ARGENT SECURITIES
INC.
$1,429,630,000 (Approximate)
Asset-Backed Pass-Through
Certificates
Argent Securities Inc.
Series 2006-W3
March 15, 2006
UNDERWRITING
AGREEMENT
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UBS Securities LLC
as Representative of the several
Underwriters
1285 Avenue of Americas
New York NY 10019
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Ladies and Gentlemen:
Argent Securities Inc. (the
“Depositor”), a Delaware corporation, has authorized
the issuance and sale of Argent Securities Inc., Asset-Backed
Pass-Through Certificates, Series 2006-W3 (the
“Certificates”). The Certificates are designated as (i)
the Class A-1 Certificates, the Class A-2A Certificates, the Class
A-2B Certificates, the Class A-2C Certificates and the Class A-2D
Certificates (collectively, the “Class A Certificates”)
and (ii) the Class M-1 Certificates, the Class M-2 Certificates,
the Class M-3 Certificates, the Class M-4 Certificates, the Class
M-5 Certificates, the Class M-6 Certificates, the Class M-7
Certificates, the Class M-8 Certificates and the Class M-9
Certificates (collectively, the “Offered Mezzanine
Certificates” together with the Class A Certificates, the
“Underwritten Certificates”). Also to be issued are the
Class M-10 Certificates, the Class M-11 Certificates, Class CE
Certificates, the Class P Certificates, the Class R Certificates
and the Class R-X Certificates (collectively, the
“Non-Offered Certificates”). The Underwritten
Certificates and the Non-Offered Certificates are referred to
together as the “Certificates.”
Only the Underwritten Certificates
are being purchased by the underwriters named in Schedule A hereto
(the “Underwriters”), and the Underwriters severally
are purchasing only the Underwritten Certificates set forth
opposite their names in Schedule A, except that the amounts
purchased by the Underwriters may change in accordance with Section
10 of this Agreement. UBS Securities LLC is acting as
representative of the several Underwriters and, in such capacity,
is hereinafter referred to as the “Representative.” If
only one underwriter is named in Schedule A, the terms
“Underwriter,” “Underwriters” and
“Representative” shall refer to that named
underwriter.
The Certificates will be issued
under a Pooling and Servicing Agreement, dated as of March 1, 2006
(the “Pooling and Servicing Agreement”), among the
Depositor as depositor, Ameriquest Mortgage Company as master
servicer (in such capacity, the “Master Servicer”)
and
Deutsche Bank National Trust Company
as trustee (in such capacity, the “Trustee”).
Capitalized but undefined terms shall have the meanings set forth
in the Pooling and Servicing Agreement.
The Certificates will evidence
fractional undivided interests in the Trust (the
“Trust”) formed pursuant to the Pooling and Servicing
Agreement. The assets of the Trust will initially include, among
other things, a segregated pool (the “Mortgage Pool”)
of certain adjustable-rate and fixed-rate, conventional, one- to
four-family residential mortgage loans (collectively, the
“Initial Mortgage Loans”), the Pre-funding Accounts
used to purchase additional mortgage loans after the Closing Date
(the “Subsequent Mortgage Loans”, together with the
Initial Mortgage Loans, the “Mortgage Loans”), the
Interest Coverage Accounts, the Master Servicer Prepayment Charge
Payment Amounts, the Net WAC Rate Carryover Reserve Account and the
Swap Account (including any payments made under the Swap
Administration Agreement deposited in the Trust) and such amounts
as may be held by the Trustee in any other accounts held by the
Trustee for the Trust. A form of the Pooling and Servicing
Agreement has been filed as an exhibit to the Registration
Statement.
The Underwritten Certificates are
more fully described in a Registration Statement which the
Depositor has furnished to the Underwriters.
Pursuant to the Mortgage Loan
Purchase Agreement, dated the date of this Agreement (the
“Mortgage Loan Purchase Agreement”), between Ameriquest
Mortgage Company (in such capacity, the “Seller”) and
the Depositor, the Seller will sell to the Depositor all of its
right, title and interest in and to the Mortgage Loans, including
the scheduled principal balances of the Mortgage Loans as of the
Cut-off Date and interest due after the Cut-off Date. Pursuant to
the Pooling and Servicing Agreement, the Depositor will sell to the
Trust all of its right, title and interest in and to the Mortgage
Loans, including the scheduled principal balances of the Mortgage
Loans as of the Cut-off Date and interest due after the Cut-off
Date.
On or before April 15, 2006, the
Trust will acquire the Subsequent Mortgage Loans to be included in
the Mortgage Pool, subject to the conditions set forth in the
Pooling and Servicing Agreement.
SECTION 1.
Representations and Warranties of the Depositor . The
Depositor represents and warrants to, and agrees with the
Underwriters that as of the date of the Preliminary Prospectus, as
of the date of the Prospectus, and as of the Closing
Date:
(a) A
Registration Statement on Form S-3 (No. 333-121782) relating to the
Underwritten Certificates has (i) been prepared by the Depositor in
conformity with the requirements of the Securities Act of 1933, as
amended (the “Securities Act”), and the rules and
regulations (the “Rules and Regulations”) of the United
States Securities and Exchange Commission (the
“Commission”) thereunder, (ii) been filed with the
Commission under the Securities Act and (iii) become effective and
is still effective as of the date hereof under the Securities Act.
Copies of such Registration Statement have been delivered by the
Depositor to the Underwriters. As used in this Agreement,
“Effective Time” means the date and the time as of
which such Registration Statement, or the most recent
post-effective amendment thereto, if any, was declared effective by
the Commission; “Effective Date” means the date of the
Effective
Time; “Registration
Statement” means such registration statement, at the
Effective Time, including any documents incorporated by reference
therein at such time; “Base Prospectus” means such
final prospectus dated April 15, 2005 and “Prospectus
Supplement” means the final prospectus supplement relating to
the Underwritten Certificates, to be filed with the Commission
pursuant to paragraph (2), (3) or (5) of Rule 424(b) of the Rules
and Regulations. “Prospectus” means the Base Prospectus
together with the Prospectus Supplement. The Depositor has prepared
a Free Writing Prospectus, dated March 14, 2006, that contains
substantially all information that will appear in the Prospectus
Supplement and including the Static Pool Information referred to in
Free Writing Prospectus, to the extent that such information is
known at that time (such Free Writing Prospectus together with the
Base Prospectus, the “Preliminary Prospectus”).
Reference made herein to the Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any documents
incorporated by reference therein pursuant to Item 12 of Form S-3
under the Securities Act, as of the date of the Prospectus and any
reference to any amendment or supplement to the Preliminary
Prospectus or the Prospectus shall be deemed to refer to and
include any document filed under the Securities Exchange Act of
1934, as amended (the “Exchange Act”), after the date
of the Preliminary Prospectus or the Prospectus, as applicable, and
incorporated by reference in the Preliminary Prospectus or the
Prospectus, as applicable, and any reference to any amendment to
the Registration Statement shall be deemed to include any report of
the Depositor filed with the Commission pursuant to Section 13(a)
or 15(d) of the Exchange Act after the Effective Time that is
incorporated by reference in the Registration Statement. The
Commission has not issued any order preventing or suspending the
use of the Prospectus or the Preliminary Prospectus or the
effectiveness of the Registration Statement and no proceedings for
such purpose are pending or, to the Depositor’s knowledge,
threatened by the Commission. There are no contracts or documents
of the Depositor which are required to be filed as exhibits to the
Registration Statement pursuant to the Securities Act or the Rules
and Regulations which have not been so filed or incorporated by
reference therein on or prior to the Effective Date of the
Registration Statement other than such documents or materials, if
any, as any Underwriter delivers to the Depositor pursuant to
Section 5 hereof for filing on Form 8-K. The conditions for use of
Form S-3, as set forth in the General Instructions thereto, have
been satisfied.
(b) The
Registration Statement, the Preliminary Prospectus and the
Prospectus (including any Static Pool Information therein regarding
prior securitized pools that were established before January 1,
2006) conform, and any further amendments or supplements to the
Registration Statement, the Preliminary Prospectus and the
Prospectus will conform, when they become effective, are filed with
the Commission or as of the date of the Contract of Sale, as the
case may be, in all respects to the requirements of the Securities
Act and the Rules and Regulations. The Registration Statement, as
of the Effective Date thereof, and any amendment thereto, did not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading. The Preliminary Prospectus,
as amended or supplemented, as of its date and as of the date of
the Contract of Sale, and the Prospectus, as amended or
supplemented, as of its date and as of the Closing Date, do not and
will not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made,
not misleading; provided that no representation or warranty is made
as to (i) information contained in or omitted from the Registration
Statement, the Preliminary Prospectus or the Prospectus in reliance
upon and in conformity with written
information furnished to the
Depositor in writing by any Underwriter through the Representative
expressly for use therein as set forth in Exhibit A hereto (the
“Underwriters’ Information”), and (ii) any
Excluded Information (as defined in Section 8(a)(i)
below).
(c) The
documents incorporated by reference in the Preliminary Prospectus
or the Prospectus, as applicable, when they became effective, were
filed with the Commission or as of the date of the Contract of
Sale, as the case may be, conformed in all material respects to the
requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder; and any further documents so filed and incorporated by
reference in the Prospectus, when such documents become effective,
are filed with the Commission or as of the date of the Contract of
Sale, as the case may be, will conform in all material respects to
the requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder.
(d) The
Depositor has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation and is in good standing as a foreign corporation in
each jurisdiction in which its ownership or lease of property or
the conduct of its business so requires such standing. The
Depositor has all power and authority necessary to own or hold its
properties, to conduct the business in which it is engaged and to
enter into and perform its obligations under this Agreement, the
Mortgage Loan Purchase Agreement, each Subsequent Mortgage Loan
Purchase Agreement and the Pooling and Servicing Agreement
(collectively, the “Agreements”) and to cause the
Certificates to be issued.
(e) Except
as disclosed in the Preliminary Prospectus and the Prospectus,
there are no actions, proceedings or investigations pending with
respect to which the Depositor has received service of process
before, or, to the best of the Depositor’s knowledge,
threatened, by any court, administrative agency or other tribunal
to which the Depositor is a party or of which any of its properties
is the subject (a) which if determined adversely to the Depositor
would have a material adverse effect on the business or financial
condition of the Depositor, (b) asserting the invalidity of any of
the Agreements or the Certificates, (c) seeking to prevent the
issuance of the Certificates or the consummation by the Depositor
of any of the transactions contemplated by any of the Agreements or
(d) which might materially and adversely affect the performance by
the Depositor of its obligations under, or the validity or
enforceability of any of the Agreements or the
Certificates.
(f) This
Agreement has been, and the other Agreements when executed and
delivered as contemplated hereby and thereby will have been, duly
authorized, executed and delivered by the Depositor, and this
Agreement constitutes, and the other Agreements when executed and
delivered as contemplated herein will constitute, legal, valid and
binding instruments enforceable against the Depositor in accordance
with their respective terms, subject as to enforceability to (x)
applicable bankruptcy, reorganization, insolvency, moratorium or
other similar laws affecting creditors’ rights generally, (y)
general principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law), and (z) with respect
to rights of indemnity under any of the Agreements, limitations of
public policy under applicable securities laws.
(g) The
execution, delivery and performance of the Agreements by the
Depositor and the consummation of the transactions contemplated
hereby and thereby, and the issuance and delivery of the
Certificates do not and will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the
Depositor is a party, by which the Depositor is bound or to which
any of the properties or assets of the Depositor or any of its
subsidiaries is subject, which breach or violation would have a
material adverse effect on the business, operations or financial
condition of the Depositor or its ability to perform its
obligations under any of the Agreements, nor will such actions
result in any violation of the provisions of the articles of
incorporation or by-laws of the Depositor or any statute or any
order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Depositor or any of its
properties or assets, which breach or violation would have a
material adverse effect on the business, operations or financial
condition of the Depositor or its ability to perform its
obligations under any of the Agreements.
(h) The
direction by the Depositor to the Trustee to execute, authenticate,
issue and deliver the Certificates has been duly authorized by the
Depositor, and, assuming the Trustee has been duly authorized to
undertake such actions, when executed, authenticated, issued and
delivered by the Trustee, in accordance with the Pooling and
Servicing Agreement, the Certificates will be validly issued and
outstanding and the holders of the Certificates will be entitled to
the rights and benefits of the Certificates as provided by the
Pooling and Servicing Agreement.
(i) No
consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body
of the United States is required for the issuance of the
Certificates and the sale of the Underwritten Certificates to the
Underwriters, or the consummation by the Depositor of the other
transactions contemplated by the Agreements except such consents,
approvals, authorizations, registrations or qualifications as may
be required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Underwritten Certificates
by the Underwriters or as have been obtained.
(j) At
the time of the execution and delivery of the Pooling and Servicing
Agreement, the Depositor will: (i) have equitable title to the
Initial Mortgage Loans conveyed by the Seller, free and clear of
any lien, mortgage, pledge, charge, encumbrance, adverse claim or
other security interest (collectively, “Liens”); (ii)
not have assigned to any person (other than the Trustee) any of its
right, title or interest in the Initial Mortgage Loans and (iii)
have the power and authority to sell the Mortgage Loans to the
Trustee and to sell the Underwritten Certificates to the
Underwriters. At each Subsequent Transfer Date, the Depositor will:
(i) have equitable title to the interest in the Subsequent Mortgage
Loans conveyed by the Seller on the Subsequent Transfer Date, free
and clear of any Liens; (ii) not have assigned to any person (other
than the Trustee) any of its right, title or interest in such
Subsequent Mortgage Loans and (iii) have the power and authority to
sell its interest in such Subsequent Mortgage Loans to the Trustee.
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 Initial Mortgage Loans. On each Subsequent Transfer Date, the
Trustee will have acquired beneficial ownership of all of the
Depositor’s right, title and interest in and to the
Subsequent Mortgage Loans conveyed by the Seller on such Subsequent
Transfer Date. 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 or the related Subsequent Transfer Date, as
applicable, each of the Mortgage Loans will meet the eligibility
criteria described in the Preliminary Prospectus and the Prospectus
and will conform to the descriptions thereof contained in the
Preliminary Prospectus and the Prospectus.
(l) Neither
the Depositor nor the Trust is an “investment company”
within the meaning of such term under the Investment Company Act of
1940, as amended (the “1940 Act”) and the rules and
regulations of the Commission thereunder.
(m) At
the Closing Date, the Underwritten Certificates and the Pooling and
Servicing Agreement will conform in all material respects to the
descriptions thereof contained in the Preliminary Prospectus and
the Prospectus.
(n) Any
taxes, fees and other governmental charges in connection with the
execution, delivery and issuance of the Agreements and the
Certificates have been paid or will be paid at or prior to the
Closing Date.
(o) Since
the respective dates as of which information is given in the
Preliminary Prospectus and the Prospectus, there has not been any
material adverse change in the general affairs, management,
financial condition, or results of operations of the Depositor or
Seller, otherwise than as set forth or contemplated in the
Prospectus as supplemented or amended as of the Closing
Date.
(p) As
of the Effective Date and as of the date of the Contract of Sale,
the Depositor is not and will not be as of the Closing Date an
“ineligible issuer” as defined in Rule 405 under the
Securities Act.
(q) Any
certificate signed by an officer of the Depositor and delivered to
the Underwriters or counsel for the Underwriters in connection with
an offering of the Underwritten Certificates shall be deemed, and
shall state that it is, a representation and warranty as to the
matters covered thereby to each person to whom the representations
and warranties in this Section 1 are made.
(r) As
of the date of the Contract of Sale, each Issuer Free Writing
Prospectus and the Preliminary Prospectus, considered together, did
not include any untrue statement of a material fact or omission of
any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading.
SECTION
2. Purchase and Sale . The
several commitments of the Underwriters to purchase the
Underwritten Certificates pursuant to this Agreement shall be
deemed to have been made on the basis of the representations and
warranties herein contained and shall be subject to the terms and
conditions herein set forth. The Depositor agrees to instruct the
Trustee to issue the Certificates and agrees to sell to each
Underwriter, and each Underwriter agrees (except as provided in
Section 10 hereof) severally and not jointly to purchase from the
Depositor, the aggregate principal amounts or percentage interests
of the Underwritten
Certificates of each Class, as set
forth opposite such Underwriter’s name on Schedule A, at the
purchase price or prices set forth on Schedule A.
SECTION 3. Delivery
and Payment . Delivery of and payment for the Underwritten
Certificates shall be made at the offices of Thacher Proffitt &
Wood LLP, Two World Financial Center, 29th Floor, 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
March 29, 2006, or at such other time or date as shall be agreed
upon in writing by the Underwriters and the Depositor (such date
being referred to as the “Closing Date”). Payment shall
be made to the Depositor by wire transfer of same day funds payable
to the account of the Depositor. Delivery of the Underwritten
Certificates shall be made to the several Underwriters against
payment of the purchase price thereof. The Underwritten
Certificates so delivered will be initially represented by one or
more certificates registered in the name of Cede & Co., the
nominee of The Depository Trust Company (“DTC”). The
interests of the beneficial owners of the Underwritten Certificates
will be represented by book entries on the records of DTC and
participating members thereof. Definitive Underwritten Certificates
will be available only under the limited circumstances specified in
the Pooling and Servicing Agreement.
SECTION
4. Offering by the
Underwriters . It is understood that, subject to the terms and
conditions hereof, the several Underwriters propose to offer the
Underwritten Certificates for sale to the public as set forth in
the Prospectus.
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SECTION 5.
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Agreements
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(a)
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The Depositor agrees as
follows:
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(i)
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To prepare the Preliminary
Prospectus and the Prospectus in a form approved by the
Underwriters; to file such Preliminary Prospectus pursuant to Rule
433(d) under the Securities Act not later than the same day on
which the Preliminary Prospectus was made available to the
Underwriters; to file such Prospectus pursuant to Rule 424(b) under
the Securities Act not later than the second Business Day following
the day on which the Prospectus was made available to the
Underwriters; to make no further amendment or supplement to the
Registration Statement or to the Prospectus prior to the Closing
Date except as permitted herein; to advise the Underwriters,
promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or becomes
effective prior to the termination of the offering of the
Underwritten Certificates or any supplement to the Prospectus or
any amended Prospectus has been filed and to furnish the
Underwriters or their counsel with copies thereof without charge;
to file promptly all reports and any definitive proxy or
information statements required to be filed by the Depositor with
the Commission pursuant to Section 13(a), 13(c), 14 or l5(d) of the
Exchange Act subsequent to the date of the Prospectus and, for so
long as the delivery of a prospectus is required in connection with
the offering or sale of the Underwritten Certificates; to promptly
advise the Underwriters of its receipt of notice of the issuance by
the Commission of
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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.
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(ii)
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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.
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(iii)
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To deliver promptly to the
Underwriters without charge such number of the following documents
as the Underwriters shall reasonably request: (i) conformed copies
of the Registration Statement as originally filed with the
Commission and each amendment thereto (in each case including
exhibits); (ii) the Preliminary Prospectus, the Prospectus and any
amended or supplemented Preliminary Prospectus or Prospectus and
(iii) any document incorporated by reference in the Preliminary
Prospectus or the Prospectus (including exhibits thereto). If the
delivery of a prospectus is required at any time prior to the
expiration of nine months after the Closing Date in connection with
the offering or sale of the Underwritten Certificates, and if at
such time any events shall have occurred as a result of which the
Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with
the Securities Act or the Exchange Act, the Depositor shall notify
the Underwriters and, upon any Underwriter’s request, shall
file such document and prepare and furnish without charge to the
Underwriters and to any dealer in securities as many copies as the
Underwriters may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which corrects such
statement or omission or effects such compliance, and in case the
Underwriters are required to deliver a Prospectus in connection
with sales of any of the Underwritten Certificates at any time nine
months or more after the Effective Time, upon the request of the
Underwriters but at their
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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.
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(iv)
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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.
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(v)
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To furnish the Underwriters and
counsel for the Underwriters, prior to filing with the Commission,
and to obtain the consent of the Underwriters for the filing of the
following documents relating to the Underwritten Certificates: (i)
any Post-Effective Amendment to the Registration Statement or
supplement to the Prospectus, or document incorporated by reference
in the Prospectus or (ii) the Preliminary Prospectus and the
Prospectus pursuant to the Rules and Regulations.
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(vi)
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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.
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(vii)
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So long as the Underwritten
Certificates shall be outstanding, the Depositor shall cause the
Trustee, pursuant to the Pooling and Servicing Agreement, to
deliver to the Underwriters as soon as such statements are
furnished to the Trustee: (i) the annual assessment of compliance
delivered to the Trustee pursuant to Section 3.20 of the Pooling
and Servicing Agreement; (ii) the annual attestation of a firm of
registered public accountants furnished to the Trustee pursuant to
Section 3.20 of the Pooling and Servicing Agreement; (iii) the
monthly servicing report furnished to the Trustee and (iv) the
monthly reports furnished to the Certificateholders pursuant to
Section 4.02 of the Pooling and Servicing Agreement.
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(viii)
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Unless the Underwriters shall
otherwise have given their written consent, no collateralized
mortgage obligations or other similar securities representing
interests in or secured by other mortgage-related assets originated
or owned by the Seller shall be publicly offered or sold, nor shall
the Seller enter into any contractual arrangements that contemplate
the public offering or sale of such securities, until the earlier
to occur of the termination of the syndicate or the Closing
Date.
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(ix)
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In connection with any transaction
contemplated by this Agreement, the Depositor and each of its
affiliates maintain customary, arm’s-length business
relationships with each Underwriter and each of its affiliates, and
no fiduciary duty on the part of any Underwriter or any of its
affiliates is thereby or hereby intended or created, and the
express disclaimer of any such fiduciary relationship on the part
of each Underwriter and each of its affiliates is hereby
acknowledged and accepted by the Depositor and each of its
affiliates.
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(x)
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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.
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(xi)
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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).
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(xii)
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The Depositor will (i) prepare and
file the report required by Item 6.05 of Form 8-K within four
business days after the Closing Date if any material pool
characteristic in the final pool at the Closing Date varies by 5%
or more from the description in the Prospectus Supplement, (ii)
comply with required Form 8-K reporting requirements with respect
to any prefunding account and (iii) if static pool information
required with respect to the Underwritten Certificates is delivered
via website, comply with the Rules and Regulations. The Depositor
will be responsible for calculating the significance percentage of
any derivative contract with respect to the Underwritten
Certificates.
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(b) Each
Underwriter severally represents, warrants, covenants and agrees
with the Depositor as to itself that:
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(i)
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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.
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(ii)
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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.
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(iii)
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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 Prelimi
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