EXECUTION
FIRSTPLUS HOME LOAN OWNER TRUSTS
ASSET-BACKED SECURITIES
(Issuable in Series)
UNDERWRITING AGREEMENT
Bear, Stearns & Co. Inc., September 10, 1997
as Representative of the
several Underwriters
245 Park Avenue
New York, New York 10167
Ladies and Gentlemen:
FIRSTPLUS Investment Corporation, a corporation organized and
existing under the laws of the State of Nevada (the "Company"), proposes to
cause FIRSTPLUS Home Loan Owner Trusts (each, a "Trust") to offer for sale
from time to time its Asset-Backed Securities evidencing interests in pools
of certain contracts and mortgage loans (the "Securities"). The Securities
may be issued in various series, and within each series, in one or more
classes, in one or more offerings on terms determined at the time of sale
(each such series, a "Series" and each such class, a "Class"). Each Trust
may issue one or more classes of Asset-Backed Notes (the "Notes") pursuant to
an Indenture to be dated as of the respective cut-off date (each, a "Cut-off
Date") as supplemented by one or more supplements to such Indenture (such
Indenture, as supplemented, the "Indenture") between the related Trust and
the indenture trustee named therein (the "Indenture Trustee").
Simultaneously with the issuance of the Notes, the Trust may issue Asset-
Backed Certificates (the "Certificates"), each representing a fractional
undivided ownership interest in the related Trust, pursuant to a separate
Trust Agreement (each, a "Trust Agreement") to be dated as of the respective
Cut-off Date among the Company, one or more affiliates of the Company and the
owner trustee named therein (the "Owner Trustee") and, to the extent
specified therein, the co-owner trustee.
The assets of each Trust will consist primarily of a pool of fixed-
or adjustable-rate, fully-amortizing property improvement and/or debt
consolidation loans, and the related notes and mortgages (collectively, the
"Home Loans") having the original terms to maturity and interest rate types
specified in the related Terms Agreement referred to hereinbelow. Certain of
the Home Loans may be partially insured by the Federal Housing Administration
(the "FHA") of the United States Department of Housing and Urban Development
("HUD") pursuant to Title I of the National Housing Act of 1934, as amended
("Title I Home Loans"). Unless otherwise specified in the related Prospectus
Supplement and the related Sale and Servicing Agreement (as defined below),
the Company or its affiliate, as FHA Insurance Holder (the "FHA Insurance
Holder"), will enter into an FHA claims administration agreement (each, an
"FHA Claims Agreement") with FIRSTPLUS Financial, Inc. ("FFI"), as transferor
and servicer (the "Transferor" or "Servicer"), pursuant to which the Servicer
will administer, process and submit claims (the Servicer in such capacity,
the "FHA Claims Administrator") to the FHA in respect of Title I Home Loans.
Capitalized terms used and not otherwise defined herein shall have the
meanings assigned thereto in the related sale and servicing agreement to be
dated as of the applicable Cut-off Date (the "Sale and Servicing Agreement"),
among the Company as seller (the "Seller"), the Servicer, the Indenture
Trustee and the related Trust, or, if not defined therein, in the respective
Indenture or Trust Agreement.
If and to the extent specified in the related Sale and Servicing
Agreement, in addition to the Home Loans conveyed to the Trust on the Closing
Date (such Home Loans so conveyed to the Trust at such time, the "Initial
Home Loans"), the Seller shall be obligated to convey to the Trust, from time
to time during the period commencing after the Closing Date and ending at the
expiration of the period specified in such Sale and Servicing Agreement
(each, a "Pre-Funding Period")(the date of any such conveyance, a "Subsequent
Transfer Date"), additional Home Loans (any such additional Home Loans so
conveyed to the Trust through the Pre-Funding Period, the "Subsequent Home
Loans").
The Securities may have the benefit of one or more insurance policies
(each, a "Policy") issued by the securities insurer named therein (the
"Securities Insurer") pursuant to an insurance and indemnity agreement among
the Seller, the Indenture Trustee, the Servicer and the Securities Insurer
(the "Insurance Agreement"). This Agreement, the related Terms Agreement,
the Trust Agreement, the Sale and Servicing Agreement, the FHA Claims
Agreement, the Indenture and the Insurance Agreement are sometimes referred
to herein as the "Operative Agreements".
Underwritten offerings of Securities may be made through you or
through an underwriting syndicate managed by you. The Company proposes to
sell one or more Series of the Securities to you and to each of the other
several underwriters, if any, participating in an underwriting syndicate
managed by you.
Whenever the Company determines to make an offering of Securities
(each, an "Offering") pursuant to this Agreement through you, it will enter
into an agreement (the "Terms Agreement") providing for the sale of specified
Classes of Offered Securities (as defined below) to, and the purchase and
public offering thereof by, you and such other underwriters, if any, selected
by you as have authorized you to enter into such Terms Agreement on their
behalf (the underwriters designated in any such Terms Agreement being
referred to herein as "Underwriters," which term shall include you whether
acting alone in the sale of any Offered Securities of any series or as a
member of an underwriting syndicate). Each such Offering which the Company
elects to make pursuant to this Agreement shall be governed by this
Agreement, as supplemented by the related Terms Agreement, and this Agreement
and such Terms Agreement shall inure to the benefit of and be binding upon
each Underwriter. Each Terms Agreement, which shall be substantially in the
form of Exhibit A hereto, shall specify, among other things, the Classes of
Securities to be purchased by the Underwriters (the "Offered Securities"),
whether such Offered Securities constitute Notes or Certificates, the
principal balance or balances of the Offered Securities, each subject to any
stated variance, the names of the Underwriters participating in such offering
(subject to substitution as provided in Section 13 hereof) and the price or
prices at which such Offered Securities are to be purchased by the
Underwriters from the Company.
1. Representations and Warranties. (a) The Company and FFI
------------------------------
represent and warrant to and agree with the Underwriters, as of the date of
the related Terms Agreement, that:
(i) The registration statement specified in the
related Terms Agreement, on Form S-3, including a prospectus, has
been filed with the Securities and Exchange Commission (the
"Commission") for the registration under the Securities Act of
1933, as amended (the "Act"), of asset-backed securities issuable
in series, which registration statement has been declared effective
by the Commission. Such registration statement, as amended to the
date of the related Terms Agreement, including any documents
incorporated by reference therein pursuant to Item 12 of Form S-3
under the Act which were filed under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), on or before the effective
date of the Registration Statement, is hereinafter called the
"Registration Statement," and such prospectus, as such prospectus
is supplemented by a prospectus supplement relating to the Offered
Securities of the related Series, each in the form first filed via
EDGAR by a financial printer or another person designated by the
Company (the "Financial Printer") after the date of the related
Terms Agreement pursuant to Rule 424(b) under the Act, including
any documents incorporated by reference therein pursuant to Item 12
of Form S-3 under the Act which were filed under the Exchange Act
on or before the date of such Prospectus Supplement (such
prospectus supplement, including such incorporated documents (other
than those that relate to Collateral Term Sheets), in the form
first filed after the date of the related Terms Agreement pursuant
to Rule 424(b) is hereinafter called the "Prospectus Supplement"),
is hereinafter called the "Final Prospectus". Any preliminary
prospectus, including any preliminary prospectus supplement which,
as completed, is proposed to be used in connection with the sale of
a Series of Offered Securities and any prospectus filed with the
Commission pursuant to Rule 424(a) of the Act, is hereinafter
referred to as a "Preliminary Prospectus." Any reference herein to
the terms "amend," "amendment" or "supplement" with respect to the
Registration Statement, the Preliminary Prospectus, the Final
Prospectus or the Prospectus Supplement shall be deemed to refer to
and include the filing of any document under the Exchange Act after
the effective date of the Registration Statement or the issue date
of the Preliminary Prospectus, the Final Prospectus or Prospectus
Supplement, as the case may be, deemed to be incorporated therein
by reference pursuant to Item 12 of Form S-3 under the Act.
(ii) The related Registration Statement, at the time
it became effective, and the prospectus contained therein, and any
amendments thereof and supplements thereto filed prior to the date
of the related Terms Agreement, conformed in all material respects
to the requirements of the Act and the rules and regulations of the
Commission thereunder; on the date of the related Terms Agreement
and on each Closing Date (as defined in Section 3 below), the
related Registration Statement and the related Final Prospectus,
and any amendments thereof and supplements thereto, will conform in
all material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder; such Registration
Statement, at the time it became effective, did not contain any
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; such Final Prospectus, on the
date of any filing pursuant to Rule 424(b) and on each Closing
Date, will not include any 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, in the light of the
circumstances under which they are made, not misleading; and the
Form 8-K relating to any Subsequent Home Loans, on the date of any
filing thereof, will not include any untrue statement of a material
fact or omit to state any information which such Final Prospectus
states will be included in such Form 8-K; provided, however, that
the Company makes no representations or warranties as to the
information contained in or omitted from (A) such Registration
Statement or such Final Prospectus (or any supplement thereto) in
reliance upon and in conformity with written information furnished
to the Company by or on behalf of the Underwriters specifically for
use in the preparation thereof or (B) any Current Report (as
defined in Section 5(b) below), or in any amendment thereof or
supplement thereto, incorporated by reference in such Registration
Statement or such Final Prospectus (or any amendment thereof or
supplement thereto).
(iii) The Securities of the related Series will
conform to the description thereof contained in the related Final
Prospectus; and will each on the related Closing Date be duly and
validly authorized, and, when validly executed, countersigned,
issued and delivered in accordance with the related Indenture or
Trust Agreement, as applicable, and, in the case of the Offered
Securities, sold to you as provided herein and in the related Terms
Agreement, will each be validly issued and outstanding and entitled
to the benefits of such Indenture or Trust Agreement, as
applicable, and, if applicable, the related Policy.
(iv) Neither the consummation of the transactions
contemplated by the Operative Agreements to which the Company or
FFI is a party, nor the issuance and sale of the Securities of the
related Series nor the consummation of any other of the
transactions herein or therein contemplated, nor the fulfillment of
the terms hereof or of the related Terms Agreement, will conflict
with any statute, order or regulation applicable to the Company or
FFI of any court, regulatory body, administrative agency or
governmental body having jurisdiction over the Company or FFI or
with any organizational document of the Company or FFI or any
instrument or any agreement under which the Company or FFI is bound
or to which it is a party.
(v) This Agreement and the related Terms Agreement
have been duly authorized, executed and delivered by the Company
and FFI.
(vi) At or prior to the related Closing Date, the
Trust will have entered into the related Indenture, Trust Agreement
and any Insurance Agreement and, assuming the due authorization,
execution and delivery thereof by the other parties thereto, such
Indenture, such Trust Agreement and such Insurance Agreement (on
such Closing Date) will constitute the valid and binding agreement
of the Trust enforceable in accordance with its terms, subject, as
to enforceability, to bankruptcy, insolvency, reorganization or
other similar laws affecting creditors' rights and to general
principles of equity (regardless of whether the enforceability of
such Indenture, such Trust Agreement or such Insurance Agreement is
considered in a proceeding in equity or at law).
(vii) At or prior to the related Closing Date, the
Company will have entered into the related Trust Agreement, Sale
and Servicing Agreement and any related FHA Claims Agreement and,
assuming the due authorization, execution and delivery thereof by
the other parties thereto, such Trust Agreement, Sale and Servicing
Agreement and such FHA Claims Agreement (on such Closing Date) will
constitute the valid and binding agreement of the Company
enforceable in accordance with its terms, subject, as to
enforceability, to bankruptcy, insolvency, reorganization or other
similar laws affecting creditors' rights and to general principles
of equity (regardless of whether the enforceability of such Trust
Agreement, Sale and Servicing Agreement or such FHA Claims
Agreement is considered in a proceeding in equity or at law).
(viii) The FHA Insurance Holder and the Transferor are
each approved by the FHA as a lender under the Title I program and
each holds a valid contract of insurance or approval for insurance
under the Title I program; the FHA Insurance Holder will have
received prior to each Closing Date or Subsequent Transfer Date, as
the case may be, all material consents, authorizations, orders and
approvals from governmental authorities, agencies or bodies and all
other material actions will have been taken prior to such Closing
Date or Subsequent Transfer Date that are necessary to permit the
FHA Insurance Holder to obtain the benefit of the FHA Insurance in
respect of the related Title I Home Loan as described in the
related Final Prospectus ,and the Transferor and the FHA Insurance
Holder will have completed prior to each Closing Date or Subsequent
Transfer Date, as the case may be, all material actions that are
necessary to duly and validly effect the transfer of the FHA
Insurance applicable to the Title I Home Loans into the FHA
contract of insurance coverage reserve account of the FHA Insurance
Holder.
(ix) If applicable, the related Policy, when
delivered, will constitute the legal, valid and binding obligation
of the Securities Insurer, enforceable in accordance with its
terms.
(x) Any funds or accounts established from time to
time with respect to a Series of Securities in accordance with the
related Indenture, Trust Agreement or Sale and Servicing Agreement
will have been properly funded at the Closing Date by the deposit
by the Seller of the requisite cash therein, in the manner
specified by such Indenture, Trust Agreement or Sale and Servicing
Agreement.
(xi) Immediately prior to the transfer and as-
signment thereof on the Closing Date, and on any Subsequent
Transfer Date, the Transferor had good title to, and was
the sole owner of, each Home Loan and all action had been
taken to obtain good record title to each related Home
Loan. Each Home Loan will, as of such date(s), be
transferred free and clear of any lien, mortgage, pledge,
charge, security interest, adverse claim or other
encumbrance.
(xii) There are no actions, proceedings or
investigations pending or threatened by any court,
administrative agency or other tribunal to which the
Company or FFI is a party or of which any of their
properties is the subject (a) which if determined
adversely to the Company or FFI would have a
material adverse effect on the business or financial
condition of the Company or FFI, (b) asserting the
invalidity of the Offered Securities or any
Operative Agreement to which the Company or FFI is a
party, (c) seeking to prevent the issuance of the
Offered Securities or the consummation by the
Company or FFI of any of the transactions
contemplated by any of the Operative Agreements to
which the Company or FFI is a party, or (d) which
might materially and adversely affect the
performance by the Company or FFI of any of their
respective obligations under, or the validity or
enforcement of, the Offered Securities or any of the
Operative Agreements to which it is a party.
(xiii) Neither the Seller, the Transferor, the Trust
nor any funds or accounts established thereunder is an "investment
company" (as defined in the Investment Company Act of 1940, as
amended (the "1940 Act")) or is under the "control" (as such term
is defined in the 1940 Act) of an "investment company" that is
registered or required to be registered under, or is otherwise
subject to the provisions of, the 1940 Act.
(xiv) The Indenture has been qualified under the
Trust Indenture Act of 1939.
2. Purchase and Sale. Subject to the execution of the Terms
-----------------
Agreement for a particular Offering and subject to the terms and conditions
and in reliance upon the representations and warranties set forth in this
Agreement and such Terms Agreement, the Company agrees to sell to each
Underwriter, severally and not jointly, and each Underwriter, severally and
not jointly, agrees to purchase from the Company, the respective original
principal amounts of the related Offered Securities set forth in the related
Terms Agreement opposite the name of such Underwriter, plus any additional
original principal amount of Offered Securities which such Underwriter may be
obligated to purchase pursuant to Section 13 hereof, at the purchase price
therefor set forth in such Terms Agreement (the "Purchase Price").
The parties hereto agree that settlement for all securities sold
pursuant to this Agreement shall take place on the terms set forth herein and
not as set forth in Rule 15c6-1(a) under the Exchange Act.
3. Delivery and Payment. Delivery of and payment for the
--------------------
Offered Securities of a Series shall be made at the specified offices of
Brown & Wood LLP, at 10:00 a.m. New York City time, on the Closing Date
specified in the related Terms Agreement, which date and time may be
postponed by agreement between the Underwriters and the Company (such date
and time being herein called the "Closing Date"). Delivery of such Offered
Securities shall be made to the Underwriters against payment by the
Underwriters of the Purchase Price thereof to or upon the order of the
Company by wire transfer in federal or other immediately available funds.
Unless delivery is made through the facilities of The Depository Trust
Company, the Offered Securities shall be registered in such names and in such
authorized denominations as the Underwriters may request not less than two
full business days in advance of each Closing Date.
The Company agrees to notify the Underwriters at least two business
days before each Closing Date of the exact principal balance evidenced by the
Offered Securities and to have such Offered Securities available for
inspection, checking and packaging in New York, New York, no later than 12:00
noon on the business day prior to such Closing Date.
4. Offering by the Underwriters. It is understood that the
----------------------------
Underwriters propose to offer the Offered Securities of the related Series
for sale to the public as set forth in the related Final Prospectus.
5. Agreements. The Company and FFI agree with the
----------
Underwriters that:
(a) The Company will cause each of the Preliminary Prospectus
and the Final Prospectus relating to the Offered Securities to be filed
pursuant to Rule 424 under the Act and will promptly advise the
Underwriters when such Preliminary Prospectus and such Final Prospectus
as so supplemented have been so filed, and prior to the termination of
the Offering to which such Preliminary Prospectus and Final Prospectus
relate also will promptly advise the Underwriters (i) when any amendment
to the related Registration Statement specifically relating to such
Offered Securities shall have become effective or any further supplement
to such Preliminary Prospectus or such Final Prospectus has been filed,
(ii) of any request by the Commission for any amendment of such
Registration Statement, Preliminary Prospectus or Final Prospectus or
for any additional information, (iii) of the issuance by the Commission
of any stop order suspending the effectiveness of such Registration
Statement or the institution or threatening of any proceeding for that
purpose and (iv) of the receipt by the Company of any written
notification with respect to the suspension of the qualification of such
Offered Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. The Company will not
file any amendment of the related Registration Statement or supplement
to the related Preliminary Prospectus or Final Prospectus (other than
any amendment or supplement specifically relating to one or more Series
of asset-backed securities other than the Series that includes the
related Offered Securities) unless (i) the Company has given reasonable
notice to the Underwriters of its intention to file any such amendment
or supplement, (ii) the Company has furnished the Underwriters with a
copy for their review within a reasonable time prior to filing, and
(iii) the Underwriters do not reasonably object to the filing of such
amendment or supplement. The Company will use its best efforts to
prevent the issuance of any such stop order and, if issued, to obtain as
soon as possible the withdrawal thereof.
(b) The Company will cause any Computational Materials and
any Structural Term Sheets (each as defined in Section 8 below) with
respect to the Offered Securities of a Series that are delivered by an
Underwriter to the Company pursuant to Section 8 to be filed with the
Commission on a Current Report on Form 8-K (each such filing of such
materials and of any Collateral Term Sheets, a "Current Report")
pursuant to Rule 13a-11 under the Exchange Act in accordance with
Section 10 on the business day immediately following the date on which
the related Terms Agreement is executed and delivered. The Company will
cause any Collateral Term Sheet (as defined in Section 9 below) with
respect to the Offered Securities of a Series that is delivered by the
Underwriters to the Company in accordance with the provisions of Section
9 to be filed with the Commission on a Current Report pursuant to Rule
13a-11 under the Exchange Act in accordance with Section 10 on the
business day immediately following the day on which such Collateral Term
Sheet is delivered to counsel for the Company by the Underwriters prior
to 10:30 a.m. In addition, if at any time prior to the availability of
the related Prospectus Supplement, the Underwriters have delivered to
any prospective investor a subsequent Collateral Term Sheet that
reflects, in the reasonable judgment of the Underwriters and the
Company, a material change in the characteristics of the Home Loans for
the related Series from those on which a Collateral Term Sheet with
respect to the related Series previously filed with the Commission was
based, the Company will cause any such Collateral Term Sheet that is
delivered by the Underwriters to the Company in accordance with
the provisions of Section 9 hereof to be filed with the
Commission on a Current Report in accordance with Section 10.
Each such Current Report shall be incorporated by reference in
the related Final Prospectus and the related Registration
Statement.
(c) If, at any time when a prospectus relating to the Offered
Securities of a Series is required to be delivered under the Act, any
event occurs as a result of which the related Final Prospectus as then
amended or supplemented would include any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, or if it shall be necessary
at any time to amend or supplement the related Final Prospectus to
comply with the Act or the rules thereunder, the Company promptly will
prepare and file with the Commission, subject to paragraph (a) of this
Section 5, an amendment or supplement which will correct such statement
or omission or an amendment which will effect such compliance; provided,
however, that the Company will not be required to file any such amendment
or supplement with respect to any Computational Materials, Structural
Term Sheets or Collateral Term Sheets incorporated by reference in the
Final Prospectus other than any amendments or supplements of such
Computational Materials or Structural Term Sheets as are furnished to the
Company by the Underwriters pursuant to Section 8(e) hereof or any
amendments or supplements of such Collateral Term Sheets that are furnished
to the Company by the Underwriters pursuant to Section 9(d) hereof which
are required to be filed in accordance therewith.
(d) The Company will furnish to the Underwriters and counsel
for the Underwriters, without charge, as many signed copies of the
related Registration Statement (including exhibits thereto) and, so long
as delivery of a prospectus by the Underwriters or a dealer may be
required by the Act, as many copies of the related Preliminary
Prospectus and the related Final Prospectus and any supplements thereto
(other than exhibits to the related Current Report), as the Underwriters
may reasonably request.
(e) The Company will furnish such information, execute such
instruments and take such actions as may be reasonably requested by the
Underwriters to qualify the Offered Securities of a Series for sale
under the laws of such jurisdictions as the Underwriters may designate,
to maintain such qualifications in effect so long as required for the
distribution of such Offered Securities and to determine the legality of
such Offered Securities for purchase by investors; provided, however,
that the Company shall not be required to qualify to do business in any
jurisdiction where it is not qualified on the date of the related Terms
Agreement or to take any action which would subject it to general or
unlimited service of process or corporate or franchise taxation as a
foreign corporation in any jurisdiction in which it is not, on the date
of the related Terms Agreement, subject to such service of process or
such taxation.
(f) So long as the Offered Securities of a Series are
outstanding, the Company will furnish to the Underwriters copies of the
annual independent public accountants' servicing report and officer's
compliance certificate when and as the same are so furnished to the
Indenture Trustee pursuant to the related Sale and Servicing Agreement.
In addition, the Company shall, or shall cause the Owner Trustee to,
furnish to the Representative copies of each statement to Holders of the
Offered Securities when and as the same are furnished to such Holders
pursuant to the applicable Operative Agreement, but only if such
statement is not publicly available.
(g) Whether or not the transactions contemplated hereby and
by the related Terms Agreement shall be consummated, the Company shall
be responsible for the payment of any costs and expenses for which
details are submitted, in connection with the performance of its
obligations under this Agreement and the related Terms Agreement,
including, without limitation, (i) the cost and expenses of printing or
otherwise reproducing the related Registration Statement, the related
Preliminary Prospectus, the related Final Prospectus, this Agreement,
the related Terms Agreement, the related Sale and Servicing Agreement,
the related Trust Agreement, the related Indenture and the Offered
Securities, (ii) the cost of delivering the related Offered Securities
to the office of the Underwriters, insured to the satisfaction of the
Underwriters, (iii) the fees and disbursements of the Seller's and the
Servicer's counsel and accountants, (iv) the qualification of the
Securities under state securities or blue sky laws, including filing
fees and the fees and disbursements of counsel for you in connection
therewith and in connection with the preparation of any blue sky survey
and legal investment survey, (v) the printing, word processing and
duplicating expenses and supervision related to preparation of and
delivery to the Underwriters of copies of any document contemplated
hereunder and any blue sky survey and legal investment survey, (vi) the
fees of rating agencies, (vii) the fees and expenses, if any, incurred
in connection with the listing of the Offered Securities on any national
securities exchange, (viii) the fees, if any, of the National
Association of Securities Dealers, Inc., and the fees and expenses of
counsel for you in connection with any required written submission to or
appearance before such entity, (ix) the fees and expenses of the
Indenture Trustee, the Owner Trustee, any custodian, the backup servicer
and the Securities Insurer, and their respective counsel, and (x) any
such other related expenses not specified above.
6. Conditions to the Obligations of the Underwriters. The
-------------------------------------------------
obligations of the Underwriters to purchase the Offered Securities of any
Series shall be subject to the accuracy in all material respects of the
representations and warranties on the part of the Company contained in this
Agreement, as supplemented by the related Terms Agreement, as of the
respective dates thereof and the related Closing Date, to the accuracy of the
statements of the Company made in any applicable officers' certificates
pursuant to the provisions hereof, to the performance by the Company of its
obligations under this Agreement and such Terms Agreement and to the
following additional conditions applicable to the related Offering:
(a) No stop order suspending the effectiveness of the related
Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or threatened.
(b) Brown & Wood LLP, counsel for the Company, shall have
furnished to the Underwriters an opinion, dated the related Closing
Date, in form and substance that is customary and reasonably acceptable
to the Underwriters.
(c) General Counsel for the Company and FFI shall have
furnished to the Underwriters an opinion, dated the related Closing
Date, in form and substance reasonably acceptable to the Underwriters,
to the effect that:
(i) Each of the Company and FFI have been duly
incorporated and each is validly existing as a corporation in good
standing in the jurisdiction of its organization, with corporate
power to own its properties, to conduct its business as described
in the related Final Prospectus and to enter into and perform its
obligations under the Operative Agreements to which it is a party
and to cause the issuance and sale of the Securities of the related
Series, as applicable;
(ii) The Company has full power and authority to
deposit the related Home Loans as contemplated herein and in the
related Trust Agreement, and FFI has full power and authority to
transfer and service the related Home Loans as contemplated in the
related Sale and Servicing Agreement;
(iii) No consent, approval, authorization or order of
any court or governmental agency or body is required for the
consummation by (a) the Company or FFI of the transactions
contemplated in the Operative Agreements to which it is a party or
(b) the Company or FFI of the transactions contemplated herein or
in the related Sale and Servicing Agreement, except such as may be
required under the blue sky laws of any jurisdiction and such other
approvals as have been obtained;
(iv) Neither the issuance of the Securities of the
related Series nor delivery of the related Offered Securities, nor
the consummation of any other of the transactions contemplated in
this Agreement, the related Terms Agreement, the related Sale and
Servicing Agreement, the related Trust Agreement, the related
Indenture or the related Insurance Agreement, if any, nor the
fulfillment of the terms of the related Securities, the related
Sale and Servicing Agreement, the related Indenture, the related
Trust Agreement, this Agreement, the related Terms Agreement or the
related Insurance Agreement, as applicable, will conflict with or
violate any term or provision of the articles of incorporation or
by-laws of the Company or FFI, as applicable, or any statute, order
or regulation applicable to the Company or FFI of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over the Company or FFI, and will not conflict with,
result in a breach or violation or the acceleration of or
constitute a default under the terms of any indenture or other
material agreement or instrument to which the Company or FFI is a
party or by which it is bound; and
(v) There are no actions, proceedings or
investigations pending or, to the best knowledge of such counsel,
threatened, before any court, administrative agency or other
tribunal (i) asserting the invalidity of this Agreement, the
related Terms Agreement, the related Sale and Servicing Agreement,
the related Trust Agreement, the related Indenture, the related
Insurance Agreement, if any, or the related Securities, (ii)
seeking to prevent the issuance of the Securities of the related
Series or the consummation by the Company or FFI, as applicable, of
any of the transactions contemplated by this Agreement, such Terms
Agreement, such Sale and Servicing Agreement, such Indenture, such
Trust Agreement or such Insurance Agreement, if any, or (iii) which
might materially and adversely affect the performance by the
Company or FFI, as applicable, of its obligations under, or the
validity or enforceability of, this Agreement, such Terms
Agreement, such Sale and Servicing Agreement, such Indenture, such
Trust Agreement, such Insurance Agreement, if any, or the related
Securities.
In rendering his opinion such counsel may rely as to matters of fact, to
the extent deemed proper and as stated therein, on certificates of
responsible officers of the Company or FFI or of public officials.
(d) The Underwriters shall have received from Stroock &
Stroock & Lavan LLP, counsel for the Underwriters, such opinion or
opinions, dated the related Closing Date, with respect to the issuance
and sale of the Securities of the related Series, the related
Registration Statement, the related Final Prospectus and such other
related matters in form and substance that is customary and reasonably
acceptable to the Underwriters, and the Company shall have furnished to
such counsel such documents as the Underwriters may reasonably request
for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Underwriters a
certificate of the Company, signed by the President or any Vice
President and dated the related Closing Date, to the effect that the
signer of such certificate has carefully examined the related
Registration Statement (excluding any Current Reports and any other
documents incorporated by reference therein), the related Final
Prospectus, the Form 8-K relating to the Subsequent Home Loans, this
Agreement and the related Terms Agreement and that:
(i) the representations and warranties of the
Company and FFI in this Agreement, as supplemented by the related
Terms Agreement, are true and correct in all material respects on
and as of the related Closing Date with the same effect as if made
on such Closing Date, and the Company has complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to such Closing Date;
(ii) no stop order suspending the effectiveness of
such Registration Statement has been issued and no proceedings for
that purpose have been instituted or, to his or her knowledge,
threatened; and
(iii) nothing has come to his or her attention that
would lead them to believe that such Registration Statement
(excluding any Current Report) contains any untrue statement of a
material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, that the related Final Prospectus (excluding any
related Current Report) contains any untrue statement of a material
fact or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, or that the Form 8-K relating to
the Subsequent Home Loans includes any untrue statement of a
material fact or omits to state any information which the Final
Prospectus states will be included in such Form 8-K.
(f) Counsel for the Indenture Trustee shall have furnished to
the Underwriters an opinion, dated the related Closing Date, in form and
substance that is customary and reasonably acceptable to the
Underwriters regarding certain matters relating to the Indenture
Trustee.
(g) Counsel for the Owner Trustee shall have furnished to the
Underwriters an opinion, dated the related Closing Date, in form and
substance that is customary and reasonably acceptable to the
Underwriters regarding certain matters relating to the Owner Trustee.
In addition, such counsel shall furnish to the Underwriters such
opinions as to the treatment of the Trust for purposes of state tax law
where the Owner Trustee maintains possession of the assets of the Trust
as are customary and reasonably satisfactory to the Underwriters.
(h) Ernst & Young LLP shall have furnished to the
Underwriters one or more letters in form and substance that is customary
and reasonably satisfactory to the Underwriters to the effect that they
have performed certain specified procedures requested by the
Underwriters with respect to certain information relating to the Offered
Securities, the Home Loans and certain matters relating to the Company
and the Servicer.
(i) The Policy relating to the Offered Securities of the
related Series, if any, shall have been duly executed and issued prior
to the Closing Date, in form and substance that is customary and
reasonably satisfactory to the Underwriters, and shall conform in all
respects to the description thereof in the Prospectus.
(j) If applicable, counsel for the Securities Insurer shall
have furnished to the Underwriters an opinion, dated the related Closing
Date, in form and substance that is customary and reasonably acceptable
to the Underwriters regarding certain matters relating to the Securities
Insurer.
In rendering such opinion such counsel may rely as to matters of
fact, to the extent deemed proper and as stated therein, on certificates
of responsible officers of the Securities Insurer, if any, or of public
officials.
(k) The Owner Trustee shall have received from the Seller all
funds required to be delivered by the Seller to be deposited in any
account required to be established in accordance with the related Trust
Agreement.
(l) If applicable, the Servicer, as FHA Claims Administrator,
and the Seller, as FHA Insurance Holder, shall have executed and
delivered the FHA Claims Agreement in form and substance reasonably
acceptable to the Underwriters.
(m) The Offered Securities of the related Series shall have
received the ratings specified in the related Terms Agreement (the
"Required Ratings").
(n) On or prior to the Closing Date, there shall have been no
downgrading, nor shall any notice have been given of (i) any intended or
possible downgrading or (ii) any review or possible changes, the
direction of which has not been indicated, of the rating accorded and
originally requested by the Company relating to any previously issued
asset-backed securities of the Company by any "nationally recognized
statistical rating organization" (as such term is defined for purposes
of the Exchange Act).
(o) If applicable, on or prior to the Closing Date, there has
been no downgrading, nor shall any notice have been given of (i) any
intended or possible downgrading or (ii) any review or possible changes,
the direction of which has not been indicated, of the rating accorded
the Securities Insurer's claims paying ability by any "nationally
recognized statistical rating organization" (as such term is defined for
purposes of the Exchange Act).
(p) Subsequent to the date of the related Terms Agreement,
there shall not have been any change, or any development involving a
prospective change, in or affecting the business or properties of (i)
the Company, its parent company or any of its subsidiaries, (ii) the
Transferor or (iii) the Securities Insurer, if any, which the
Underwriters conclude, in their reasonable judgment, after consultation
with the Company, materially impairs the investment quality of the
Offered Securities of the related Series so as to make it impractical or
inadvisable to proceed with the public offering or the delivery of such
Offered Securities as contemplated by the related Final Prospectus.
(q) Prior to the related Closing Date, the Company shall have
furnished to the Underwriters such further information, certificates and
documents as the Underwriters may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects with respect to the particular
Offered Securities of a Series when and as provided in this Agreement and the
related Terms Agreement, or if any of the opinions and certificates mentioned
above or elsewhere in this Agreement and the related Terms Agreement shall
not be in all material respects reasonably satisfactory in form and substance
to the Underwriters and their counsel, this Agreement (with respect to the
related Offered Securities) and the related Terms Agreement and all
obligations of the Underwriters hereunder (with respect to the related
Offered Securities) and thereunder may be canceled at, or at any time prior
to, the related Closing Date by the Underwriters. Notice of such
cancellation shall be given to the Company in writing, or by telephone or
telegraph confirmed in writing.
7. Indemnification and Contribution. (a) The Company and FFI,
--------------------------------
jointly and severally, agree to indemnify and hold harmless each Underwriter
and each person who controls any Underwriter within the meaning of the Act or
the Exchange Act against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject under the
Act, the Exchange Act, or other Federal or state statutory law or regulation,
at common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
(i) any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement relating to the Offered Securities of
the applicable Series as it became effective or in any amendment thereof or
supplement thereto, (ii) the omission or alleged omission to state in such
Registration Statement a material fact required to be stated therein or
necessary to make the statements therein not misleading, (iii) any untrue
statement or alleged untrue statement of a material fact contained in the
related Preliminary Prospectus or the related Final Prospectus or in the Form
8-K referred to in such Final Prospectus, or any amendment thereof or
supplement thereto, or (iv) the omission or alleged omission to state in such
Preliminary Prospectus, such Final Prospectus or such Form 8-K a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and agree to
reimburse each such indemnified party for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided,
however, that (i) the Company and FFI 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 any such untrue statement or alleged untrue statement or
omission or alleged omission made therein (A) in reliance upon and in
conformity with written information furnished to the Company as herein stated
by or on behalf of any Underwriter through you specifically for use in
connection with the preparation thereof or (B) in any Computational Materials
or ABS Term Sheets (as defined in Section 9(a) below) furnished to
prospective investors by the Underwriters or any Current Report or any
amendment or supplement thereof, except to the extent that any untrue
statement or alleged untrue statement therein or omission or alleged omission
therefrom results directly from an error (a "Home Loan Pool Error") in the
information concerning the characteristics of the Home Loans furnished by the
Company to any Underwriter in writing or by electronic transmission that was
used in the preparation of either (x) any Computational Materials or ABS Term
Sheets (or amendments or supplements thereof) included in such Current Report
(or amendment or supplement thereof) or (y) any written or electronic
materials furnished to prospective investors on which the Computational
Materials (or amendments or supplements) were based, and (ii) such indemnity
with respect to any Corrected Statement (as defined below) in such Final
Prospectus (or supplement thereto) shall not inure to the benefit of any
Underwriter (or any person controlling such Underwriter) from whom the person
asserting any loss, claim, damage or liability purchased the Securities of
the related Series that are the subject thereof if the untrue statement or
omission of a material fact contained in such Final Prospectus (or supplement
thereto) was corrected (a "Corrected Statement") in a supplement to such
Final Prospectus, such supplement was furnished by the Company to the
Underwriters prior to the delivery of the confirmation of sale of such
Securities, and the person asserting such loss, claim, damage or liability
did not receive a copy of such supplement at or prior to the confirmation of
the sale of such Securities, and (iii) such indemnity with respect to any
Home Loan Pool Error shall not inure to the benefit of any Underwriter (or
any person controlling such Underwriter) from whom the person asserting any
loss, claim, damage or liability received any Computational Materials (or any
written or electronic materials on which the Computational Materials are
based) or ABS Term Sheets that were prepared on the basis of such Home Loan
Pool Error, if, prior to the time of confirmation of the sale of the
applicable Securities to such person, the Company notified the Underwriters
of the Home Loan Pool Error or provided in written or electronic form
information superseding or correcting such Home Loan Pool Error (in any such
case, a "Corrected Home Loan Pool Error"), and such Underwriter failed to
notify such person thereof or to deliver to such person corrected
Computational Materials (or underlying written or electronic materials) or
ABS Term Sheets. This indemnity agreement will be in addition to any
liability that the Company or FFI may otherwise have.
(b) Each Underwriter agrees, severally, and not jointly, to
indemnify and hold harmless the Company, each of its directors, each of its
officers who signs the Registration Statement relating to the Offered
Securities of the applicable Series, and each person who controls the Company
within the meaning of the Act or the Exchange Act to the same extent as the
foregoing indemnities from the Company to each Underwriter, but only with
reference to (A) written information furnished to the Company by or on behalf
of such Underwriter through you specifically for use in the preparation of
the documents referred to in the foregoing indemnity with respect to the
related Series, or (B) any Computational Materials or ABS Term Sheets (or
amendments or supplements thereof) delivered to prospective investors by such
Underwriter, including any Computational Materials or ABS Term Sheets that
are furnished to the Company by such Underwriter pursuant to Section 8 and
incorporated by reference in such Registration Statement, the related
Preliminary Prospectus or the related Final Prospectus or any amendment or
supplement thereof (except that no such indemnity shall be available for any
losses, claims, damages or liabilities, or actions in respect thereof,
resulting from any Home Loan Pool Error, other than a Corrected Home Loan
Pool Error). This indemnity agreement will be in addition to any liability
that each Underwriter may otherwise have. The Company acknowledges that the
Underwriter-Provided Information constitutes the only information furnished
in writing by or on behalf of the Underwriters for inclusion in the related
Preliminary Prospectus or Final Prospectus (other than any Computational
Materials or ABS Term Sheets (or amendments or supplements thereof)), and the
Underwriters confirm that such statements are correct. "Underwriter-Provided
Information" means any statements provided to the Company by the Underwriters
specifically for use in the preparation of the related Preliminary Prospectus
or Final Prospectus and designated as such in the Terms Agreement for the
related Series, and any Computational Materials or ABS Term Sheets furnished
to prospective investors in the related Securities.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against an indemnifying
party under this Section 7, notify such indemnifying party in writing of the
commencement thereof; but the omission so to notify such indemnifying party
will not relieve it from any liability which it may have to any indemnified
party otherwise than under this Section 7. In case any such action is
brought against any indemnified party, and it notifies the indemnifying party
or parties of the commencement thereof, the indemnifying party or parties
will be entitled to participate therein, and to the extent that they may
elect by written notice delivered to an indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party;
provided, however, that if the defendants in any such action include both an
indemnified party and an indemnifying party and such indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to
those available to an indemnifying party, such indemnified party or parties
shall have the right to select separate counsel to assert such legal defenses
and to otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from an indemnifying
party or parties to such indemnified party of their election so to assume the
defense of such action and approval by such indemnified party of counsel,
such indemnifying party or parties will not be liable to such indemnified
party under this Section 7 for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof
unless (i) such indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the
proviso to the immediately preceding sentence (it being understood, however,
that the indemnifying party or parties shall not be liable for the expenses
of more than one separate counsel (in addition to local counsel, if retention
of local counsel is necessary in the determination of the indemnifying party)
approved by the indemnified party or parties in the case of subparagraph (a)
or (b), representing the indemnified parties under subparagraph (a) or (b),
who are parties to such action), (ii) the indemnifying party or parties shall
not have employed counsel satisfactory to the indemnified party or parties to
represent such indemnified party or parties within a reasonable time after
notice of commencement of the action or (iii) the indemnifying party or
parties have authorized the employment of counsel for an indemnified party at
the expense of the indemnifying parties; and except that, if clause (i) or
(iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii).
(d) If the indemnification provided for in paragraph (a) or (b) of
this Section 7 is due in accordance with its terms but is for any reason held
by a court to be unavailable from the Company, FFI or any Underwriter, on
grounds of policy or otherwise, or if an indemnified party failed to give
notice under paragraph (c) of this Section 7 in respect of a claim otherwise
subject to indemnification in accordance with paragraph (a) or (b) of this
Section 7, the Company, FFI and each Underwriter shall contribute to the
aggregate losses, claims, damages and liabilities (including legal and other
expenses reasonably incurred in connection with investigating or defending
same) to which the Company, FFI and such Underwriter may be subject in such
proportion so that such Underwriter is responsible for that portion
represented by the difference between the portion of the proceeds to the
Company in respect of the Offered Securities underwritten by such Underwriter
for the related Series and the portion of the total proceeds received by such
Underwriter from the sale of such Offered Securities (the "Underwriting
Discount"), and the Company and FFI are responsible for the balance;
provided, however, that in no case shall any such Underwriter be
responsible under this subparagraph for any amount in excess of such
Underwriting Discount applicable to the Offered Securities purchased by such
Underwriter pursuant to this Agreement and the related Terms Agreement.
Notwithstanding anything to the contrary in this Section 7(d), no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 7,
each person who controls any Underwriter within the meaning of either the Act
or the Exchange Act shall have the same rights to contribution as such
Underwriter, and each person who controls the Company or FFI within the
meaning of either the Act or the Exchange Act, each officer of the Company
who shall have signed the Registration Statement and each director of the
Company or FFI shall have the same rights to contribution as the Company or
FFI, subject in each case to the immediately preceding sentence of this
paragraph (d).
8. Computational Materials and Structural Term Sheets. (a) In
--------------------------------------------------
accordance with Section 10, the Underwriters shall deliver to the Company one
complete copy of all materials provided by the Underwriters to prospective
investors in such Offered Securities which constitute (i) "Computational
Materials" within the meaning of the no-action letter dated May 20, 1994
issued by the Division of Corporation Finance of the Commission to Kidder,
Peabody Acceptance Corporation I, Kidder, Peabody & Co. Incorporated, and
Kidder Structured Asset Corporation and the no-action letter dated May 27,
1994 issued by the Division of Corporation Finance of the Commission to the
Public Securities Association (together, the "Kidder Letters"), the filing of
which material is a condition of the relief granted in such letters (such
materials being the "Computational Materials"), and (ii) "Structural Term
Sheets" within the meaning of the no-action letter dated February 17, 1995
issued by the Division of Corporation Finance of the Commission to the Public
Securities Association (the "PSA Letter"), the filing of which material is a
condition of the relief granted in such letter (such materials being the
"Structural Term Sheets"). Each delivery of Computational Materials and
Structural Term Sheets to the Company pursuant to this paragraph (a) shall be
effected in accordance with Section 10.
(b) Each Underwriter represents and warrants to and agrees with
the Company, as of the date of the related Terms Agreement and as of the
Closing Date, that:
(i) the Computational Materials furnished to the Company by
such Underwriter pursuant to Section 8(a) constitute (either in
original, aggregated or consolidated form) all of the materials
furnished to prospective investors by such Underwriter prior to the
time of delivery thereof to the Company that are required to be
filed with the Commission with respect to the related Offered
Securities in accordance with the Kidder Letters, such
Computational Materials comply with the requirements of the Kidder
Letters, and delivery of such Computational Materials was made to
investors in a manner in accordance with the provisions of the
Kidder Letters;
(ii) the Structural Term Sheets furnished to the Company by
such Underwriter pursuant to Section 8(a) constitute all of the
materials furnished to prospective investors by such Underwriter
prior to the time of delivery thereof to the Company that are
required to be filed with the Commission as "Structural Term
Sheets" with respect to the related Offered Securities in
accordance with the PSA Letter, such Structural Term Sheets comply
with the requirements of the PSA Letter, and delivery of such
Structural Term Sheets was made to investors in a manner in
accordance with the provisions of the PSA Letter; and
(iii) on the date any such Computational Materials or
Structural Term Sheets with respect to such Offered Securities (or
any written or electronic materials furnished to prospective
investors on which the Computational Materials are based) were last
furnished to each prospective investor by such Underwriter and on
the date of delivery thereof to the Company pursuant to Section
8(a) and on the related Closing Date, such Computational Materials
(or such other materials) or Structural Term Sheets did not and
will not include any untrue statement of a material fact.
Notwithstanding the foregoing, each Underwriter makes no representation or
warranty as to whether any Computational Materials or Structural Term Sheets
(or any written or electronic materials on which the Computational Materials
are based) included or will include any untrue statement resulting directly
from any Home Loan Pool Error (except any Corrected Home Loan Pool Error,
with respect to materials prepared after the receipt by the Underwriters from
the Company of materials superseding or correcting such Home Loan Pool
Error).
(c) Each Underwriter acknowledges and agrees that any
Computational Materials or Structural Term Sheets with respect to any Series
of Securities furnished to prospective investors in the related Securities
have been prepared and disseminated by or on behalf of such Underwriter and
not by or on behalf of the Company, and that such materials included and
shall include a disclaimer in form satisfactory to the Company to the effect
that such materials have been prepared and disseminated by such Underwriter,
and that the content and accuracy of such materials have not been reviewed by
the Company.
(d) If, at any time when a prospectus relating to the Offered
Securities of a Series is required to be delivered under the Act, it shall be
necessary to amend or supplement the related Final Prospectus as a result of
an untrue statement of a material fact contained in any Computational
Materials or Structural Term Sheets provided by any Underwriter pursuant to
this Section 8, or if it shall be necessary to amend or supplement any
Current Report relating to any Computational Materials or Structural Term
Sheets to comply with the Act or the rules thereunder, such Underwriter
promptly will prepare and furnish to the Company for filing with the
Commission an amendment or supplement which will correct such statement or an
amendment which will effect such compliance. Each Underwriter represents and
warrants to the Company, as of the date of delivery by it of such amendment
or supplement to the Company, that such amendment or supplement will not
include any untrue statement of a material fact or, when read in conjunction
with the related Final Prospectus and Prospectus Supplement, omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that each such
Underwriter makes no representation or warranty as to whether any such
amendment or supplement will include any untrue statement resulting directly
from any Home Loan Pool Error (except any Corrected Home Loan Pool Error,
with respect to any such amendment or supplement prepared after the receipt
by the Underwriters from the Company of materials superseding or correcting
such Corrected Home Loan Pool Error).
9. Collateral Term Sheets. (a) Prior to the delivery of any
----------------------
"Collateral Term Sheet" within the meaning of the PSA Letter, the filing of
which material is a condition of the relief granted in such letter (such
material being the "Collateral Term Sheets"), to a prospective investor in
the Offered Securities, the Underwriters shall notify the Company and its
counsel by telephone of their intention to deliver such materials and the
approximate date on which the first such delivery of such materials is
expected to occur. Not later than 10:30 a.m., New York time, on the business
day immediately following the date on which any Collateral Term Sheet was
first delivered to a prospective investor in the Offered Securities, the
Underwriters shall deliver to the Company one complete copy of all materials
provided by the Underwriters to prospective investors in such Offered
Securities which constitute "Collateral Term Sheets." Each delivery of a
Collateral Term Sheet to the Company pursuant to this paragraph (a) shall be
effected in accordance with Section 10. (Collateral Term Sheets and
Structural Term Sheets are, together, referred to herein as "ABS Term
Sheets.") At the time of each such delivery, the Underwriter making such
delivery shall indicate in writing that the materials being delivered
constitute Collateral Term Sheets, and, if there has been any prior such
delivery with respect to the related Series, shall indicate whether such
materials differ in any material respect from any Collateral Term Sheets
previously delivered to the Company with respect to such Series pursuant to
this Section 9(a) as a result of the occurrence of a material change in the
characteristics of the related Home Loans.
(b) Each Underwriter represents and warrants to and agrees with
the Company, as of the date of the related Terms Agreement and as of the
Closing Date, that:
(i) The Collateral Term Sheets furnished to the Company
by such Underwriter pursuant to Section 9(a) constitute all of the
materials furnished to prospective investors by such Underwriter prior
to time of delivery thereof to the Company that are required to be filed
with the Commission as "Collateral Term Sheets" with respect to the
related Offered Securities in accordance with the PSA Letter, such
Collateral Term Sheets comply with the requirements of the PSA Letter,
and delivery of such Collateral Term Sheets was made to investors in a
manner in accordance with the provisions of the PSA Letter; and
(ii) On the date any such Collateral Term Sheets with
respect to such Offered Securities were last furnished to each
prospective investor by such Underwriter and on the date of delivery
thereof to the Company pursuant to Section 9(a) and on the related
Closing Date, such Collateral Term Sheets did not and will not include
any untrue statement of a material fact.
Notwithstanding the foregoing, each Underwriter makes no representation or
warranty as to whether any Collateral Term Sheet included or will include any
untrue statement resulting directly from any Home Loan Pool Error (except any
Corrected Home Loan Pool Error, with respect to materials prepared after the
receipt by the Underwriters from the Company of materials superseding or
correcting such Corrected Home Loan Pool Error).
(c) Each Underwriter acknowledges and agrees that any Collateral
Term Sheets with respect to any Series of Securities furnished to prospective
investors in the related Securities have been prepared and disseminated by or
on behalf of such Underwriter and not by or on behalf of the Company, and
that such materials shall include a disclaimer in form satisfactory to the
Company to the effect set forth in Section 8(c) hereof, and to the effect
that the information contained in such materials supersedes the information
contained in any prior Collateral Term Sheet with respect to such Series of
Securities and will be superseded by the description of the related Home
Loans in the related Prospectus Supplement . Each Underwriter agrees that it
will not represent to prospective investors that any Collateral Term Sheets
were prepared or disseminated on behalf of the Company.
(d) If, at any time when a prospectus relating to the Offered
Securities of a Series is required to be delivered under the Act, it shall be
necessary to amend or supplement the related Final Prospectus as a result of
an untrue statement of a material fact contained in any Collateral Term
Sheets provided by any Underwriter pursuant to this Section 9, or if it shall
be necessary to amend or supplement any Current Report relating to any
Collateral Term Sheets to comply with the Act or the rules thereunder, such
Underwriter promptly will prepare and furnish to the Company for filing with
the Commission an amendment or supplement which will correct such statement
or omission or an amendment which will effect such compliance. Each
Underwriter represents and warrants to the Company, as of the date of
delivery of such amendment or supplement to the Company, that such amendment
or supplement will not include any untrue statement of a material fact or,
when read in conjunction with the related Final Prospectus and Prospectus
Supplement, omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided, however,
that each such Underwriter makes no representation or warranty as to whether
any such amendment or supplement will include any untrue statement resulting
directly from any Home Loan Pool Error (except any Corrected Home Loan Pool
Error, with respect to any such amendment or supplement prepared after the
receipt by the Underwriters from the Company of materials superseding or
correcting such Corrected Home Loan Pool Error).
10. Delivery and Filing of Computational Materials, Collateral
----------------------------------------------------------
Term Sheets and Structural Term Sheets.
- --------------------------------------
(a) Any delivery of Computational Materials, Collateral Term
Sheets or Structural Term Sheets that is required to be made by an
Underwriter to the Company hereunder shall be effected by the delivery
of four copies to counsel for the Company and one copy in computer
readable format to the Financial Printer on or prior to 10:30 a.m. on
the date so specified herein.
(b) The Company shall cause the Financial Printer to file with the
Commission on a Current Report on Form 8-K any such Computational
Materials, Collateral Term Sheets or Structural Term Sheets promptly
following the delivery thereof pursuant to the preceding subsection.
11. Termination. This Agreement (with respect to a particular
-----------
Offering) and the related Terms Agreement shall be subject to termination in
the absolute discretion of the Underwriters, by notice given to the Company
prior to delivery of and payment for the related Offered Securities, if prior
to the related Closing Date (i) trading in securities generally on the New
York Stock Exchange shall have been suspended or materially limited, (ii) a
general moratorium on commercial banking activities in New York shall have
been declared by either federal or New York State authorities, or (iii) there
shall have occurred any outbreak or material escalation of hostilities or
other calamity or crisis the effect of which on the financial markets of the
United States is such as to make it, in the reasonable judgment of the
Underwriters, impracticable to market such Offered Securities.
12. Representations and Indemnities to Survive Delivery. The
---------------------------------------------------
agreements, representations, warranties, indemnities and other statements of
the Company, FFI or their officers and of the Underwriters set forth in or
made pursuant to this Agreement and the related Terms Agreement will remain
in full force and effect, regardless of any investigation made by or on
behalf of the Underwriters or the Company, FFI or any of the officers,
directors or controlling persons referred to in Section 7 hereof, and will
survive delivery of and payment for the related Offered Securities. The
provisions of Section 7 hereof shall survive the termination or cancellation
of this Agreement and the related Terms Agreement.
13. Default by One or More of the Underwriters. If one or more
------------------------------------------
of the Underwriters shall fail on the Closing Date to purchase the Offered
Securities which it or they are obligated to purchase hereunder and under the
applicable Terms Agreement (the "Defaulted Securities"), you 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 Securities in such amounts as may be
agreed upon and upon the terms set forth herein and in the applicable Terms
Agreement. If, however, you have not completed such arrangements within such
24-hour period, then:
(a) if the aggregate original principal balance of Defaulted
Securities does not exceed 10% of the aggregate original principal
balance of the Offered Securities to be purchased pursuant to such Terms
Agreement, the non-defaulting Underwriters named in such Terms Agreement
shall be obligated to purchase the full amount thereof in the
proportions that their respective underwriting obligations thereunder
bear to the underwriting obligations of all non-defaulting Underwriters;
and
(b) if the aggregate original principal balance of Defaulted
Securities exceeds 10% of the aggregate original principal balance of
the Offered Securities to be purchased pursuant to such Terms Agreement,
the applicable Terms Agreement shall terminate without any liability on
the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 13 and nothing in this
Agreement shall relieve any defaulting Underwriter from liability in respect
of its default.
In the event of any such default which does not result in a termination
of this Agreement or such applicable Terms Agreement, either you or the
Company shall have the right to postpone the Closing Date for a period of
time not exceeding seven days in order to effect any required changes in the
Registration Statement or in any other documents or arrangements.
14. Guarantor. FIRSTPLUS Financial Group, Inc., the parent of
---------
the Company and FFI ("FFG"), shall guarantee any obligation or liability of
the Company or FFI pursuant to Section 7 hereof. FFG's acceptance of its
guarantee obligation is acknowledged by the execution of the signature page
of this Agreement by an authorized signatory of FFG.
15. Successors. This Agreement and the related Terms Agreement
----------
will inure to the benefit of and be binding upon the parties hereto and
thereto and their respective successors and the officers, directors and
controlling persons referred to in Section 7 hereof, and their successors and
assigns, and no other person will have any right or obligation hereunder or
thereunder. No purchaser of any Offered Security from the Underwriters shall
be deemed a successor or assign by reason of such purchase.
16. APPLICABLE LAW. THIS AGREEMENT AND THE RELATED TERMS
--------------
AGREEMENT WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED
THEREIN.
17. Miscellaneous. This Agreement, as supplemented by the
-------------
related Terms Agreement, supersedes all prior and contemporaneous agreements
and understandings relating to the subject matter hereof. This Agreement and
the related Terms Agreement or any term of each may not be changed, waived,
discharged or terminated except by an affirmative written agreement made by
the party against whom enforcement of the change, waiver, discharge or
termination is sought. The headings in this Agreement and the related Terms
Agreement are for purposes of reference only and shall not limit or otherwise
affect the meaning hereof or thereof.
18. Notices. All communications by one party hereunder to all
-------
other parties hereunder will be in writing and effective only on receipt by
such other parties, and will be delivered as follows: (A) to the
Underwriters at the address first above written; (B) to the Company at 3773
Howard Hughes Parkway, Suite 300N, Las Vegas, Nevada 89109, Attention:
Michael Orendorf; and (C) to FFI at FIRSTPLUS Financial, Inc., 1600 Viceroy,
7th Floor, Dallas, Texas 75235, Attention: Christopher Gramlich.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the undersigned a counterpart hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company, FFI and the Underwriters.
Very truly yours,
FIRSTPLUS Investment Corporation
By: /s/ Lee F. Reddin
---------------------------------------
Name: Lee F. Reddin
Title: Vice President
FIRSTPLUS Financial Inc.
By: /s/ Lee F. Reddin
---------------------------------------
Name: Lee F. Reddin
Title: Vice President
Acknowledged by:
FIRSTPLUS Financial Group, Inc.
By: /s/ Christopher J. Gramlich
---------------------------------------
Name: Christopher J. Gramlich
Title: Senior Vice President
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above written.
Bear, Stearns & Co. Inc.
as Representative of
the several Underwriters
By: /s/ Matthew E. Perkins
---------------------------------------------
Name: Matthew E. Perkins
Title: Associate Director
EXHIBIT A
FIRSTPLUS HOME LOAN TRUST -
--- --
ASSET-BACKED SECURITIES
TERMS AGREEMENT
---------------
(to Underwriting Agreement,
dated September 10, 1997
among the Company, FFI and the Representative)
FIRSTPLUS Investment Corporation (Date)
3773 Howard Hughes Parkway
Suite 300N
Las Vegas, Nevada 89109
FIRSTPLUS Financial Inc.
1600 Viceroy
Dallas, Texas 75235
This letter supplements and modifies the captioned Underwriting
Agreement (the "Underwriting Agreement") with respect to the Series __-__
Securities solely as it relates to the purchase and sale of the Offered
Securities described below. The Series - Securities are registered
---- --
with the Securities and Exchange Commission by means of an effective
Registration Statement (No. ). Capitalized terms used and not
-----
defined herein have the meanings given them in the Underwriting Agreement.
Section 1. The Home Loan Pool: The Series -
------------------ ----- --
Securities shall evidence the entire beneficial ownership interest in a
mortgage pool (the "Home Loan Pool") of mortgage loans (the "Home Loans")
having the characteristics described in the Prospectus Supplement dated the
date hereof.
Section 2. The Securities: The Offered Securities shall be
--------------
issued as follows:
(a) Classes: The Offered Securities shall be issued with the
-------
following Class designations, interest rates and principal balances, subject
in the aggregate to the variance referred to in the Final Prospectus:
Principal Interest Class Purchase
Class Balance Rate Price Percentage
Each of the Underwriters agrees, severally and not jointly, subject to
the terms and provisions herein and of the captioned Underwriting Agreement,
to purchase the principal balances of the Classes of Series
- - Securities specified opposite its name below.
--
Class Underwriter Underwriter Underwriter
- ----- ----------- ----------- -----------
Underwriter
- -----------
(b) The Offered Securities shall have such other characteristics
as described in the related Final Prospectus.
Section 3. Purchase Price: The Purchase Price for each
--------------
Class of the Offered Securities shall be the Class Purchase Price Percentage
therefor (as set forth in Section 2(a) above) of the initial class principal
balance thereof plus accrued interest at the applicable interest rate per
annum of each such Class from and including the Cut-off Date up to, but not
including, (the "Closing Date").
-------------
Section 4. Required Ratings: The Offered Securities shall
----------------
have received Required Ratings of at least ( ) from ( ).
Section 5. Underwriter-Provided Information: The Company
--------------------------------
acknowledges that the information set forth in (i) the (second sentence) of
the paragraph immediately preceding the table on the cover page of the Final
Prospectus, (ii) the last paragraph on the cover page of the Final
Prospectus, (iii) the first table under the caption "( )"
and the ( ) sentence immediately thereafter in the Final Prospectus and
(iv) the ( ) table under the caption "( )" and the ( )
and ( ) sentences immediately thereafter in the Final Prospectus, as such
information relates to the Securities, constitute the only information
furnished in writing by or on behalf of the Underwriters for inclusion in
such Final Prospectus, and the Underwriters confirm that such statements are
correct.
Section 6. Securities Insurer:
------------------
Section 7. Location of Closing:
-------------------
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the undersigned a counterpart hereof,
whereupon this letter and your acceptance shall represent a binding agreement
between the Underwriters and the Company.
Very truly yours,
Bear, Stearns & Co. Inc.
as Representative of the several
Underwriters
By:
---------------------------------------
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above written.
FIRSTPLUS Investment Corporation
By:
---------------------------------------------
Name:
Title:
FIRSTPLUS Financial Inc.
By:
---------------------------------------------
Name:
Title:
ACKNOWLEDGED BY:
FIRSTPLUS Financial Group, Inc.
By:
---------------------------------------------
Name:
Title:
EXECUTION
FIRSTPLUS HOME LOAN TRUST 1997-3
ASSET-BACKED SECURITIES
TERMS AGREEMENT
---------------
(to Underwriting Agreement,
dated September 10, 1997
among the Company, FFI, FFG and the Representative)
FIRSTPLUS Investment Corporation September 10, 1997
3773 Howard Hughes Parkway
Suite 300N
Las Vegas, Nevada 89109
FIRSTPLUS Financial Inc.
1600 Viceroy
Dallas, Texas 75235
This letter supplements and modifies the captioned Underwriting
Agreement (the "Underwriting Agreement") with respect to the Series 1997-3
Securities solely as it relates to the purchase and sale of such Offered
Securities described below. The Series 1997-3 Securities are registered with
the Securities and Exchange Commission by means of an effective Registration
Statement (No. 333-26527). Capitalized terms used and not defined herein
have the meanings given them in the Underwriting Agreement.
Section 1. The Home Loan Pool: The Series 1997-3 Securities
------------------
shall evidence the entire beneficial ownership interest in a mortgage pool
(the "Home Loan Pool") of mortgage loans (the "Home Loans") having the
characteristics described in the Prospectus Supplement dated the date hereof.
Section 2. The Securities: The Offered Securities shall be
--------------
issued as follows:
(a) Classes: The Offered Securities shall be issued with the
-------
following Class designations, interest rates and principal balances, subject
in the aggregate to the variance referred to in the Prospectus Supplement:
Principal Interest Class Purchase
Class Balance Rate Price Percentage
Class A-1 Notes $166,090,000 (1) 100.00000%
Class A-2 Notes $91,430,000 6.48% 99.98906%
Class A-3 Notes $83,220,000 6.57% 99.99032%
Class A-4 Notes $70,500,000 6.80% 99.98959%
Class A-5 Notes $47,090,000 6.86% 99.99973%
Class A-6 Notes $57,740,000 7.08% 99.96287%
Class A-7 Notes $50,430,000 7.22% 99.94637%
Class A-8 Notes $47,580,000 7.55% 99.97537%
Class M-1 Notes $88,880,000 7.32% 99.95690%
Class M-2 Notes $44,440,000 7.52% 99.99062%
Class B-1 Certificates $35,996,400 7.79% 99.97284%
____________________
(1) Interest will accrue on the Class A-1 Notes with respect to each Payment
Date at a per annum rate equal to LIBOR for the related Accrual Period
plus 0.10%, subject to a maximum rate equal to the Net Weighted Average
Rate. Capitalized terms are as defined in the Prospectus Supplement.
Each of the Underwriters agrees, severally and not jointly, subject to
the terms and provisions herein and of the captioned Underwriting Agreement,
to purchase the principal balances of the Classes of Series 1997-3 Securities
specified opposite its name below.
Merrill Lynch,
Banc One Pierce, Fenner
Bear, Stearns Capital & Smith PaineWebber
Class & Co. Inc. Corporation Incorporated Incorporated
- ----- ---------- ----------- ------------ ------------
Class A-1 $41,524,000 $41,522,000 $41,522,000 $41,522,000
Notes
Class A-2 $22,859,000 $22,857,000 $22,857,000 $22,857,000
Notes
Class A-3 $20,805,000 $20,805,000 $20,805,000 $20,805,000
Notes
Class A-4 $17,625,000 $17,625,000 $17,625,000 $17,625,000
Notes
Class A-5 $11,774,000 $11,772,000 $11,772,000 $11,772,000
Notes
Class A-6 $14,435,000 $14,435,000 $14,435,000 $14,435,000
Notes
Class A-7 $12,609,000 $12,607,000 $12,607,000 $12,607,000
Notes
Class A-8 $11,895,000 $11,895,000 $11,895,000 $11,895,000
Notes
Class M-1 $22,220,000 $22,220,000 $22,220,000 $22,220,000
Notes
Class M-2 $11,110,000 $11,110,000 $11,110,000 $11,110,000
Notes
Class B-1 $ 8,999,100 $8,999,100 $8,999,100 $8,999,100
Certificates
(b) The Offered Securities shall have such other characteristics
as described in the Prospectus Supplement.
Section 3. Purchase Price: The Purchase Price for each Class
--------------
of the Offered Securities shall be the Class Purchase Price Percentage
therefor (as set forth in Section 2(a) above) of the initial class principal
balance thereof plus accrued interest at the applicable interest rate per
annum of each such Class from and including the September 1, 1997 (or, in the
case of the Class A-1 Notes, from September 10, 1997) up to, but not
including, September 18, 1997 (the "Closing Date").
Section 4. Required Ratings: The Offered Securities, other
----------------
than the Class M-1 Notes, the Class M-2 Notes and the Class B-1 Certificates,
shall have received Required Ratings of at least "AAA" by each of Standard &
Poor's Rating Services, a division of The McGraw-Hill Companies, Inc. ("S&P")
and Fitch Investors Service, L.P. ("Fitch" and, together with S&P, the
"Rating Agencies"). The Class M-1 Notes, the Class M-2 Notes and the Class
B-1 Certificates shall have received Required Ratings of at least "AA," "A"
and "BBB," respectively, from each of the Rating Agencies.
Section 5. Underwriter-Provided Information: The Company
--------------------------------
acknowledges that the information set forth in (a) the first sentence of the
last paragraph on the cover page of the Prospectus Supplement, (b) the first
sentence of the last paragraph on page iii of the Prospectus Supplement, (c)
the first table under the caption "Underwriting" and the first paragraph
immediately thereafter in the Prospectus Supplement and (d) the second table
under the caption "Underwriting" and the first, second and fifth paragraphs
immediately thereafter in the Prospectus Supplement, as such information
relates to the Securities, constitute the only information furnished in
writing by or on behalf of the Underwriters for inclusion in such Prospectus
Supplement, and the Underwriters confirm that such statements are correct.
Section 6. Location of Closing: Brown & Wood LLP, One World
-------------------
Trade Center, New York, New York 10048.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the undersigned a counterpart hereof,
whereupon this letter and your acceptance shall represent a binding agreement
between the Underwriters and the Company.
Very truly yours,
Bear, Stearns & Co. Inc.
as Representative of the several
Underwriters
By: /s/ Matthew E. Perkins
--------------------------------
Name: Matthew E. Perkins
Title: Associate Director
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above written.
FIRSTPLUS Investment Corporation
By: /s/ Lee F. Reddin
---------------------------------------
Name: Lee F. Reddin
Title: Vice President
FIRSTPLUS Financial Inc.
By: /s/ Lee F. Reddin
---------------------------------------
Name: Lee F. Reddin
Title: Vice President
Acknowledged by:
FIRSTPLUS Financial Group, Inc.
By: /s/ Christopher J. Gramlich
---------------------------------------
Name: Christopher J. Gramlich
Title: Senior Vice President