield and Prepayment Considerations" agrees with the
records of the Company excluding any questions of legal interpretation.
6.7 The Certificates shall have been rated "AAA" by [each of] [Standard &
Poor's Ratings Services] and [Fitch Ratings] and "Aaa" by [▇▇▇▇▇'▇ Investors
Service, Inc.].
6.8 You shall have received the opinion of [Trustee's Counsel], dated the
Closing Date, substantially to the effect set forth in Exhibit C.
6.9 You shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special
counsel to the Company, and from in-house counsel to the Company, reliance
letters with respect to any opinions delivered to [Standard & Poor's Ratings
Services] and [Fitch Ratings] and [▇▇▇▇▇'▇ Investors Service, Inc.].
The Company will furnish you with conformed copies of the
above opinions, certificates, letters and documents as you reasonably request.
7. INDEMNIFICATION AND CONTRIBUTION.
7.1 (a) The Company agrees to indemnify and hold harmless the
Underwriter and each person, if any, who controls the Underwriter within
the meaning of either Section 15 of the Act or Section 20 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), from and against any
and all losses, claims, damages, expenses (as incurred) and liabilities to
which the Underwriter or they may become subject under the Act, the
Exchange Act, or other federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages, expenses
or liabilities (or actions in respect thereof) arise out of or are based
upon or are caused by any untrue statement or alleged untrue statement of a
material fact contained in the Definitive Free Writing Prospectus, or in
any Issuer Information contained in any other Free Writing Prospectus, or
in any Underwriter Derived Information to the extent caused by any error in
the Pool Information, or in the Registration Statement for the registration
of the Certificates as originally filed or in any amendment thereof or
other filing incorporated by reference therein, or in the Prospectus or any
amendment thereof or other filing incorporated by reference therein, or
arise out of or are based upon any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading, and agrees to reimburse each such indemnified
party for any legal or other expenses reasonably incurred by it or him in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that none of the Company shall be
liable to the Underwriter or any person who controls the Underwriter to the
extent that any misstatement or alleged misstatement or omission or alleged
omission is based upon any information with respect to which the
Underwriter have agreed to indemnify the Company pursuant to Section 7.2.
(b) The Company agrees to indemnify and hold harmless the Underwriter
and each person, if any, who controls the Underwriter within the meaning of
either Section 15 of the Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities caused by
errors in the Pool Information.
7.2 You agree to indemnify, hold harmless and reimburse the Company, each
of the directors and officers who signed the Registration Statement and any
person controlling the Company or to the same extent as the indemnity set forth
in clause 7.1 above from the Company to the Underwriter; provided, however, that
the Underwriter shall be liable for losses, claims, damages, expenses and
liabilities only to the extent that they arise out of or are based upon (i) the
Underwriter' Information, (ii) any Underwriter Derived Information, except to
the extent of any errors in any Underwriter Derived Information that are caused
by errors in the Pool Information, (iii) any Free Writing Prospectus for which
the conditions set forth in Section 4.4(e) above are not satisfied with respect
to the prior approval by the Company, (iv) any portion of any Free Writing
Prospectus (other than the Definitive Free Writing Prospectus) not constituting
Issuer Information, (v) any liability resulting from your failure to provide any
investor with the Definitive Free Writing Prospectus prior to entering into a
Contract of Sale with such investor or failure to file any Free Writing
Prospectus required to be filed by the Underwriter in accordance with Section
5.11, and (vi) any liability resulting from your failure to comply with Section
4.7 in connection with any road show. This indemnity agreement will be in
addition to any liability which the Underwriter may otherwise have.
7.3 In case any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity may be sought
pursuant to either clause 7.1 or 7.2, such person (the "indemnified party")
shall promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the reasonable
fees and disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the reasonable fees and expenses of such counsel shall be at the
expense of such indemnified party unless (1) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm for all such indemnified parties. Such
firm shall be designated in writing by you, in the case of parties indemnified
pursuant to clause 7. 1 and by the Company, in the case of parties indemnified
pursuant to clause 7.2. The indemnifying party may, at its option, at any time
upon written notice to the indemnified party, assume the defense of any
proceeding and may designate counsel reasonably satisfactory to the indemnified
party in connection therewith provided that the counsel so designated would have
no actual or potential conflict of interest in connection with such
representation. Unless it shall assume the defense of any proceeding the
indemnifying party shall not be liable for any settlement of any proceeding,
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. If the indemnifying party assumes the defense of
any proceeding, it shall be entitled to settle such proceeding with the consent
of the indemnified party or, if such settlement provides for release of the
indemnified party in connection with all matters relating to the proceeding
which have been asserted against the indemnified party in such proceeding by the
other parties to such settlement, without the consent of the indemnified party.
7.4 If the indemnification provided for in this Section 7 is unavailable to
an indemnified party under clause 7.1 or 7.2 hereof or insufficient in respect
of any losses, claims, damages or liabilities referred to therein, then the
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities, in such proportion as is
appropriate to reflect not only the relative benefits received by the Company on
the one hand and the Underwriter on the other from the offering of the
Certificates but also the relative fault of the Company on the one hand and of
the Underwriter, 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 fault of the Company on
the one hand and of the Underwriter on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by the Underwriter, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
7.5 The Company and the Underwriter agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the considerations referred to in clause 7.4, above. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in this Section 7 shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim except where the indemnified party is required to bear such
expenses pursuant to clause 7.4; which expenses the indemnifying, party shall
pay as and when incurred, at the request of the indemnified party, to the extent
that the indemnifying party believes that it will be ultimately obligated to pay
such expenses. In the event that any expenses so paid by the indemnifying party
are subsequently determined to not be required to be borne by the indemnifying
party hereunder, the party which received such payment shall promptly refund the
amount so paid to the party which made such payment. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
7.6 The indemnity and contribution agreements contained in this Section 7
and the representations and warranties of the Company in this Agreement shall
remain operative and in full force and effect regardless (i) any termination of
this Agreement, (ii) any investigation made by the Underwriter or on behalf of
the Underwriter or any person controlling the Underwriter or by or on behalf of
the Company and its respective directors or officers or any person controlling
the Company and (iii) acceptance of and payment for any of the Certificates.
8. TERMINATION. This Agreement shall be subject to termination by notice
given to the Company, if the sale of the Certificates provided for herein is not
consummated because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company shall be unable to perform their respective
obligations under this Agreement. If you terminate this Agreement in accordance
with this Section 8, the Company will reimburse you for all reasonable
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been reasonably incurred by the Underwriter in connection with
the proposed purchase and sale of the Certificates.
9. CERTAIN REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or the officers of the Company, and you set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation, or statement as to the results thereof, made by you or on your
behalf or made by or on behalf of the Company or any of its officers, directors
or controlling persons, and will survive delivery of and payment for the
Certificates.
10. NOTICES. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Underwriter will be mailed, delivered or
telegraphed and confirmed to you at
____________________________________________________, Attention:
_______________________or if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at
[___________________________________________________].
11. SUCCESSORS. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7 hereof, and their
successors and assigns, and no other person will have any right or obligation
hereunder.
12. APPLICABLE LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
13. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, of which shall be deemed an original, which taken together shall
constitute one and the same instrument.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
letter and your acceptance shall represent a binding agreement between the
Company and you.
Very truly yours,
OPTEUM MORTGAGE
ACCEPTANCE CORP.
By:____________________________________
Name:
Title: Chief Executive Officer
The foregoing Underwriting
Agreement is hereby confirmed
and accepted as of the
date first above written.
[NAME OF UNDERWRITER]
By:____________________________________
Name:
Title:
EXHIBIT A
[▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP LETTERHEAD]
______________ ___, ____
Opteum Mortgage Acceptance Corp. [Underwriter]
[*Address] ________________________
______________________
[Name of Master Servicer] [Trustee]
[Address of Master Servicer] _______________________
_______________________
Opinion: Underwriting Agreement
Opteum Mortgage Acceptance Corp.
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES ____-__
Ladies and Gentlemen:
We have acted as counsel to Opteum Mortgage Acceptance Corp. (the
"Company") in connection with the issuance and sale by the Company of Mortgage
Pass-Through Certificates, Series ____- ____ (the "Certificates"), pursuant to
the Pooling and Servicing Agreement, dated as of _______________ 1, ____ (the
"Pooling and Servicing Agreement"), among the Company, [Name of Master
Servicer], as master servicer (the "Master Servicer") and [Name of Trustee], as
trustee (the "Trustee"). The Certificates consist of ____________ classes
designated as Class A and Class R (collectively, the "Senior Certificates") and
____________ classes of subordinated certificates designated as Class M and
Class B. Only the Senior Certificates and the Class M Certificates
(collectively, the "Offered Certificates") are being offered under the
Prospectus, dated ________, and the Prospectus Supplement, dated ___________
(the Prospectus Supplement together with the Prospectus, the "Prospectus").
The Senior Certificates in the aggregate and the Class M Certificates
will evidence initial undivided ownership interests, in a trust fund (the "Trust
Fund") consisting primarily of a pool of one- to four-family first mortgage
loans (the "Mortgage Loans") held by [Name of Custodian], as custodian (the
"Custodian"), pursuant to the Custodial Agreement, dated as of _______________
1, ____, among the Company, the Master Servicer, the Custodian and the Trustee
(the "Custodial Agreement"). ______________________ (the "Purchaser") acquired
the Mortgage Loans through its mortgage loan purchase program from various
seller/servicers. The Purchaser transferred the Mortgage Loans to the Company
pursuant to the Assignment and Assumption Agreement, dated _________ __, ____
(the "Assignment and Assumption Agreement"), in exchange for immediately
available funds, and the Class M and Class B Certificates. The Company will sell
the Class A and the Class R Certificates other than a de minimis portion thereof
(the "Underwritten Certificates") to _______________________ (the
"Underwriter"), pursuant to the Underwriting Agreement, dated _____________ __,
____, between the Company and the Underwriter (the "Underwriting Agreement"; the
Pooling and Servicing Agreement, the Custodial Agreement, the Underwriting
Agreement and the Assignment and Assumption Agreement, collectively, the
"Agreements"). Capitalized terms not defined herein have the meanings ascribed
to them in the Agreements. This opinion letter is rendered pursuant to Section
6.4 of the Underwriting Agreement.
In rendering this opinion letter, we have examined the documents
described above and such other documents as we have deemed necessary including,
where we have deemed appropriate, representations or certifications of officers
of parties thereto or public officials. In rendering this opinion letter, except
for the matters that are specifically addressed in the opinions expressed below,
we have assumed (i) the authenticity of all documents submitted to us as
originals and the conformity to the originals of all documents submitted to us
as copies, (ii) the necessary entity formation and continuing existence in the
jurisdiction of formation, and the necessary licensing and qualification in all
jurisdictions, of all parties to all documents, (iii) the necessary
authorization, execution, delivery and enforceability of all documents, and the
necessary entity power with respect thereto and (iv) that there is not any other
agreement that modifies or supplements the agreements expressed in the documents
to which this opinion letter relates and that renders any of the opinions
expressed below inconsistent with such documents as so modified or supplemented.
In rendering this opinion letter, we have made no inquiry, have conducted no
investigation and assume no responsibility with respect to (a) the accuracy of
and compliance by the parties thereto with the representations, warranties and
covenants contained in any document or (b) the conformity of the underlying
assets and related documents to the requirements of the agreements to which this
opinion letter relates.
Our opinions set forth below with respect to the enforceability of any
right or obligation under any agreement are subject to (i) general principles of
equity, including concepts of materiality, reasonableness, good faith and fair
dealings and the possible unavailability of specific performance and injunctive
relief, regardless of whether considered in a proceeding in equity or at law,
(ii) the effect of certain laws, regulations and judicial and other decisions
upon the availability and enforceability of certain covenants, remedies and
other provisions, including the remedies of specific performance and self-help
and provisions imposing penalties and forfeitures and waiving objections to
venue and forum, (iii) bankruptcy, insolvency, receivership, reorganization,
liquidation, voidable preference, fraudulent conveyance and transfer, moratorium
and other similar laws affecting the rights of creditors or secured parties and
(iv) public policy considerations underlying the securities laws, to the extent
that such public policy considerations limit the enforceability of the
provisions of any agreement which purport or are construed to provide
indemnification with respect to securities law violations. Wherever we indicate
that our opinion with respect to the existence or absence of facts is based on
our knowledge, our opinion is based solely on the current actual knowledge of
the attorneys in this firm who are involved in the representation of parties to
the transactions described herein. In that regard we have conducted no special
or independent investigation of factual matters in connection with this opinion
letter.
In rendering this opinion letter, we do not express any opinion
concerning any law other than the federal laws of the United States, the laws of
the State of New York and the [laws of the State of Delaware]. We do not express
any opinion with respect to the securities laws of any jurisdiction or any other
matter not specifically addressed in the opinions expressed below.
Based upon and subject to the foregoing, it is our opinion that:
1. The Registration Statement has become effective under the 1933 Act, and,
to our knowledge, no stop order suspending the effectiveness of the Registration
Statement has been issued and not withdrawn, and no proceedings for that purpose
have been instituted or threatened under Section 8(d) of the 1933 Act.
2. The Registration Statement as of the date of the Prospectus Supplement
and the date hereof, and the Prospectus as of the date of the Prospectus
Supplement and the date hereof, other than any financial or statistical
information, Computational Materials and ABS Term Sheets contained or
incorporated by reference therein, as to which we express no opinion herein,
complied as to form in all material respects with the requirements of the Act
and the applicable rules and regulations thereunder.
3. To our knowledge, there are no material contracts, indentures or other
documents of a character required to be described or referred to in either the
Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement, other than Computational Materials and ABS Term Sheets
as to which we express no opinion herein, and those described or referred to
therein or filed or incorporated by reference as exhibits thereto.
4. The statements made in the Prospectus under the heading "Description of
the Securities," insofar as such statements purport to summarize certain
provisions of the Offered Certificates and the Pooling and Servicing Agreement,
provide a fair summary of such provisions. The statements made in the Basic
Prospectus and the Prospectus Supplement, as the case may be, under the headings
"Federal Income Tax Consequences," "Certain Legal Aspects of Mortgage
Loans--Applicability of Usury Laws" and "--Alternative Mortgage Instruments" and
"ERISA Considerations," to the extent that they constitute matters of State of
New York or federal law or legal conclusions with respect thereto, while not
purporting to discuss all possible consequences of investment in the Offered
Certificates, are correct in all material respects with respect to those
consequences or matters that are discussed therein.
5. The Offered Certificates, assuming the execution, authentication and
delivery thereof in accordance with the Pooling and Servicing Agreement and the
delivery thereof and payment therefor in accordance with the Underwriting
Agreement, are validly issued and outstanding and are entitled to the benefits
of the Pooling and Servicing Agreement.
6. The Pooling and Servicing Agreement is not required to be qualified
under the Trust Indenture Act of 1939, as amended. The Trust Fund created by the
Pooling and Servicing Agreement is not an "investment company" or "controlled
by" an "investment company" within the meaning of the Investment Company Act of
1940, as amended.
7. The Class A Certificates will be "mortgage related securities" as
defined in Section 3(a)(41) of the 1934 Act, as amended, so long as such class
is rated in one of the two highest rating categories by at least one "nationally
recognized statistical rating organization" as that term is used in that
Section.
8. Assuming compliance with the provisions of the Pooling and Servicing
Agreement, for federal income tax purposes, REMIC I and REMIC II will each
qualify as a real estate mortgage investment conduit ("REMIC") within the
meaning of Sections 860A through 860G (the "REMIC Provisions") of the Internal
Revenue Code of 1986, the Class R-I Certificates will constitute the sole class
of "residual interests" in REMIC I, each class of Offered Certificates will
represent ownership of "regular interests" in REMIC II and will generally be
treated as debt instruments of REMIC II and the Class R-II Certificates will
constitute the sole class of "residual certificates" in REMIC II, within the
meaning of the REMIC Provisions in effect on the date hereof.
9. Assuming compliance with the provisions of the Pooling and Servicing
Agreement, for City and State of New York income and corporation franchise tax
purposes, REMIC I and REMIC II will each be classified as a REMIC and not as a
corporation, partnership or trust, in conformity with the federal income tax
treatment of the Trust Fund. Accordingly, REMIC I and REMIC II will be exempt
from all City and State of New York taxation imposed on its income, franchise or
capital stock, and its assets will not be included in the calculation of any
franchise tax liability.
This opinion letter is rendered for the sole benefit of each addressee
hereof, and no other person or entity is entitled to rely hereon. Copies of this
opinion letter may not be made available, and this opinion letter may not be
quoted or referred to in any other document made available, to any other person
or entity except to (i) any applicable rating agency, credit enhancer or
governmental authority, (ii) any accountant or attorney for any person or entity
entitled hereunder to rely hereon or to whom or which this opinion letter may be
made available as provided herein or (iii) as otherwise required by law.
Very truly yours,
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇, LLP
EXHIBIT B
[▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LETTERHEAD]
______________ ___, ____
Supplemental Letter: Underwriting Agreement
Opteum Mortgage Acceptance Corp.
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES ____-_____
Ladies and Gentlemen:
We have acted as counsel to Opteum Mortgage Acceptance Corp.. (the
"Company") in connection with the issuance and sale by the Company of Mortgage
Pass-Through Certificates, Series ____- ____ (the "Certificates"), pursuant to
the Pooling and Servicing Agreement, dated as of _______________ 1, ____ (the
"Pooling and Servicing Agreement"), among the Company, [Name of Master
Servicer], as master servicer (the "Master Servicer") and [Name of Trustee], as
trustee (the "Trustee"). The Certificates consist of ____________ classes
designated as Class A and Class R (collectively, the "Senior Certificates") and
____________ classes of subordinated certificates designated as Class M and
Class B. Only the Senior Certificates and the Class M Certificates
(collectively, the "Offered Certificates") are being offered under the
Prospectus, dated _____________, and the Prospectus Supplement, dated
______________ (the Prospectus Supplement together with the Prospectus, the
"Prospectus").
The Senior Certificates in the aggregate and the Class M Certificates
will evidence initial undivided ownership interests, in a trust fund (the "Trust
Fund") consisting primarily of a pool of one- to four-family first mortgage
loans (the "Mortgage Loans") held by [Name of Custodian], as custodian (the
"Custodian"), pursuant to the Custodial Agreement, dated as of _______________
1, ____, among the Company, the Master Servicer, the Custodian and the Trustee
(the "Custodial Agreement"). [Name of Purchaser] (the "Purchaser") acquired the
Mortgage Loans through its mortgage loan purchase program from various
seller/servicers. The Purchaser transferred the Mortgage Loans to the Company
pursuant to the Assignment and Assumption Agreement, dated _________ __, ____
(the "Assignment and Assumption Agreement"), in exchange for immediately
available funds, and the Class M and Class B Certificates. The Company will sell
the Class A and the Class R Certificates other than a de minimis portion thereof
(the "Underwritten Certificates") to [Name of Underwriter] (the "Underwriter"),
pursuant to the Underwriting Agreement, dated _____________ __, ____, between
the Company and the Underwriter (the "Underwriting Agreement"; the Pooling and
Servicing Agreement, the Custodial Agreement, the Underwriting Agreement and the
Assignment and Assumption Agreement, collectively, the "Agreements").
Capitalized terms not defined herein have the meanings ascribed to them in the
Agreements. This opinion letter is rendered pursuant to Section 6.4 of the
Underwriting Agreement.
The primary purpose of our professional engagement was to advise with
respect to legal matters and not to establish factual matters. Many
determinations involved in the preparation of the Prospectus Supplement were
factual. However, at the request of the Seller we reviewed the information
contained in the Prospectus Supplement (other than the information presented in
tabular form) under the captions "SUMMARY OF PROSPECTUS SUPPLEMENT--THE MORTGAGE
LOANS," "RISK FACTORS" and "THE MORTGAGE POOL" (collectively, the
"Information"). We were not engaged to and did not review any other portion of
the Prospectus Supplement or any portion of the Prospectus, and we did not
prepare any of the documents evidencing, or close, any of the Mortgage Loans.
We have not otherwise undertaken any procedures that were intended or
likely to elicit information concerning the accuracy, completeness or fairness
of the Information other than as provided below. We are not otherwise advising
in this letter with respect to the accuracy, completeness or fairness of
statistical, accounting or other financial information contained in the
Information or not contained in the Information and from which the Information
was derived. It is our position that we are not "experts" within the meaning of
Section 11 of the Securities Act of 1933, or "persons" within the meaning of
Section 11(a)(4) thereof, with respect to any portion of the Prospectus
Supplement or the Prospectus, including without limitation such accounting,
financial and statistical information.
Based upon and subject to the foregoing, this is to inform you that no
information has come to the attention of the attorneys in this firm who are
involved in the representation of the Seller in this matter that causes us to
believe that the Information, as of the date of the Prospectus Supplement or
hereof, contained or contains any untrue statement of a material fact or omitted
or omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
This letter is rendered for the sole benefit of each addressee hereof,
and no other person or entity is entitled to rely hereon. Copies of this letter
may not be made available, and this letter may not be quoted or referred to in
any other document made available, to any other person or entity except to (i)
any applicable rating agency, credit enhancer or governmental authority, (ii)
any accountant or attorney for any person or entity entitled hereunder to rely
hereon or to whom or which this letter may be made available as provided herein
or (iii) as otherwise required by law.
Very truly yours,
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇, LLP
EXHIBIT C
[TRUSTEE'S COUNSEL'S LETTERHEAD]
_______________ __, ____
[Underwriter] [Name of Master Servicer]
______________________ [Address of Master Servicer]
______________________
Opteum Mortgage Acceptance Corp. [Trustee]
[*Address] ______________________
______________________
Re: Opteum Mortgage Acceptance Corp.
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES ____-__
Ladies and Gentlemen:
In connection with the issuance of the above-referenced Certificates
pursuant to the Pooling and Servicing Agreement, dated as of ____________ 1,
_____ (the "Pooling and Servicing Agreement"), among Opteum Mortgage Acceptance
Corp., as Company, [Name of Master Servicer], as Master Servicer and [Name of
Trustee], as Trustee (the "Trustee"), we have been asked to furnish this
opinion. Capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Pooling and Servicing Agreement.
In arriving at the opinions expressed below, we have examined and
relied upon the originals or copies, certified or otherwise identified to our
satisfaction, of the Pooling and Servicing Agreement and of such documents,
instruments and certificates, and we have made such investigations of law, as we
have deemed appropriate as the basis for the opinions expressed below. We have
assumed but have not verified that the signatures on all documents that we have
examined are genuine and that each person signing each such document was duly
authorized to sign such document on behalf of the person or entity purported to
be bound thereby.
Based on the foregoing, we are of the opinion that:
1. The Trustee has full corporate power and authority to execute
and deliver the Pooling and Servicing Agreement, the Custodial
Agreement and the Certificates and to perform its obligations
under the Pooling and Servicing Agreement and the Custodial
Agreement.
2. Each of the Pooling and Servicing Agreement and the Custodial
Agreement has been duly authorized, executed and delivered by
the Trustee, and the Trustee has duly executed and delivered
the Certificates as provided in the Pooling and Servicing
Agreement.
3. The Pooling and Servicing Agreement is a legal, valid and
binding obligation of the Trustee, enforceable against the
Trustee in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium,
receivership and similar laws affecting the rights of
creditors generally, and subject, as to enforceability, to
general principles of equity, regardless of whether such
enforcement is considered in a proceeding at law or in equity.
We express no opinion as to the laws of any jurisdiction other than the
laws of the State of New York.
We are furnishing this opinion to you solely for your benefit. This
opinion may not be used, circulated, quoted or otherwise referred to for any
other purpose.
Very truly yours,
_____________________
EXHIBIT D
Excluded Information
EXHIBIT E
Underwriter Information
EXHIBIT F
_______________, 200_
Opteum Mortgage Acceptance Corp.
[*Address]
Re: Opteum Mortgage Acceptance Corp.,
Mortgage Pass-Through Certificates,
Series 200_-__,Class A and Class R
Pursuant to Section 4 of the Underwriting Agreement, dated
_______________ 200_, between Opteum Mortgage Acceptance Corp. and
________________________ (the "Underwriter") relating to the Certificates
referenced above, the undersigned does hereby certify that:
(a) The prepayment assumption used in pricing the Certificates was _____%
[___].
(b) Set forth below is (i) the first price, as a percentage of the
principal balance or notional amount, as applicable, of each class of
Certificates, at which 10% of the aggregate principal balance or
notional amount, as applicable, of each such class of Certificates was
sold to the public at a single price, if applicable, or (ii) if 10% or
more of a class of Certificates have been sold to the public but no
single price is paid for at least 10% of the aggregate principal
balance or notional amount, as applicable, of such class of
Certificates, then the weighted average price at which the
Certificates of such class were sold expressed as a percentage of the
principal balance or notional amount, as applicable, of such class of
Certificates, or (iii) if less than 10% of the aggregate principal
balance or notional amount, as applicable, of a class of Certificates
has been sold to the public, the purchase price for each such class of
Certificates paid by the Underwriter expressed as a percentage of the
principal balance or notional amount, as applicable, of such class of
Certificates calculated by: (1) estimating the fair market value of
each such class of Certificates not sold to the public as of
_________, 200_; (2) adding such estimated fair market value to the
aggregate purchase price of each class of Certificates actually sold
to the public as of such date; (3) dividing each of the fair market
values determined in clause (1) by the sum obtained in clause (2); (4)
multiplying the quotient obtained for each class of Certificates in
clause (3) by the purchase price paid by the Underwriter for all the
Certificates of each class; and (5) for each class of Certificates,
dividing the product obtained for such class of Certificates in clause
(4) by the original principal balance or notional amount, as
applicable, of such class of Certificates:
Certificates: ___________________
[* less than 10% has been sold to the public]
The prices set forth above do not include accrued interest with respect
to periods before closing.
_______________________
By:____________________
Name:__________________
Title:___________________
EXHIBIT G
FOOTNOTE 271 INFORMATION
[Excerpt from Offering Reform adopting release-bold headings added for
convenience of reference]
In the case of asset-backed issuers certain information comprehended within the
definition of ABS informational and computational material is analogous to the
term of securities and is therefore issuer information. For example, we would
expect that the following categories of such material, which are derived from
the definition of ABS informational and computational materials, are generally
issuer information:
(1) STRUCTURAL INFORMATION-factual information regarding the
asset-backed securities being offered and the structure and basic parameters of
the securities, such as the number of classes, seniority, payment priorities,
terms of payment, the tax, ERISA or other legal conclusions of counsel, and
descriptive information relating to each class (e.g., principal amount, coupon,
minimum denomination, price or anticipated price, yield, weighted average life,
credit enhancements, anticipated ratings, and other similar information relating
to the proposed structure of the offering);
(2) COLLATERAL INFORMATION-factual information regarding the pool
assets underlying the asset-backed securities, including origination,
acquisition and pool selection criteria, information regarding any prefunding or
revolving period applicable to the offering, information regarding significant
obligors, data regarding the contractual and related characteristics of the
underlying pool assets (e.g., weighted average coupon, weighted average
maturity, delinquency and loss information and geographic distribution) and
other factual information concerning the parameters of the asset pool
appropriate to the nature of the underlying assets, such as the type of assets
comprising the pool and the programs under which the loans were originated;
(3) KEY PARTIES INFORMATION-identification of key parties to the
transaction, such as servicers, trustees, depositors, sponsors, originators and
providers of credit enhancement or other support, including information about
any such party;
(4) STATIC POOL DATA-static pool data, as referenced in Item 1105 of
Regulation AB [17 CFR 229.1105], such as for the sponsor's and/or servicer's
portfolio, prior transactions or the asset pool itself; and
(5) ISSUER COMPUTATIONAL MATERIAL-to the extent that the information is
provided by the issuer, depositor, affiliated depositor, or sponsor, statistical
information displaying for a particular class of asset-backed securities the
yield, average life, expected maturity, interest rate sensitivity, cash flow
characteristics, total rate of return, option adjusted spread or other financial
or statistical information related to the class or classes under specified
prepayment, interest rate, loss or other hypothetical scenarios. (Where such
information is prepared by the underwriter or dealer, it is not issuer
information, even when derived from issuer information.)