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
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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 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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
Name:
Title:
FIRSTPLUS Financial Inc.
Name:
Title:
Acknowledged by:
FIRSTPLUS Financial Group, Inc.
Name:
Title:
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:
Name:
Title:
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
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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
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: