Exhibit 1.3
FORM OF UNDERWRITING AGREEMENT
(ITERATIVE)
SG MORTGAGE SECURITIES, LLC
[
] Asset-Backed [and Manufactured Housing Contract]
Notes, Series [
]
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$ [
]
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Adjustable Rate
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Class A-[1] Notes
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$ [
]
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Adjustable Rate
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Class A-[2] Notes
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$ [
]
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Adjustable Rate
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Class A-[3] Notes
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$ [
]
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Adjustable Rate
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Class A-[4] Notes
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UNDERWRITING AGREEMENT
[DATE]
[SG Americas Securities, LLC]
[
]
[
]
Ladies and Gentlemen:
SG Mortgage Securities, LLC, a
Delaware limited liability company (the “Company”),
proposes to sell to you (the “Underwriter”) the
respective amounts set forth opposite your name in Schedule I
attached hereto of [
] Asset-Backed [and Manufactured Housing Contract] Notes, Series [
], Class A-[1], Class A-[2], Class A-[3] and
Class A-[4] (collectively, the “Notes”). The Notes
together with the
[ ]
Home Loan Asset-Backed Certificates of the same series, will
evidence the entire beneficial interest in the Trust Fund (as
defined in the Indenture referred to below), consisting primarily
of a pool (the “Pool”) of adjustable-rate first and
junior lien one- to four-family residential home loans (the
“Mortgage Loans”) as described in the Prospectus
Supplement (as hereinafter defined) to be sold by the
Company.
The Notes will be issued pursuant to
an indenture (the “Indenture”) to be dated as of [DATE]
(the “Cut-off Date”) among the Company, as depositor,
[WELLS FARGO] (“Master Servicer”), as master servicer,
and [TRUSTEE], as indenture trustee (the “Indenture
Trustee”). The Notes are described more fully in the Base
Prospectus and the Prospectus Supplement (each as hereinafter
defined) which the Company has furnished to the
Underwriter.
1. Representations, Warranties
and Covenants .
1.1 The Company represents and
warrants to, and agrees with the Underwriter that:
(a) The Company has filed with the
Securities and Exchange Commission (the “Commission”) a
registration statement (No. 333-[NUMBER]) on Form S-3 for the
registration under the Securities Act of 1933, as amended (the
“Act”), of [
] Asset-Backed [and Manufacturing Housing Contract] Notes (issuable
in series), including the Notes, which registration statement has
become effective, and a copy of which, as amended to the date
hereof, has heretofore been delivered to you. The Company proposes
to file with the Commission pursuant to Rule 424(b) under the rules
and regulations of the Commission under the Act (the “1933
Act Regulations”) a supplement dated [DATE] (the
“Prospectus Supplement”), to the prospectus dated
[DATE] (the “Base Prospectus”), relating to the Notes
and the method of distribution thereof. Such registration statement
(No. 333-[Number]) including exhibits thereto and any information
incorporated therein by reference, as amended at the date hereof,
is hereinafter called the “Registration Statement”; and
the Base Prospectus and the Prospectus Supplement and any
information incorporated therein by reference, together with any
amendment thereof or supplement thereto authorized by the Company
on or prior to the Closing Date (as defined herein) for use in
connection with the offering of the Notes, are hereinafter called
the “Prospectus.”
(b) The Registration Statement has
become effective, and the Registration Statement as of the
effective date (the “Effective Date,” as defined in
this paragraph), and the Prospectus, as of the date of the
Prospectus Supplement, complied in all material respects with the
applicable requirements of the Act and the 1933 Act Regulations;
and the Registration Statement, as of the Effective Date, did not
contain any untrue statement of a material fact and did not omit to
state any material fact required to be stated therein or necessary
to make the statements therein not misleading; and each Issuer Free
Writing Prospectus (as defined herein) as of its date did not and
at all times prior to the date of the Prospectus Supplement will
not, and the Prospectus, as of the date of the Prospectus
Supplement did not and as of the Closing Date will not, contain an
untrue statement of a material fact and did not and will not omit
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading (except in the case of any Issuer Free Writing
Prospectus, any omission with respect to information included in
the definition of Senior Structure Information); provided ,
however , that neither the Company nor Master Servicer makes
any representations or warranties as to the information contained
in or omitted from the Registration Statement or the Prospectus or
any amendment thereof or supplement thereto relating to the
information therein that is Excluded Information (as defined
herein); and provided , further , that neither the
Company nor Master Servicer makes any representations or warranties
as to either (i) any information contained in any Underwriter
Prepared Issuer FWP (as defined herein) or Underwriter Free Writing
Prospectus (as defined herein) except, in each case, to the extent
of (x) any information set forth therein that constitutes Pool
Information (as defined below) or (y) any information
accurately extracted from any Issuer Free Writing Prospectus and
included in any Underwriter Prepared Issuer FWP or Underwriter Free
Writing Prospectus, or (ii) any information contained in or
omitted from the portions of the Prospectus identified
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by underlining or other highlighting
as shown in Exhibit E (the “Underwriter Information”).
The Effective Date shall mean the earlier of the date on which the
Prospectus Supplement is first used and the time of the first
Contract of Sale (as defined herein) to which such Prospectus
Supplement relates. The initial effective date of the Registration
Statement was within three years of the Closing Date. If the third
anniversary of the initial effective date occurs within six months
after the Closing Date, the Company will use best efforts to take
such action as may be necessary or appropriate to permit the public
offering and sale of the Notes as contemplated hereunder. The
Company acknowledges that the Underwriter Information constitutes
the only information furnished in writing by you or on your behalf
for use in connection with the preparation of the Registration
Statement or the Prospectus, and the Underwriter confirms that the
Underwriter Information is correct.
(c) (i) “ABS
Informational and Computational Materials” shall have the
meaning given such term in Item 1101 of Regulation
AB.
(ii) “Approved Offering
Materials” means with respect to any class of Notes
anticipated to be rated in the highest category by any Rating
Agency, collectively the following documents as most recently
provided by the Company and designated in writing by the Company as
Approved Offering Materials prior to the time of any Contract of
Sale: (i) one or more term sheets, providing factual
information about the Notes and the structure and basic parameters
thereof (excluding information about the subdivision of the senior
classes into tranches), the basic terms of the subordination or
other credit enhancements if known, factual information about the
Mortgage Loans (which may include parameters or “stips”
or tabular data prepared by the Company), the identity of and basic
information about key parties to the transaction known to the
Company, and the tax, ERISA and SMMEA characteristics of the Notes,
(ii) a term sheet supplement, containing risk factors and
additional information of the type to appear in the Prospectus
Supplement to the extent known, and (iii) the Base Prospectus,
which may be provided by a weblink. Each of the items described in
(i) and (ii) in the preceding sentence shall constitute
an Issuer Free Writing Prospectus and any additional information
provided by the Underwriter shall constitute an Underwriter Free
Writing Prospectus or Underwriter Prepared Issuer FWP, as the case
may be. With respect to any class of Notes anticipated to be rated
in the second highest or a lower category by any Rating Agency,
“Approved Offering Materials” means the
Prospectus.
(iii) “Contract of Sale”
has the same meaning as in Rule 159 of the 1933 Act Regulations and
all Commission guidance relating to Rule 159.
(iv) “Excluded
Information” shall mean, with respect to each of the
Registration Statement and the Prospectus, the information
identified by underlining or other highlighting as shown on Exhibit
D.
(v) “Free Writing
Prospectus” shall have the meaning given such term in Rules
405 and 433 of the 1933 Act Regulations.
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(vi) “Issuer Free Writing
Prospectus” shall mean any Free Writing Prospectus prepared
by or on behalf of the Company and identified by the Company as an
Issuer Free Writing Prospectus and relating to the Notes or the
offering thereof.
(vii) “Issuer
Information” shall mean any information of the type specified
in clauses (1) – (5) of footnote 271 of Commission
Release No. 33-8591 (Securities Offering Reform), other than
Underwriter Derived Information. Consistent with such definition,
“Issuer Information” shall not be deemed to include any
information in a Free Writing Prospectus solely by reason of the
Company’s review of the materials pursuant to
Section 4.4(e) below and, consistent with Securities Offering
Reform Questions and Answers, November 30, 2005 promulgated by
the staff of the Commission, “Issuer Information” shall
not be deemed to include any information in a Free Writing
Prospectus solely by reason that the Underwriter has agreed not to
use such Free Writing Prospectus without consent of the
Company.
(viii) “Permitted Additional
Materials” shall mean information that is not ABS
Informational and Computational Materials and (x) that are
referred to in Section 4.4(c) so long as any Issuer
Information provided by the Underwriter pursuant to
Section 4.4(c) is limited to information included within the
definition of ABS Informational and Computational Materials,
(y) that constitute Note price, yield, weighted average life,
subscription or allocation information, or a trade confirmation, or
(z) otherwise with respect to which the Company has provided
written consent to the Underwriter to include in a Free Writing
Prospectus.
(ix) “Pool Information”
means with respect to any Free Writing Prospectus, the information
with respect to the characteristics of the Mortgage Loans and
administrative and servicing fees, as provided by or on behalf of
the Company or Master Servicer to the Underwriter at the time most
recent to the date of such Free Writing Prospectus.
(x) “Senior Structure
Information” shall mean, with respect to each class of Notes
anticipated to be rated in the highest category by any Rating
Agency (collectively, the “Senior Notes”), (i) the
Note Rate if a fixed rate, or the formula for determining the Note
Rate, (ii) the terms and the provider of any yield maintenance
agreement, swap agreement or other agreement that provides payments
payable on any class of the Senior Notes, (iii) the terms and
the provider of any surety bond, financial guaranty insurance
policy, or other insurance policy regarding any class of the Senior
Notes not known to the Company when the Approved Offering Materials
were prepared, (iv) the allocation to each class of Senior
Notes of the aggregate amount of the cashflow payable among the
Senior Notes collectively, and (v) the allocation to each
class of Senior Notes of the aggregate amount of any Realized
Losses allocable to the Senior Notes collectively.
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(xi) “Underwriter Derived
Information” shall refer to information of the type described
in clause (5) of footnote 271 of Commission Release
No. 33-8591 (Securities Offering Reform) when prepared by the
Underwriter, including traditional computational and analytical
materials prepared by the Underwriter.
(xii) “Underwriter Free
Writing Prospectus” shall mean all Free Writing Prospectuses
prepared by or on behalf of the Underwriter other than any
Underwriter Prepared Issuer FWP, including any Permitted Additional
Materials.
(xiii) “Underwriter Prepared
Issuer FWP” shall mean any Free Writing Prospectus or portion
thereof prepared by or on behalf of the Underwriter that contains
only a description of the final terms of the Notes or of the
offering of the Notes after the final terms have been established
for all classes of Senior Notes.
(xiv) “Written
Communication” shall have the meaning given such term in Rule
405 of the 1933 Act Regulations.
(d) The Company has been duly formed
and is validly existing as a limited liability company in good
standing under the laws of the State of Delaware and has the
requisite power to own its properties and to conduct its business
as presently conducted by it.
(e) The Company was not, as of any
date on or after which a bona fide offer (as used in Rule 164(h)(2)
of the 1933 Act Regulations) of the Note is made an Ineligible
Issuer, as such term is defined in Rule 405 of the 1933 Act
Regulations. The Company shall comply with all applicable laws and
regulations in connection with the use of Free Writing
Prospectuses, including but not limited to Rules 164 and 433 of the
1933 Act Regulations and all Commission guidance relating to Free
Writing Prospectuses, including but not limited to Commission
Release No. 33-8591.
(f) This Agreement has been duly
authorized, executed and delivered by the Company.
(g) As of the Closing Date (as
defined herein), the Notes will conform in all material respects to
the description thereof contained in the Prospectus and the
representations and warranties of the Company in the Indenture will
be true and correct in all material respects.
1.2 Master Servicer represents and
warrants to, and agrees with the Underwriter that as of the Closing
Date the representations and warranties of Master Servicer in the
Servicing Agreement will be true and correct in all material
respects.
1.3 The Underwriter represents and
warrants to and agrees with the Company and Master Servicer
that:
(a) The Underwriter has no present
knowledge or expectation that it will be unable to pay any United
States taxes owed by it so long as any of the Notes remain
outstanding.
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(b) The Underwriter has no present
knowledge or expectation that it will become insolvent or subject
to a bankruptcy proceeding for so long as any of the Notes remain
outstanding.
(c) The Underwriter hereby certifies
that (i) with respect to any classes of Notes issued in
authorized denominations or Percentage Interests of less than $[
] or [ ]%, as the case may be, the
fair market value of each such Note sold to any person on the date
of initial sale thereof by the Underwriter will not be less than $[
] and (ii) with respect to each class of Notes to be
maintained on the book-entry records of The Depository Trust
Company (“DTC”), the interest in each such class of
Notes sold to any person on the date of initial sale thereof by the
Underwriter will not be less than the minimum denomination
indicated for such class of Notes in the Prospectus
Supplement.
(d) The Underwriter will have funds
available at the Trustee, in the Underwriter’s account at
such bank at the time all documents are executed and the closing of
the sale of the Notes is completed, except for the transfer of
funds and the delivery of the Notes. Such funds will be available
for immediate transfer into the account of Master Servicer
maintained at such bank.
(e) As of the date hereof and as of
the Closing Date, the Underwriter has complied with all of its
obligations hereunder and all information contained in any
Underwriter Free Writing Prospectus and in any Underwriter Prepared
Issuer FWP as used in connection with any Contract of Sale and all
Underwriter Information are accurate in all material respects
(taking into account the assumptions explicitly set forth in such
Underwriter Prepared Issuer FWP or Underwriter Free Writing
Prospectus), except to the extent of (x) any errors therein
that are caused by errors or omissions in the Pool Information or
(y) information accurately extracted from any Issuer Free
Writing Prospectus and included in any Underwriter Prepared Issuer
FWP or Underwriter Free Writing Prospectus.
(f) Prior to the Closing Date, the
Underwriter shall notify the Company and Master Servicer of the
earlier of (x) the date on which the Prospectus Supplement is
first used and (y) the time of the first Contract of Sale to
which such Prospectus Supplement relates.
2. Purchase and Sale .
Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees
to sell to the Underwriter, and the Underwriter agrees to purchase
from the Company, the Notes set forth opposite its name in Schedule
I hereto, at a price equal to 100% of the aggregate principal
balance of the Class A-[1], Class A-[2], Class A-[3]
and Class A-[4] Notes, as of the Closing Date.
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3. Delivery and Payment .
Delivery of and payment for the Notes shall be made at the office
of Mayer, Brown, Rowe & Maw LLP at 10:00 a.m., New York
City time, on [DATE] or such later date as you shall designate,
which date and time may be postponed by agreement between you and
the Company (such date and time of delivery and payment for the
Notes being herein called the “Closing Date”). Delivery
of the Notes shall be made to you through The Depository Trust
Company (“DTC”).
4. Offering by Underwriter
.
4.1 It is understood that the
Underwriter proposes to offer the Notes for sale to the public as
set forth in the Prospectus and the Underwriter agrees that all
such offers and sales shall be made in compliance with all
applicable laws and regulations. Prior to the date of the first
Contract of Sale made based on the Approved Offering Materials, the
Underwriter has not pledged, sold, disposed of or otherwise
transferred any Note, Mortgage Loans or any interest in any
Note.
4.2 It is understood that you will
solicit offers to purchase the Notes as follows:
(a) Prior to the time you have
received the Approved Offering Materials you may, in compliance
with the provisions of this Agreement, solicit offers to purchase
Notes; provided, that you shall not accept any such offer to
purchase a Note or any interest in any Note or Mortgage Loan or
otherwise enter into any Contract of Sale for any Note, any
interest in any Note or any Mortgage Loan prior to your conveyance
of Approved Offering Materials to the investor.
(b) any Written Communication
relating to the Notes made by an Underwriter in compliance with the
terms of this Agreement prior to the time such Underwriter has
entered into a Contract of Sale for Notes with the recipient shall
prominently set forth the following statements (or a substantially
similar statements approved by the Company):
The information in this free writing
prospectus, if conveyed prior to the time of your contractual
commitment to purchase any of the Notes, supersedes any information
contained in any prior similar materials relating to the Notes. The
information in this free writing prospectus is preliminary, and is
subject to completion or change. This free writing prospectus is
being delivered to you solely to provide you with information about
the offering of the Notes referred to in this free writing
prospectus and to solicit an offer to purchase the Notes, when, as
and if issued. Any such offer to purchase made by you will not be
accepted and will not constitute a contractual commitment by you to
purchase any of the Notes, until we have accepted your offer to
purchase Notes.
The Notes referred to in these
materials are being sold when, as and if issued. The issuer is not
obligated to issue such Notes or
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any similar security and the
underwriter’s obligation to deliver such Notes is subject to
the terms and conditions of the underwriting agreement with the
issuer and the availability of such Notes when, as and if issued by
the issuer. You are advised that the terms of the Notes, and the
characteristics of the mortgage loan pool backing them, may change
(due, among other things, to the possibility that mortgage loans
that comprise the pool may become delinquent or defaulted or may be
removed or replaced and that similar or different mortgage loans
may be added to the pool, and that one or more classes of Notes may
be split, combined or eliminated), at any time prior to issuance or
availability of a final prospectus. You are advised that Notes may
not be issued that have the characteristics described in these
materials. The underwriter’s obligation to sell such Notes to
you is conditioned on the mortgage loans and Notes having the
characteristics described in these materials. If for any reason the
issuer does not deliver such Notes, the underwriter will notify
you, and neither the issuer nor any underwriter will have any
obligation to you to deliver all or any portion of the Notes which
you have committed to purchase, and none of the issuer nor any
underwriter will be liable for any costs or damages whatsoever
arising from or related to such non-delivery.
4.3 It is understood that you will
not enter into a Contract of Sale with any investor until the
Approved Offering Materials have been conveyed to the investor with
respect to the Notes which are the subject of such Contract of
Sale.
4.4 It is understood that you may
prepare and provide to prospective investors certain Free Writing
Prospectuses, subject to the following conditions:
(a) Unless preceded or accompanied
by a prospectus satisfying the requirements of Section 10(a)
of the Act, the Underwriter shall not convey or deliver any Written
Communication to any person in connection with the initial offering
of the Notes, unless such Written Communication (i) is made in
reliance on Rule 134 under the Act, (ii) constitutes a
prospectus satisfying the requirements of Rule 430B under the Act
or (iii) constitutes a Free Writing Prospectus (as defined in
Section 1.1(c) above) consisting solely of
(x) information of a type included within the definition of
ABS Informational and Computational Materials (as defined below),
(y) Permitted Additional Materials or (z) information
accurately extracted from any Issuer Free Writing Prospectus and
included in any Underwriter Prepared Issuer FWP or Underwriter Free
Writing Prospectus.
(b) The Underwriter shall comply
with all applicable laws and regulations in connection with the use
of Free Writing Prospectuses, including but not limited to Rules
164 and 433 of the 1933 Act Regulations and all Commission guidance
relating to Free Writing Prospectuses, including but not limited to
Commission Release No. 33-8591.
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(c) It is understood and agreed that
all information provided by the Underwriter to or through Bloomberg
or Intex or similar entities for use by prospective investors, or
imbedded in any CDI file provided to prospective investors, to the
extent constituting a Free Writing Prospectus, shall be deemed an
Underwriter Free Writing Prospectus.
(d) All Free Writing Prospectuses
provided to prospective investors, whether or not filed with the
Commission, shall bear a legend including the following statement
(or a substantially similar statement approved by the
Company):
“THE DEPOSITOR HAS FILED A
REGISTRATION STATEMENT (INCLUDING A PROSPECTUS) WITH THE SECURITIES
AND EXCHANGE COMMISSION (THE SEC) FOR THE OFFERING TO WHICH THIS
COMMUNICATION RELATES. BEFORE YOU INVEST, YOU SHOULD READ THE
PROSPECTUS IN THAT REGISTRATION STATEMENT AND OTHER DOCUMENTS THE
DEPOSITOR HAS FILED WITH THE SEC FOR MORE COMPLETE INFORMATION
ABOUT THE DEPOSITOR AND THE OFFERING. YOU MAY GET THESE DOCUMENTS
AT NO CHARGE BY VISITING EDGAR ON THE SEC WEB SITE AT
WWW.SEC.GOV. ALTERNATIVELY, THE DEPOSITOR, ANY UNDERWRITER
OR ANY DEALER PARTICIPATING IN THE OFFERING WILL ARRANGE TO SEND
YOU THE PROSPECTUS AT NO CHARGE IF YOU REQUEST IT BY CALLING
TOLL-FREE 1–8[XX–XXX–XXXX] OR VIA EMAIL AT
.
Each of the Underwriter and the
Company shall have the right to request additional specific legends
or notations to appear on any Free Writing Prospectus and shall
have the right to require changes regarding the use of terminology
and the right to determine the types of information appearing
therein with the approval of the other (which shall not be
unreasonably withheld).
(e) The Underwriter shall deliver to
the Company and its counsel (in such format as reasonably required
by the Company), no later than the business day prior to the date
of the required filing under Section 5.10, an Underwriter
Prepared Issuer FWP. To facilitate filing to the extent required by
Section 5.10 or 5.11, as applicable, all Underwriter Derived
Information shall be set forth in a document separate from any
Underwriter Prepared Issuer FWP including Issuer
Information.
(f) The Underwriter shall provide
the Company with a letter from [ACCOUNTING FIRM], certified public
accountants, prior to the Closing Date, satisfactory in form and
substance to the Company, Master Servicer and their respective
counsels and the Underwriter, to the effect that such accountants
have performed certain
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specified procedures, all of which
have been agreed to by the Company and the Underwriter, as a result
of which they determined that certain information of an accounting,
financial or statistical nature that is included in any Underwriter
Prepared Issuer FWP, other than any Pool Information therein and
any information accurately ext