Exhibit 1.1
Execution
FIRSTPLUS HOME LOAN OWNER TRUSTS
ASSET-BACKED SECURITIES
(Issuable in Series)
UNDERWRITING AGREEMENT
Deutsche Morgan Grenfell Inc. May 13, 1998
as Representative of the
several Underwriters
31 West 52nd Street
New York, New York 10119
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 valid and
binding agreements of the Company enforceable in accordance
with their respective 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 assignment
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:_________________________________
Name:
Title:
FIRSTPLUS FINANCIAL INC.
By:________________________________
Name:
Title:
Acknowledged by:
FIRSTPLUS FINANCIAL GROUP, INC.
By:________________________________
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Deutsche Morgan Grenfell Inc.
as Representative of
the several Underwriters
By:_______________________________________
Name:
Title:
By:_______________________________________
Name:
Title:
EXHIBIT A
FIRSTPLUS HOME LOAN TRUST 1998-3
ASSET-BACKED SECURITIES
TERMS AGREEMENT
(to Underwriting Agreement,
dated May __________, 1998
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,
Deutsche Morgan Grenfell 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: