EXHIBIT 1.1
OPTION ONE MORTGAGE ACCEPTANCE CORPORATION
$[___] (Approximate)
Option One Mortgage Loan Trust [___]-[___]
Asset-Backed Certificates
Series [___]-[___]
UNDERWRITING AGREEMENT
[------------]
[Underwriters]
Ladies and Gentlemen:
Option One Mortgage Acceptance Corporation (the "Depositor"), a
Delaware corporation, has authorized the issuance and sale of Option One
Mortgage Loan Trust [___]-[___], Asset-Backed Certificates, Series [___]-[___],
Class [___] Certificates. Also issued are the Class C Certificates, Class P
Certificates, the Class R Certificates and the Class R-X Certificates
(collectively, the "Non-Offered Certificates"). The Offered Certificates and the
Non-Offered Certificates are referred to as the Certificates ("Certificates").
Only the Class [___] Certificates (collectively the "Underwritten
Certificates") are being purchased by the Underwriters named in Schedule A
hereto, and the Underwriters are purchasing, severally, 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.
The Certificates will be issued under a pooling and servicing agreement
(the "Pooling and Servicing Agreement"), dated as of [____] among the Depositor
as depositor, Option One Mortgage Corporation, as master servicer (in such
capacity, the "Master Servicer") and [___], as the 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 initially include, among other things, a pool of
fixed-rate and adjustable-rate mortgage loans (collectively the "Mortgage
Loans"), the Net WAC Rate Carryover Reserve Account, the Interest Coverage
Accounts, if any, 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. First
and second deeds of trust or mortgages on one- to four-family residential
properties secure the Mortgage Loans. A form of the Pooling and Servicing
Agreement has been filed as an exhibit to the Registration Statement.
The 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
"Mortgage Loan Purchase Agreement"), among Option One Mortgage Corporation
("Option One"), Option One Owner Trust 2001-1A, Option One Owner Trust 2001-1B,
Option One Owner Trust 2001-2, Option One Owner Trust 2002-3, Option One Owner
Trust 2003-4, Option One Owner Trust 2003-5, Option One Owner Trust 2005-6 and
Option One Owner Trust 2005-7 as sellers (and together with Option One, the
"Sellers") and the Depositor, the Sellers will transfer to the Depositor all of
their right, title and interest in and to the scheduled principal balances of
the Mortgage Loans as of the Cut-off Date and interest due after the Cut-off
Date and the collateral securing each Mortgage Loan. Pursuant to the Pooling and
Servicing Agreement, the Depositor will transfer to the Trust all of its right,
title and interest in and to the scheduled principal balances of the Mortgage
Loans as of the Cut-off Date and interest due after the Cut-off Date and the
collateral securing each Mortgage Loan.
SECTION 1. REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR. The
Depositor represents and warrants to, and agrees with the Underwriters that as
of the date hereof and as of the Closing Date:
(a) A Registration Statement on Form S-3 (No. 333-[___]), has (i) been
prepared by the Depositor in conformity with the requirements of the Securities
Act of 1933, as amended (the "Securities Act") and the rules and regulations
(the "Rules and Regulations") of the United States Securities and Exchange
Commission (the "Commission") thereunder, (ii) been filed with the Commission
under the Securities Act and (iii) become effective and is still effective as of
the date hereof under the Securities Act. Copies of such Registration Statement
have been delivered by the Depositor to the Underwriters. As used in this
Agreement, "Effective Time" means the date and the time as of which such
Registration Statement, or the most recent post-effective amendment thereto, if
any, was declared effective by the Commission; "Effective Date" means the date
of the Effective Time; "Registration Statement" means such registration
statement, at the Effective Time, including any documents incorporated by
reference therein at such time; "Basic Prospectus" means such final prospectus
dated October 3, 2005 and "Prospectus Supplement" means the final prospectus
supplement dated November 7, 2005 relating to the Underwritten Certificates, to
be filed with the Commission pursuant to paragraphs (2), (3) or (5) of Rule
424(b) of the Rules and Regulations. "Prospectus" means the Basic Prospectus
together with the Prospectus Supplement. The preliminary prospectus, including
any preliminary prospectus supplement which, as completed, is proposed to be
used in connection with the sale of the Underwritten Certificates and filed with
the Commission pursuant to Rule 424 of the Securities Act, is hereinafter
referred to as the "Preliminary Prospectus." Reference made herein to the
Prospectus shall be deemed to refer to and include any documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the Securities Act, as
of the date of the Prospectus and any reference to any amendment or supplement
to the Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any document filed under the Securities Exchange Act of 1934 (the
"Exchange Act") after the date of the 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 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(b) hereof for filing on Form 8-K. The conditions for use of Form S-3,
as set forth in the General Instructions thereto, have been satisfied.
(b) The Registration Statement and the Preliminary Prospectus conform,
and any further amendments or supplements to the Registration Statement or the
Preliminary 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 Prospectus conforms, and any further amendments or supplements
to the Prospectus will conform, when filed with the Commission, in all respects
to the requirements of the Securities Act and the Rules and Regulations. The
Registration Statement, as of the Effective Date thereof and of any amendment
thereto, did not contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading. The Preliminary Prospectus, as amended or
supplemented as of its date or as of the date of the Contract of Sale, and the
Prospectus as of its date, and as amended or supplemented as of the Closing Date
does not and will not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading; provided
that no representation or warranty is made as to (i) information contained in or
omitted from the Registration Statement or the Prospectus in reliance upon and
in conformity with written information furnished to the Depositor in writing by
the Underwriters expressly for use therein which shall be limited to the
highlighted information set forth on Exhibit A hereto (the "Underwriters'
Information") or (ii) any Derived Information.
(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 (the
"Agreements") and to cause the Certificates to be issued.
(e) Except as disclosed in the Prospectus Supplement, 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
interest in the Mortgage Loans conveyed by the Sellers, 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 its interest in 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 the Originator, 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 Sections 10 and 11 hereof) severally and not jointly to
purchase from the Depositor, the aggregate initial 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, 2 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 [___] 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 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 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 and to file such Preliminary
Prospectus and Prospectus pursuant to Rule 424(b) under the Securities
Act not later than the Commission's close of business on the second
Business Day following the availability of the Preliminary Prospectus
and the Prospectus, as applicable, to the Underwriters; to make no
further amendment or any supplement to the Registration Statement or to
the Prospectus prior to the Closing Date except as permitted herein; to
advise the Underwriters, promptly after it receives notice thereof, of
the time when any amendment to the Registration Statement has been
filed or becomes effective prior to the termination of the offering of
the Underwritten 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 their receipt of
notice of the issuance by the Commission of any stop order or the
institution of or, to the knowledge of the Depositor, the threatening
of any proceeding for such purpose, or of: (i) any order preventing or
suspending the use of the 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 Prospectus and (iii) any
document incorporated by reference in the Prospectus (including
exhibits thereto). If the delivery of a prospectus is required at any
time prior to the expiration of nine months after the Closing Date in
connection with the offering or sale of the Underwritten Certificates,
and if at such time any events shall have occurred as a result of which
the Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus
or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Securities Act
or the Exchange Act, the Depositor shall notify the Underwriters and,
upon any Underwriters' 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 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 Rule 424 of 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) 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 Originator or the
Seller shall be publicly offered or sold, nor shall the Originator or
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.
(viii) 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
statement as to compliance delivered to the Trustee pursuant to Section
3.20 of the Pooling and Servicing Agreement; (ii) the annual statement
of a firm of independent public accountants furnished to the Trustee
pursuant to Section 3.21 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
4.03 of the Pooling and Servicing Agreement.
(ix) In connection with any transaction by this Agreement, the
Depositor and each of its affiliates maintain customary arm's-length
business relationships with the Underwriters and each of their
respective affiliates, and no fiduciary duty on the part of the
Underwriters or any of their respective affiliates is thereby or hereby
intended or created, and the express disclaimer of any such fiduciary
relationship on the part of the Underwriters and each of their
respective 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).
(b) Each Underwriter severally represents, warrants, covenants and
agrees with the Depositor as to itself that:
(i) 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.
(ii) 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.
(iii) 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.
(iv) 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 its 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.
(v) If an Underwriter does not furnish a Free Writing
Prospectus 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 Free Writing Prospectus to any
potential investor.
(vi) Each Free Writing Prospectus shall contain legends
substantially similar to the following:
The issuer 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 issuer has filed with the SEC for more complete
information about the issuer and this offering. You may get
these documents for free by visiting ▇▇▇▇▇ on the SEC Web site
at ▇▇▇.▇▇▇.▇▇▇. Alternatively, the issuer, 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.
(vii) Any Computational Materials shall include legends, in
addition to those specified in paragraph (vi) above, substantially
similar to the following:
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 issuer of the securities 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 issuer or its affiliates.
(viii) On or before the Closing Date, the Representative shall
execute and deliver to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP a copy of an
original issue discount pricing letter, provided to the Representative
by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP.
(ix) 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, any
Preliminary Prospectus or Final Prospectus or amendments or supplements
thereto, taking into account information incorporated therein by
reference (other than information incorporated by reference from any)
or (ii) any Pool Information and (iii) which does not include any
Excluded 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 information
that is merely based on or derived from such 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.
(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 the 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.
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 ▇▇▇▇▇'▇ Investors
Service Inc. ("▇▇▇▇▇'▇"), ▇▇▇▇▇ Ratings ("Fitch") and Standard & Poor's
Ratings Services ("S&P"), in their sole discretion.
(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
Originator 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 charter and by-laws of
the Originator or the Depositor, as applicable;
(iii) an officer's certificate of an officer of the Seller,
dated as of the Closing Date and reasonably
satisfactory in form and substance to the
Underwriters and counsel for the Underwriters, with a
copy of the Seller's trust agreement;
(iv) an opinion of in-house counsel to the Originator and
the Depositor, reasonably satisfactory in form and
substance to the Underwriters and counsel for the
Underwriters, dated the Closing Date, as to various
matters;
(v) an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to
the Sellers, the Originator and the Depositor, dated
the Closing Date, reasonably satisfactory in form and
substance to the Underwriters and counsel for the
Underwriters, as to various matters;
(vi) 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;
(vii) such opinions of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel
to the Seller, the Originator and 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 (v) 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.
(viii) a letter from each Rating Agency that it has assigned
the applicable Required Ratings;
(ix) 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;
(x) 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 Representative,
prepared by [____] (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;
(xi) letters dated on or before the date on which the
Prospectus Supplement is dated and printed, in form
and substance acceptable to the Underwriters and
their counsel, prepared by [___] (a) regarding
certain numerical information contained or
incorporated by reference in the Prospectus
Supplement and (b) relating to certain agreed upon
procedures as requested by the Underwriters relating
to the Mortgage Loans;
(xii) 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;
(xiii) 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; and
(xiv) the swap documentation executed and delivered by the
swap provider and the trustee.
(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 Originator 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 makes it in the judgment of the Underwriters, impractical to
market the Certificates.
(h) There shall not have occurred any development that has
caused a material adverse change in the financial condition, results of
operations or business of the Originator or the Depositor;
(i) The Underwriters hereby authorize Banc of America to
execute each of (a) the letter to the Depositor concerning registration
and denomination instructions for the Certificates purchased by the
Underwriters, (b) the Cross Receipt relating to the Depositor's receipt
of the proceeds from the sale of the Certificates and (c) the original
issue discount pricing letter.
(j) If any condition, specified in this Section 6 shall have
not been fulfilled when and as required to be fulfilled, this Agreement
may be terminated by the Underwriters by notice to the Depositor at any
time at or prior to the Closing Date, and such termination shall be
without liability of any party to any other party except as provided in
Sections 7 and 8.
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 and (vii) all
other costs and expenses incidental to the performance of the obligations of the
Depositor and the Originator (including costs and expenses of counsel to the
Depositor and the Originator); provided that, except as provided in this Section
7, the Underwriters shall pay their own costs and expenses, including the costs
and expenses of their counsel, any transfer taxes on the Underwritten
Certificates which they may sell and the expenses of advertising any offering of
the Underwritten Certificates made by the Underwriters, and the Underwriters
shall pay the cost of any accountants' comfort letters relating to any
Computational Materials (as defined herein).
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, or any amendment or
supplement thereto, or arise out of, or are based
upon, the omission or alleged omission to state
therein a material fact required to be stated therein
or necessary to make the statements made therein not
misleading; and will reimburse each Underwriter and
each such controlling person for any legal or other
expenses reasonably incurred by such Underwriter or
such controlling person in connection with
investigating or defending any such loss, claim,
damage, liability or action as such expenses are
incurred; provided, however, that the Depositor will
not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of
or is based upon an untrue statement or omission, or
alleged untrue statement or omission, made in any of
such documents (x) in reliance upon and in conformity
with any Underwriters' Information or (y) any Derived
Information, except in the case of this clause (y) to
the extent that any untrue statement or alleged
untrue statement or omission therein results (or is
alleged to have resulted) from an error or material
omission in the information either in the Preliminary
Prospectus or the Prospectus for which the Depositor
is responsible or concerning the characteristics of
the Mortgage Loans furnished by the Originator to the
Underwriters for use in the preparation of any Free
Writing Prospectus; provided, however, that no
indemnity shall be provided for any error that was
superseded or corrected by the delivery to the
Underwriters of corrected written or electronic
information prior to the first Contract of Sale, or
for which the Originator 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 who have signed the Registration
Statement and each person, if any, who controls the Depositor within
the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, against any and all losses, claims, expenses, damages or
liabilities to which the Depositor or any such director, officer or
controlling person may become subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in
(i) Derived Information and (ii) the Registration Statement, the
Prospectus or any amendment or supplement thereto, or arise out of, or
are based upon, the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements made therein not misleading, but with respect to clause
(b)(ii) above, only to the extent that such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance
upon and in conformity with the Underwriters' Information of such
Underwriter; and will reimburse any legal or other expenses reasonably
incurred by the Depositor or any such director, officer or controlling
person in connection with investigating or defending any such loss,
claim, damage, liability or action. This indemnity agreement will be in
addition to any liability which such Underwriter may otherwise have.
(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, or by the
related Underwriters, if the indemnified parties under this Section 8
consist of more than one Underwriter or their controlling persons, or
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 an
Underwriter 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 such Underwriter. 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
Originator 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 Originator, 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 Underwriters.
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 each
of the following:
(i) [___];
(ii) [___];
(iii) [___];
(iv) [___];
(v) [___];
(vi) [___];
(vii) [___]
(b) if to the Depositor, shall be delivered or sent by mail,
telex or facsimile transmission to care of Option One Mortgage
Acceptance Corporation, ▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Facsimile
(▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇; and
(c) if to the Originator, shall be delivered or sent by mail,
telex or facsimile transmission to care of Option One Mortgage
Corporation, ▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Facsimile (949)
790-7540, Attention: ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇.
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 Originator 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 Originator 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
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,
Inc. is open for trading.
SECTION 16. GOVERNING LAW: SUBMISSION TO JURISDICTION; WAIVER OF JURY
TRIAL. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York without giving effect to the principles of
conflicts of law thereof. The parties hereto hereby submit to the jurisdiction
of the United States District Court for the Southern District of New York and
any court in the State of New York located in the City and County of New York,
and appellate court from any thereof, in any action, suit or proceeding brought
against it or in connection with this Agreement or any of the related documents
or the transactions contemplated hereunder or for recognition or enforcement of
any judgment, and the parties hereto hereby agree that all claims in respect of
any such action or proceeding may be heard or determined in New York State court
or, to the extent permitted by law, in such federal court. The parties hereto
hereby irrevocably waive, to the fullest extent permitted by law, any and all
rights to trial by jury in any legal proceeding arising out of or relating to
this Agreement or the transactions contemplated hereby.
SECTION 17. COUNTERPARTS. This Agreement may be 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 ORIGINATOR. The Originator 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 Originator by any
Underwriter, any officer or director of any Underwriter or any person
controlling any Underwriter, it shall not be necessary for such claimant to
first pursue any remedy from or exhaust any procedures against the Depositor.
SECTION 20. REPRESENTATIONS OF THE SEVERAL UNDERWRITERS. Each
Underwriter hereby represents and agrees to the terms set forth in Exhibit B
hereto which are incorporated herein by reference.
If the foregoing correctly sets forth the agreement between the
Depositor and the Underwriters, please indicate your acceptance in the space
provided for the purpose below.
Very truly yours,
OPTION ONE MORTGAGE ACCEPTANCE CORPORATION
By:___________________________
Name:
Title:
OPTION ONE MORTGAGE CORPORATION
By:___________________________
Name:
Title:
CONFIRMED AND ACCEPTED, as of the date first above written:
[UNDERWRITER]
By:____________________________________
Name:
Title:
[UNDERWRITER]
By:____________________________________
Name:
Title:
[UNDERWRITER]
By:____________________________________
Name:
Title:
[UNDERWRITER]
By:____________________________________
Name:
Title:
[UNDERWRITER]
By:____________________________________
Name:
Title:
[UNDERWRITER]
By:____________________________________
Name:
Title:
[UNDERWRITER]
By:____________________________________
Name:
Title:
SCHEDULE A
Underwritten Certificates
UNDERWRITERS PRINCIPAL AMOUNT
[Underwriter]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
[Underwriter]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
[Underwriter]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
[Underwriter]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
[Underwriter]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
[Underwriter]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
[Underwriter]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
Class [___] $[___]
EXHIBIT A
EXHIBIT B