FINANCIAL ASSET SECURITIES CORP.
$[1,213,476,000] (Approximate)
[GreenPoint Mortgage Funding Trust 200_-___]
[Asset-Backed Notes, Series 200_-___]
UNDERWRITING AGREEMENT
___________, 2006
Greenwich Capital Markets, Inc.
600 Steamboat Road
Greenwich, Connecticut 06830
Ladies and Gentlemen:
Financial Asset Securities Corp. (the "Depositor"), a Delaware
corporation, has authorized the issuance and sale of GreenPoint
Mortgage Funding
Trust 200[_]-[___], Asset-Backed Notes, Series 200[_]-[__], Class
IA-1 Notes,
Class IIA-1a Notes, Class IIA-1b Notes, Class IIA-1c Notes, Class
IIA-2c Notes,
Class IIA-3c Notes, Class IIA-4c Notes, Class M-1 Notes, Class M-2
Notes, Class
M-3 Notes, Class M-4 Notes, Class M-5 Notes, Class M-6 Notes, Class
M-7 Notes,
Class M-8 Notes and the Class M-9 Notes (the "Offered Notes"). Also
issued are
the Class M-10 Notes, Class M-11 Notes, Class B-1 Notes and Class
B-2 Notes
(together with the Offered Notes, the "Notes") and Class C
Certificates, Class G
Certificates, Class R Certificates and Class R-X Certificates
(collectively, the
"Certificates").
Only the Class IA-1 Notes, Class IIA-1a Notes, Class IIA-1b
Notes,
Class IIA-1c Notes, Class IIA-2c Notes, Class IIA-3c Notes, Class
IIA-4c Notes,
Class M-1 Notes, Class M-2 Notes, Class M-3 Notes, Class M-4 Notes,
Class M-5
Notes, Class M-6 Notes, Class M-7 Notes, Class M-8 Notes and the
Class M-9 Notes
(collectively the "Underwritten Notes") are being purchased by the
Underwriters
named in Schedule B hereto (the "Underwriters"), and the
Underwriters are
purchasing, severally, only the Underwritten Notes set forth
opposite their
names in Schedule B, except that the amounts purchased by the
Underwriters may
change in accordance with Section 10 of this Agreement. If the firm
or firms
listed in Schedule B hereto include only Greenwich Capital Markets,
Inc.
("Greenwich"), then the terms "Underwriters" and "Representative,"
as used
herein, shall each be deemed to refer to Greenwich.
The Notes will be issued under an Indenture (the "Indenture"),
dated as
of [________], 200_, between [________] as issuer (the "Issuer" or
the "Trust")
and [__________] as indenture trustee (the "Indenture Trustee").
The Issuer is a
Delaware statutory trust created pursuant to a Trust Agreement,
dated as of
_____________, 200_ (the "Trust Agreement"), among the
Depositor,
[_____________] as owner trustee (the "Owner Trustee") and
[____________] as
certificate registrar (the "Certificate Registrar").
The Notes will evidence debt obligations of the Issuer secured by
a
pledge by the Issuer of the Trust Estate (the "Trust Estate"). The
Trust Estate
will include, among other things, a pool of adjustable rate, first
and second
lien, home equity lines of credit, the Net WAC Rate Carryover
Reserve Account
and such amounts as may be held by the Indenture Trustee in any
other accounts
held by the Indenture Trustee for the Trust. Forms of the Indenture
and Trust
Agreement have been filed as an exhibit to the Registration
Statement.
The Certificates will be issued pursuant to a pooling and
servicing
agreement (the "Pooling and Servicing Agreement") to be dated as
of
________________________, 200_ (the "Cut-off Date") among the
Company, as
seller, ______________________________, as master servicer ("Master
Servicer"),
and ______________________________, as trustee (the "Trustee"). The
Certificates
are described more fully in the Basic Prospectus and the Prospectus
Supplement
(each as hereinafter defined) which the Company has furnished to
you.
Pursuant to the Sale and Servicing Agreement, dated [_________],
200_
(the "Sale and Servicing Agreement"), among [_________], as
originator (the
"Originator"), [_______] as servicer (the "Servicer"), [________],
as seller
(the "Seller"), the Issuer, the Indenture Trustee and the
Depositor, the Seller
will transfer to the Depositor 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. Also pursuant to the Sale and Agreement, the
Depositor will
transfer to the Issuer 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.
This Agreement, the Trust Agreement, the Sale and Servicing
Agreement,
the Indenture, and the Notes are sometimes referred to herein
collectively as
the "Operative Agreements." Capitalized terms used but not defined
herein shall
have the meanings assigned thereto in the Indenture.
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. 333-127352), 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 [_______] and "Prospectus Supplement" means such final
prospectus
supplement dated [_______] relating to the Underwritten Notes, 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. 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
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
Prospectus, and
incorporated by reference in the Prospectus 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 6(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. The
Depositor further proposes to prepare, after the final terms of all
classes of
the Securities have been established, a Free Writing Prospectus
that will
contain substantially all information that will appear in the
Prospectus
Supplement, to the extent that such information is known at that
time and minus
specific sections including the "Method of Distribution" section
(such Free
Writing Prospectus, together with the Basic Prospectus, the
"Definitive Free
Writing Prospectus").
To the extent that any Underwriter has provided to the
Depositor
Collateral Term Sheets, Structural Term Sheets, Series Term Sheets
or
Computational Materials (each as defined in Section 6(b) below)
that such
Underwriter has provided to a prospective investor, the Depositor
will file or
cause to be filed with the Commission a report on Form 8-K
containing such
Computational Materials, as soon as reasonably practicable after
the date of
this Agreement, but in any event, not later than 11:00 a.m. New
York time on the
date on which the Prospectus is made available to the Underwriter
and is filed
with the Commission pursuant to Rule 424 of the Rules and
Regulations.
(b) The Registration Statement and the Prospectus conform, and
any
further amendments or supplements to the Registration Statement or
the
Prospectus will conform, when they become effective or are filed
with the
Commission, 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 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 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 the 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 Underwriter expressly for use therein
which shall be
limited to the information set forth on Exhibit B hereto
("Underwriter's
Information") or (ii) any Derived Information contained in any
Collateral Term
Sheet, Structural Term Sheets, Series Term Sheets or Computational
Materials
(each as defined in Section 6(b) below) in each case to the extent
not included
in the Prospectus. In addition, any Issuer Information (as defined
below)
contained in the Definitive Free Writing Prospectus, as of the date
thereof, did
not contain an untrue statement of a material fact and did not omit
to state a
material fact necessary in order to make the statements therein, in
the light of
the circumstances under which they were made, not misleading. The
Effective Date
shall mean the earlier of the date on which the Definitive Free
Writing
Prospectus is first used and the time of the first Contract of Sale
to which
such Prospectus Supplement relates. As used herein, "Pool
Information" means all
loan level data with respect to the characteristics of the Mortgage
Loans and
administrative and servicing fees, as provided by or on behalf of
the Depositor.
The Depositor acknowledges that except for any Computational
Materials, the
Underwriters' Information (as defined in Exhibit B) and the
decrement/yield
tables constitute the only information furnished in writing by you
or on your
behalf for use in connection with the preparation of the
Registration Statement
or the Prospectus, and you confirm that the Underwriters'
Information is correct
with respect to you and the Securities such Underwriter
underwrites.
(c) The documents incorporated by reference in the Prospectus,
when
they became effective or were filed with the Commission, 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 or are filed
with the
Commission, 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
Sale and Servicing Agreement and the Trust Agreement and to cause
the Notes to
be issued.
(e) There are no actions, proceedings or investigations pending
with
respect to which the Depositor has received service of process
before or
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 Notes, (c) seeking to
prevent the
issuance of the Notes 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
Notes.
(f) This Agreement has been, and the Operative Agreements to which
the
Depositor is a party, 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 Operative
Agreements,
limitations of public policy under applicable securities laws.
(g) The execution, delivery and performance of the Operative
Agreements
by the Depositor and the consummation of the transactions
contemplated hereby
and thereby, and the issuance and delivery of the Notes 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 Operative 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 Operative
Agreements.
(h) The direction by the Issuer to the Indenture Trustee to
execute,
authenticate, issue and deliver the Notes has been duly authorized
by the
Depositor, and, assuming the Indenture Trustee has been duly
authorized to
undertake such actions, when executed, authenticated, issued and
delivered by
the Indenture Trustee, in accordance with the Operative Agreements,
the Notes
will be validly issued and outstanding and the holders of the Notes
will be
entitled to the rights and benefits of the Notes as provided by the
Indenture.
(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 Notes and the sale of
the
Underwritten Notes 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 Notes by the Underwriters or as
have been
obtained.
(j) At the time of the execution and delivery of the Sale and
Servicing
Agreement, the Depositor will: (i) have equitable title to the
interest in the
Mortgage Loans conveyed by the Seller, free and clear of any lien,
mortgage,
pledge, charge, encumbrance, adverse claim or other security
interest
(collectively, "Liens"); (ii) not have assigned to any person
(other than the
Indenture 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 Indenture Trustee and to sell the Underwritten Notes to the
Underwriters.
Upon execution and delivery of the Trust Agreement by the Indenture
Trustee, the
Indenture 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 Notes, each of the
Underwriters
of the Underwritten Notes will have good title to the Underwritten
Notes
purchased by it.
(k) As of the Cut-off Date, each of the Mortgage Loans will meet
the
eligibility criteria described in the Prospectus and will conform
to the
descriptions thereof contained in 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 (the
"1940 Act") and the rules and regulations of the Commission
thereunder.
(m) At the Closing Date, the Underwritten Notes, the Indenture,
the
Sale and Servicing Agreement and the Trust Agreement will conform
in all
material respects to the descriptions thereof contained in the
Prospectus.
(n) Any taxes, fees and other governmental charges in connection
with
the execution, delivery and issuance of the Agreements and the
Notes 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
Prospectus, there has not been any material adverse change in the
general
affairs, management, financial condition, or results of operations
of the
Depositor, otherwise than as set forth or contemplated in the
Prospectus as
supplemented or amended as of the Closing Date.
(p) 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 Notes 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.
(q) The Depositor is not, as of the commencement of the offering,
an
Ineligible Issuer, as such term is defined in Rule 405 of the 1933
Act
Regulations.
(r) Neither the Issuer nor the Trust Funds are or, as a result of
the
offer and sale of the Securities as contemplated in this Agreement
will become,
an "investment company" or "controlled" by an "investment company"
within the
meaning of the Investment Company Act of 1940, as amended.
(s) The Company acknowledges and agrees that the relationship
between
itself and the Underwriter is an arms-length commercial
relationship that
creates no fiduciary duty on the part of the Underwriter, and each
party
expressly disclaims any fiduciary relationship. (t) The Depositor
shall file any
Free Writing Prospectus prepared by the Depositor (including the
Definitive Free
Writing Prospectus), and any Issuer Information contained in any
Free Writing
Prospectus provided to it by the Underwriters under Section 6, not
later than
the date of first use of such Free Writing Prospectus, except
that:
(i) As to any Free Writing Prospectus or portion thereof
required to be filed that contains only the description of the
final
terms of the Securities after such terms have been established for
all
classes of Securities being publicly offered, such Free Writing
Prospectus or portion thereof may be filed by the Depositor within
two
days of the later of the date such final terms have been
established
for all classes of Securities being publicly offered and the date
of
first use; and
(ii) Notwithstanding clause (a) above, as to any Free Writing
Prospectus or portion thereof required to be filed that contains
only
information of a type included within the definition of ABS
Informational and Computational Materials, the Depositor shall
file
such Free Writing Prospectus or portion thereof within the later of
two
business days after the Underwriters first provide this information
to
investors and the date upon which the Depositor is required to file
the
Prospectus Supplement with the Commission pursuant to Rule
424(b)(3) of
the Act.
provided further, that prior to such use of any Free Writing
Prospectuses by the Depositor, the Underwriters must comply with
their
obligations pursuant to Section 4(d) and that the Depositor shall
not be
required to file any Free Writing Prospectus that does not contain
substantive
changes from or additions to a Free Writing Prospectus previously
filed with the
Commission.
(u) The Underwriters shall file any Free Writing Prospectus that
has
been distributed by the Underwriters in a manner that could lead to
its broad,
unrestricted dissemination not later than the date of first use,
provided that
if that Free Writing Prospectus contains only information of a type
included
within the definition of ABS Informational and Computational
Materials then such
filing shall be made within the later of two business days after
the
Underwriters first provide this information to investors and the
date upon which
the Depositor is required to file the Prospectus Supplement with
the Commission
pursuant to Rule 424(b)(3) of the Act; provided further, that the
Depositor
shall not be required to file any Free Writing Prospectus that does
not contain
substantive changes from or additions to a Free Writing Prospectus
previously
filed with the Commission.
(v) The Depositor will cause the Prospectus Supplement to be
transmitted to the Commission for filing pursuant to Rule 424(b)
under the Act
by means reasonably calculated to result in filing with the
Commission pursuant
to said rule. The Depositor will cause the Prospectus Supplement to
be
transmitted to the Commission for filing no later than the close of
business on
the business day prior to the Closing Date.
(w) If any Written Communication or oral statement in connection
with
the offering of the Securities contains an untrue statement of
material fact or
omits to state a material fact necessary to make the statements, in
light of the
circumstances under which they were made, not misleading at the
time that a
Contract of Sale was entered into, when taken together with all
information that
was conveyed to any person with whom a Contract of Sale was entered
into, then
the Underwriter shall provide any such person with the
following:
(i) Adequate disclosure of the contractual arrangement;
(ii) Adequate disclosure of the person's rights under the
existing Contract of Sale at the time termination is sought;
(iii) Adequate disclosure of the new information that is
necessary to correct the misstatements or omissions in the
information
given at the time of the original Contract of Sale; and
(iv) A meaningful ability to elect to terminate or not
terminate the prior Contract of Sale and to elect to enter into or
not
enter into a new Contract of Sale.
SECTION 2. Purchase and Sale. The commitment of the Underwriters
to
purchase the Underwritten Notes 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 sell to each Underwriter, and each Underwriter
agrees
(except as provided in Sections 11 and 12 hereof) severally and not
jointly to
purchase from the Depositor, the aggregate initial principal
amounts or
percentage interests of the Underwritten Notes of each Class as set
forth
opposite such Underwriter's name on Schedule B, at the purchase
price or prices
set forth on Schedule B.
SECTION 3. Delivery and Payment. Delivery of and payment for
the
Underwritten Notes and the Private Notes shall be made at the
offices of Thacher
Proffitt & Wood LLP, 2 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 [_______] 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 Notes shall be made
to the
Underwriters for the accounts of the several Underwriters against
payment of the
purchase price thereof. The Underwritten Notes 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 Notes will be represented by
book entries
on the records of DTC and participating members thereof. Definitive
Notes will
be available only under the limited circumstances specified in the
Indenture.
SECTION 4. Public Offering of Securities.
(a) It is understood by the parties hereto that, after the
Registration
Statement becomes effective, the Underwriters propose to offer the
Securities
for sale to the public (which may include selected dealers), as set
forth in the
Prospectus and the Underwriters agree that all such offers,
solicitations and
sales by them shall be made in compliance with all applicable laws
and
regulations. Prior to the date of the first contract of sale made
based on the
Definitive Free Writing Prospectus, the Representative has not sold
any
Securities or any security backed by the Mortgage Loans, any
interest in any
Securities or any such security of any Mortgage Loan.
(b) It is understood that the Underwriters will solicit offers
to
purchase the Securities as follows:
(i) Prior to the time you have received the Definitive Free
Writing Prospectus you may, in compliance with the provisions of
this
Agreement, solicit offers to purchase Securities; provided, that
you
shall not accept any such offer to purchase a Securities or any
interest in any Securities or Mortgage Loan or otherwise enter into
any
Contract of Sale for any Securities, any interest in any Securities
or
any Mortgage Loan prior to the investor's receipt of the
Definitive
Free Writing Prospectus.
(ii) Any Free Writing Prospectus (other than the Definitive
Free Writing Prospectus) relating to the Securities used by any
Underwriter in compliance with the terms of this Agreement prior to
the
time such Underwriter has entered into a Contract of Sale for
Securities shall prominently set forth the following statement:
The information in this free writing prospectus is
preliminary, and will be superseded by the Definitive Free
Writing Prospectus. This free writing prospectus is being
delivered to you solely to provide you with information about
the offering of the Securities referred to in this free
writing prospectus and to solicit an offer to purchase the
Securities, when, as and if issued. Any such offer to purchase
made by you will not be accepted and will not constitute a
contractual commitment by you to purchase any of the
Securities until we have accepted your offer to purchase
Securities. We will not accept any offer by you to purchase
Securities, and you will not have any contractual commitment
to purchase any of the Securities until after you have
received the Definitive Free Writing Prospectus. You may
withdraw your offer to purchase Securities at any time prior
to our acceptance of your offer.
"Written Communication" has the same meaning as that term is
defined in
Rule 405 of the 1933 Act Regulations.
(iii) Any Free Writing Prospectus relating to Securities and
used by any Underwriter in connection with marketing the
Securities,
including the Definitive Free Writing Prospectus, shall prominently
set
forth the following statement:
The Securities referred to in these materials are being sold
when, as and if issued. The Underwriters are advised that
Securities may not be issued that have the characteristics
described in these materials. Our obligation to sell such
Securities to the Underwriters is conditioned on the mortgage
loans and notes having the characteristics described in these
materials. If for any reason we do not deliver such
Securities, we will notify the Underwriters, and neither the
issuer nor any underwriter will have any obligation to you to
deliver
all or any portion of the Securities which you have
committed to purchase, and none of the issuer nor any
underwriter will be liable for any costs or damages whatsoever
arising from or related to such non-delivery.
(c) It is understood that you will not enter into a Contract of
Sale
with any investor until the investor has received the Definitive
Free Writing
Prospectus. For purposes of this Agreement, Contract of Sale has
the same
meaning as in Rule 159 of the 1933 Act Regulations and all
Commission guidance
relating to Rule 159, including without limitation the Commission's
statement in
Securities Act Release No. 33-8501 that "a contract of sale can
occur under the
federal securities laws before there is a bilateral contract under
state law,
for example when a purchaser has taken all actions necessary to be
bound but a
seller's obligations remain conditional under state law." The
Definitive Free
Writing Prospectus shall prominently set forth the following
statement:
This Definitive Free Writing Prospectus supersedes the
information in any free writing prospectus previously
delivered in connection with this offering, to the extent that
this Definitive Free Writing Prospectus is inconsistent with
any information in any free writing prospectus previously
delivered in connection with this offering.
(d) It is understood that you may prepare and provide to
prospective
investors certain Free Writing Prospectuses (as defined below),
subject to the
following conditions:
(i) Unless preceded or accompanied by a prospectus satisfying
the requirements of Section 10(a) of the Act, the Underwriters
shall
not convey or deliver any Written Communication to any person
in
connection with the initial offering of the Securities, unless
such
Written Communication either (i) is made in reliance on Rule 134
under
the Act, (ii) constitutes a prospectus satisfying the requirements
of
Rule 430B under the Act, (iii) is the Definitive Free Writing
Prospectus, or (iv) both (1) constitutes a Free Writing Prospectus
(as
defined below) used in reliance on Rule 164 and (2) includes
only
information that is within the definition of ABS Informational
and
Computational Materials as defined in Item 1100 of Regulation
AB.
(ii) Each Underwriter shall comply with all applicable laws
and regulations in connection with the use of Free Writing
Prospectuses, including but not limited to Rules 164 and 433 of
the
1933 Act Regulations and all Commission guidance relating to
Free
Writing Prospectuses, including but not limited to Commission
Release
No. 33-8591.
(iii) For purposes hereof, "Free Writing Prospectus" shall
have the meaning given such term in Rules 405 and 433 of the 1933
Act
Regulations. "Issuer Information" shall mean information included
in a
Free Writing Prospectus that both (i) is within the types of
information specified in clauses (1) to (5) of footnote 271 of
Commission Release No. 33-8591 (Securities Offering Reform) as
shown in
Exhibit A hereto and (ii) has been either prepared by, or has
been
reviewed and approved by, the Depositor. "Underwriter Derived
Information" shall refer to information of the type described in
clause
(5) of such footnote 271 when prepared by an Underwriter.
(iv) All Free Writing Prospectuses provided to prospective
investors, whether or not filed with the Commission, shall bear
a
legend on
each page including the following statement:
"THE DEPOSITOR HAS FILED A REGISTRATION STATEMENT (INCLUDING A
PROSPECTUS) WITH THE SEC FOR THE OFFERING TO WHICH THIS
COMMUNICATION RELATES. BEFORE YOU INVEST, YOU SHOULD READ THE
PROSPECTUS IN THAT REGISTRATION STATEMENT AND OTHER DOCUMENTS
THE ISSUER HAS FILED WITH THE SEC FOR MORE COMPLETE
INFORMATION ABOUT THE ISSUER AND THE OFFERING. YOU MAY GET
THESE DOCUMENTS AT NO CHARGE BY VISITING EDGAR ON THE SEC WEB
SITE AT WWW.SEC.GOV [AT AMERICAN HOME.COM, OR AT UNDERWRITER'S
WEBSITE]. ALTERNATIVELY, THE ISSUER, ANY UNDERWRITER OR ANY
DEALER PARTICIPATING IN THE OFFERING WILL ARRANGE TO SEND YOU
THE PROSPECTUS AT NO CHARGE IF YOU REQUEST IT BY CALLING
TOLL-FREE 1-8[XX-XXX-XXXX].
The Depositor shall have the right to require additional
specific
legends or notations to appear on any Free Writing Prospectus, the
right to
require changes regarding the use of terminology and the right to
determine the
types of information appearing therein.
(v) The Underwriters shall deliver to the Depositor and its
counsel, no later than two business days prior to the proposed date
of
first use thereof, (i) any Free Writing Prospectus prepared by or
on
behalf of the Underwriters that contains any information that,
if
reviewed and approved by the Depositor, would be Issuer
Information,
and (ii) any Free Writing Prospectus or portion thereof that
contains
only a description of the final terms of the Securities after
such
terms have been established for all classes of Securities being
publicly offered. No information in any Free Writing Prospectus
shall
consist of information of a type that is not included within
the
definition of ABS Informational and Computational Materials. To
facilitate filing to the extent required by Section 6(a)(i) or
6(a)(iv), as applicable, all Underwriter Derived Information shall
be
set forth in a document separate from the document including
Issuer
Information. The Underwriters shall provide to the Depositor,
for
filing as provided in Section 6, copies (in such format as required
by
the Depositor) of all Free Writing Prospectuses. All Free
Writing
Prospectuses described in this subsection (v) must be approved by
the
Depositor before the Underwriters provide the Free Writing
Prospectus
to investors pursuant to the terms of this Agreement.
(vi) Each Underwriter agrees that all information included in
the Free Writing Prospectuses shall be prepared, to the extent
possible, based on the information contained in the
Registration
Statement and anticipated to be included in the Prospectus. None of
the
information in the Free Writing Prospectuses may conflict with
the
information contained in the Prospectus or the Registration
Statement.
(vii) The Depositor shall not be obligated to file any Free
Writing Prospectuses that have been determined to contain any
material
error or omission, unless the Depositor is required to file the
Free
Writing Prospectus pursuant to Section 6(a) below. In the event
that an
Underwriter becomes aware that, as of the date on which an
investor
entered into an agreement to purchase any Securities, any Free
Writing
Prospectus prepared by or on behalf of the Underwriters and
delivered
to such investor contained any untrue statement of a material fact
or
omitted to state a material fact necessary in order to make the
statements contained therein, in light of the circumstances under
which
they were made, not misleading, such Underwriter shall notify
the
Depositor thereof as soon as practical but in any event within
one
business day after discovery.
(viii) If the Underwriters do not provide any Free Writing
Prospectuses to the Depositor pursuant to subsection (v) above,
the
Underwriters shall be deemed to have represented, as of the
Closing
Date, that they did not provide any prospective investors with
any
information in written or electronic form in connection with
the
offering of the Securities that is required to be filed with
the
Commission by the Depositor as a Free Writing Prospectus (other
than
the Definitive Free Writing Prospectus) in accordance with the 1933
Act
Regulations.
(ix) In the event of any delay in the delivery by the
Underwriters to the Depositor of any Free Writing Prospectuses
required
to be delivered in accordance with subsection (v) above, or in
the
delivery of the accountant's comfort letter in respect thereof
pursuant
to subsection (vi) above, the Depositor shall have the right to
delay
the release of the Prospectus to investors or to the Underwriters,
to
delay the Closing Date and to take other appropriate actions in
each
case as necessary in order to allow the Depositor to comply with
its
agreement set forth in Section 6 to file the Free Writing
Prospectuses
by the time specified therein.
(x) Each Underwriter represents that it has in place, and
covenants that it shall maintain internal controls and procedures
which
it reasonably believes to be sufficient to ensure full compliance
with
all applicable legal requirements of the 1933 Act Regulations
with
respect to the generation and use of Free Writing Prospectuses
in
connection with the offering of the Securities. In addition,
each
Underwriter shall, for a period of at least three years after the
date
hereof, maintain written and/or electronic records of the
following:
(A) Any written communications in respect of the Securities
not deemed a Prospectus or a Free Writing Prospectus because
its content is limited to the statements permitted by Rule 134
of the Securities Act;
(B) any Free Writing Prospectus used to solicit offers to
purchase Securities;
(C) regarding each Free Writing Prospectus delivered to a
prospective investor, the date of such delivery and identity
of such prospective investor;
(D) regarding each offer to purchase Securities received by
such Underwriter, the identity of the offeror, the date the
offer was made and the proposed terms and allocation of the
Securities offered to be purchased; and
(E) regarding each Contrac
