Exhibit 1.1
FBR SECURITIZATION,
INC.
FBR SECURITIZATION Trust
200_-_
Asset-Backed Notes, Series
200_-_
UNDERWRITING
AGREEMENT
___________, 200_
____________________________________
as Representative of the several
Underwriters
c/o _________________________________
[street address]
[city], [state] [ZIP]
Ladies and Gentlemen:
FBR SECURITIZATION, INC., a Delaware
corporation (the “ Company ”), confirms its
agreement with each of the Underwriters listed on Schedule I hereto
(collectively, the “ Underwriters ”), for whom
_____________________ is acting as representative (in such
capacity, the “ Representative ”), with respect
to the sale by the Company of the FBR SECURITIZATION Trust 200_-_,
Asset-Backed Notes, Series 200_-_, Class A and Class M
(collectively, the “ Notes ”), issued pursuant
to the Indenture dated as of __________, 200_ (the “
Indenture ”), among the FBR SECURITIZATION Trust
200_-_ (the “ Issuer”) , ___________________
(the “ Securities Administrator ” ) and
___________________ (the “ Indenture Trustee ”),
and the purchase by the Underwriters, acting severally and not
jointly, of their respective Class Principal Amounts of the Notes
(the “ Offered Securities ”) set forth opposite
the names of the Underwriters in Schedule II hereto. The Issuer is
a Delaware statutory trust formed under the laws of the State of
Delaware pursuant to a trust agreement, between the
______________________, as owner trustee (the “ Owner
Trustee ”), which agreement will be superseded by the
amended and restated owner trust agreement (the “ Owner
Trust Agreement ”) dated as of _________________, 200_,
among the Company, the Owner Trustee, and the Securities
Administrator. The Mortgage Loans were originated by
__________________ (the “ Originator ”) and
purchased by _______________ (the “ Seller ”)
and its affiliates pursuant to the Master Mortgage Loan Purchase
and Interim Servicing Agreement (the “ Master Loan
Agreement ”), dated as of ____________, 200_, among the
Seller and certain of its affiliates, as purchaser, and the
Originator, as a seller and interim servicer. The Originator shall
execute an Assignment and Recognition Agreement, dated as of
____________, 200_, under which, among other things, certain
representations and warranties in the Master Loan Agreement shall
be made to the Seller, the Company and the Issuer as of the Closing
Date as of the date of such agreement. The affiliates of the Seller
sold certain of the Mortgage Loans to the Seller pursuant to that
certain Mortgage Loan Purchase Agreement dated as of _____________,
200_. The Seller will sell all the Mortgage Loans to the Company,
and the Company will sell all the Mortgage Loans to FBR
SECURITIZATION 200_-_ (the “ Issuer ”) pursuant
to the Transfer and Servicing Agreement dated as of ______________,
200_ (the “ Transfer and Servicing Agreement ”),
among the Issuer, the Indenture Trustee, the Company,
_________________________, as Securities Administrator and as
master servicer (in such capacity, the “ Master
Servicer ”), ___________________, as servicer (the
“ Servicer ”), the
Seller, and ______________________, as credit
risk manager (the “ Credit Risk Manager ”). The
Issuer has also entered into a cap agreement (the “ Cap
Agreement ”) with _________________________, as the cap
provider (the “ Cap Provider ”) dated as of
_____________, 200_. The Notes are expected to be issued on
__________________, 200_ (the “ Closing Date
”).
Capitalized terms used but not
otherwise defined herein shall have the respective meanings
ascribed thereto in the Transfer and Servicing Agreement or, if not
defined therein, the Indenture.
This Agreement (as defined below),
the Transfer and Servicing Agreement, the Indenture, the Owner
Trust Agreement, the Custodial Agreement and the Cap Agreement are
sometimes referred to herein collectively as the “
Transaction Documents .” The Offered Securities will
be issued in minimum denominations and will have the terms set
forth in the Prospectus Supplement (as defined below).
The Company understands that the
Underwriters propose to make a public offering of the Offered
Securities as soon as the Underwriters deem advisable after this
Underwriting Agreement (the “ Agreement ”) has
been executed and delivered.
The Company has filed with the
Securities and Exchange Commission (the “ Commission
”) a registration statement on Form S-3 (No.
333- ), including a related prospectus, for
the registration of securities including the Offered Securities
under the Securities Act of 1933, as amended (the “
Securities Act ”), and the rules and regulations
thereunder (the “ Securities Act Regulations ”).
The Company has prepared and filed such amendments to the
registration statement and such amendments or supplements to the
related prospectus, if any, as may have been required to the date
hereof, and will file such additional amendments thereto or
supplements thereto as may hereafter be required. The registration
statement has been declared effective under the Securities Act by
the Commission. The registration statement, as amended at the time
it was declared effective by the Commission and including all
information deemed to be a part of the registration statement
whether through incorporation by reference, pursuant to Rule 430B
of the Securities Act Regulations or otherwise, is hereinafter
called the “ Registration Statement ,” except
that, if the Company files a post-effective amendment to such
registration statement which becomes effective prior to the Closing
Time (as defined below), “ Registration Statement
” shall refer to such registration statement as so amended.
Any registration statement filed pursuant to Rule 462(b) of the
Securities Act Regulations is hereinafter called the “
Rule 462(b) Registration Statement ,” and after such
filing, the term “ Registration Statement ”
shall include the 462(b) Registration Statement. The Company
proposes to file with the Commission, pursuant to Rule 424 under
the Securities Act, a supplement to the Base Prospectus relating to
the Offered Securities and the method of distribution thereof. The
term “ Base Prospectus ” means the prospectus
included in the Registration Statement as amended, at the time such
Registration Statement became effective, or as first required to be
filed to satisfy the condition set forth in Rule 172(c) and
pursuant to Rule 424(b) of the Securities Act Regulations,
including all information incorporated by reference therein. The
term “ Prospectus Supplement ” means the
prospectus supplement specifically relating to the Offered
Securities, in the form first required to be filed to satisfy the
condition set forth in Rule 172(c) and pursuant to Rule 424(b) of
the Securities Act Regulations (including the Base Prospectus as so
supplemented). The term
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“ Prospectus ” means the
final Base Prospectus, including, in each case, the Prospectus
Supplement, as first filed with the Commission pursuant to Rule
424(b) of the Securities Act Regulations, and any amendments
thereof or supplements thereto. The term “ Preliminary
Prospectus ” means any preliminary form of the Prospectus
in the form filed with the Commission pursuant to Rule 424(b) of
the Securities Act Regulations. The Commission has not issued any
order preventing or suspending the use of the Registration
Statement or any Prospectus.
The term “ Disclosure
Package ” means (i) the Base Prospectus and the
Preliminary Prospectus, as most recently amended or supplemented
immediately prior to the Initial Sale Time (as defined herein),
(ii) the Issuer Free Writing Prospectuses (as defined below),
if any, identified in Schedule III hereto, and (iii) any other
Free Writing Prospectus (as defined below) that the parties hereto
shall hereafter expressly agree to treat as part of the Disclosure
Package. If, subsequent to the date of this Agreement, the Company
and the Underwriters have determined that the Disclosure Package
included an untrue statement of material fact or omitted 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 and have terminated their old purchase contracts and
entered into new purchase contracts with purchasers of the Offered
Securities, then the “ Disclosure Package ” will
refer to the information available to purchasers at the time of
entry into the first such new purchase contract, including any
information that corrects such material misstatements or omissions
(“ Corrective Information ”).
The term “ Issuer Free
Writing Prospectus ” means any “issuer free writing
prospectus”, as defined in Rule 433(h) of the Securities Act
Regulations. The term “ Free Writing Prospectus
” means any free writing prospectus, as defined in Rule 405
of the Securities Act Regulations.
The Company and the Underwriters
agree as follows:
1. Sale and
Purchase.
Upon the basis of the warranties,
representations, agreements and other terms and conditions herein
set forth, the Company agrees to sell to the Underwriters and each
Underwriter agrees, severally and not jointly, to purchase from the
Company the Class Principal Amounts of the Offered Securities set
forth in Schedule II opposite such Underwriter’s name, plus
any additional Class Principal Amounts of the Notes which such
Underwriter may become obligated to purchase pursuant to the
provisions of Section 9 hereof, subject, in each case, to such
adjustments among the Underwriters as the Representative in its
sole discretion shall make to eliminate any sales or purchases of
fractional securities.
2. Payment and
Delivery.
The Offered Securities to be
purchased by each Underwriter hereunder, in book entry form, and in
such authorized denominations and registered in such names as the
Representative shall request, shall be delivered by or on behalf of
the Company to the Representative through the facilities of The
Depository Trust Company (“ DTC ”) for the
account of such Underwriter, against payment by or on behalf of
such Underwriter of the purchase price therefor by wire
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transfer of Federal (same-day) funds to the
account specified to the Representative by the Company upon at
least forty-eight hours’ prior notice. The Company will cause
the certificates representing the Offered Securities to be made
available for checking and packaging at least twenty-four hours
prior to the Closing Time (as defined below) with respect thereto
at the office of the Representative, [street address], [city],
[state] [ZIP], or at the office of DTC or its designated custodian,
as the case may be (the “ Designated Office ”).
The time and date of such delivery and payment shall be _:__
[a.m./p.m.], New York City time, on the Closing Date (unless
another time and date shall be agreed to by the Representative and
the Company). The time and date at which such payment and delivery
are actually made is hereinafter sometimes called the “
Closing Time .”
3. Offering by
Underwriters.
(a) It is understood that the
several Underwriters propose to offer the Offered Securities for
sale to the public as set forth in the Prospectus and that no
Underwriter will offer, sell or otherwise distribute the Offered
Securities (except for the sale thereof in exempt transactions) in
any state in which the Offered Securities are not exempt from
registration under “blue sky” or state securities laws
(except where the Offered Securities will have been qualified for
offering and sale at such Underwriter’s direction under such
“blue sky” or state securities laws).
(b) In connection with the offering
of the Offered Securities, the Underwriters may each prepare and
provide to prospective investors Free Writing Prospectuses (as
defined below), or portions thereof, which the Company is required
to file with the Commission in electronic format and will use
reasonable efforts to provide to the Company such Free Writing
Prospectuses, or portions thereof, in either Microsoft Word
®
or Microsoft Excel
®
format and not in a PDF, except to
the extent that the Company, in its sole discretion, waives such
requirements, subject to the following conditions (to which such
conditions each Underwriter agrees (provided that no Underwriter is
responsible for any breach of the following conditions by any other
Underwriter)):
(i) Unless preceded or accompanied
by a prospectus satisfying the requirements of Section 10(a)
of the Securities Act, the Underwriter shall not convey or deliver
any written communication to any person in connection with the
initial offering of the Offered Securities, unless such written
communication (1) is made in reliance on Rule 134 of the
Securities Act Regulations, (2) constitutes a prospectus
satisfying the requirements of Rule 430B of the Securities Act
Regulations or (3) constitutes a Free Writing Prospectus,
other than the Series Term Sheet dated ____________, 200_ relating
to the Offered Securities, which shall be subject to Sections 3(c)
and 3(d) of this Agreement. The Underwriter shall not convey or
deliver in connection with the initial offering of the Offered
Securities any “ABS informational and computational
material,” as defined in Item 1101(a) of Regulation AB
of the Securities Act Regulations (“ ABS Informational and
Computational Material ”), in reliance upon Rules 167 and
426 of the Securities Act Regulations.
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(ii) Each Underwriter shall deliver
to the Depositor, no later than two business days prior to the date
of first use thereof, (a) any Free Writing Prospectus prepared
by or on behalf of such Underwriter that contains any “issuer
information,” as defined in Rule 433(h) of the Securities Act
Regulations (“ Issuer Information ”) (which the
parties hereto agree includes, without limitation, Pool Information
(as defined herein), and (b) any Free Writing Prospectus or
portion thereof that contains only a description of the final terms
of the Offered Securities. Notwithstanding the foregoing, any Free
Writing Prospectus that contains only ABS Informational and
Computational Materials shall be delivered by any Underwriter to
the Company not later than the later of (a) two business days
prior to the due date for filing of the Prospectus pursuant to Rule
424(b) under the Securities Act and (b) the date of first use
of such Free Writing Prospectus.
(iii) Each Underwriter represents
and warrants to the Company that the Free Writing Prospectuses to
be furnished to the Company by such Underwriter pursuant to
Section 3(b)(ii) above will constitute all Free Writing
Prospectuses of the type described in such Section that were
furnished to prospective investors by such Underwriter in
connection with its offer and sale of the Offered
Securities.
(iv) Each Underwriter represents and
warrants to the Company that each Free Writing Prospectus required
to be provided by it to the Company pursuant to
Section 3(b)(ii) above, when viewed together with all other
prospectuses conveyed at or prior to the Time of Sale, did not, as
of the Time of Sale, and will not as of the Closing Date, include
any untrue statement of a material fact or omit any material fact
necessary to make the statements contained therein, in light of the
circumstances under which they were made, not misleading; provided
however, that such Underwriter makes no representation to the
extent such misstatements or omissions were the result of any
inaccurate Issuer Information supplied by the Company to such
Underwriter, which information was not corrected by Corrective
Information subsequently supplied by the Company to such
Underwriter prior to the Time of Sale.
(v) The Company agrees to file with
the Commission the following:
(A) Any Issuer Free Writing
Prospectus;
(B) Any Free Writing Prospectus or
portion thereof delivered by any Underwriter to the Company
pursuant to Section 3(b)(ii); and
(C) Any Free Writing Prospectus for
which the Company or any person acting on its behalf provided,
authorized or approved information that is prepared and published
or disseminated by a person unaffiliated with the Company or any
other offering participant that
5
is in the business of publishing,
radio or television broadcasting or otherwise disseminating
communications.
(vi) Any Free Writing Prospectus
required to be filed pursuant to Section 3(b)(v) by the
Company shall be filed with the Commission not later than the date
of first use of the Free Writing Prospectus, except
that:
(A) Any Free Writing Prospectus or
portion thereof required to be filed that contains only the
description of the final terms of the Offered Securities shall be
filed by the Company with the Commission within two days of the
later of the date such final terms have been established for all
classes of Offered Securities and the date of first use;
(B) Any Free Writing Prospectus or
portion thereof required to be filed that contains only ABS
Informational and Computational Material shall be filed by the
Company with the Commission not later than the later of the due
date for filing the final Prospectus relating to the Offered
Securities pursuant to Rule 424(b) of the Securities Act
Regulations and two business days after the first use of such Free
Writing Prospectus;
(C) Any Free Writing Prospectus
required to be filed pursuant to Section 3(b)(v)(C) shall, if
no payment has been made or consideration has been given by or on
behalf of the Company for the Free Writing Prospectus or its
dissemination, be filed by the Company with the Commission not
later than four business days after the Company becomes aware of
the publication, radio or television broadcast or other
dissemination of the Free Writing Prospectus; and
(D) The Company shall not be
required to file (1) Issuer Information contained in any Free
Writing Prospectus of an Underwriter or any other offering
participant other than the Company, if such information is included
or incorporated by reference in a prospectus or Free Writing
Prospectus previously filed with the Commission that relates to the
offering of the Offered Securities or (2) any Free Writing
Prospectus or portion thereof that contains a description of the
Offered Securities or the offering of the Offered Securities which
does not reflect the final terms thereof.
(vii) Each Underwriter shall file
with the Commission any Free Writing Prospectus that is used or
referred to by it and distributed by or on behalf of the
Underwriter in a manner reasonably designed to lead to its broad,
unrestricted dissemination not later than the date of the first use
of such Free Writing Prospectus.
(viii) Notwithstanding the
provisions of Section 3(b)(vii), each Underwriter shall file
with the Commission any Free Writing Prospectus for which such
Underwriter or any person acting on its behalf provided,
authorized
6
or approved information that is
prepared and published or disseminated by a person unaffiliated
with the Company or any other offering participant that is in the
business of publishing, radio or television broadcasting or
otherwise disseminating written communications and for which no
payment was made or consideration given by or on behalf of the
Company or any other offering participant, not later than four
business days after such Underwriter becomes aware of the
publication, radio or television broadcast or other dissemination
of the Free Writing Prospectus.
(ix) Notwithstanding the provisions
of Sections 3(b)(v) and 3(b)(vii), neither the Company nor any
Underwriter shall be required to file any Free Writing Prospectus
that does not contain substantive changes from or additions to a
Free Writing Prospectus previously filed with the
Commission.
(x) The Company and each Underwriter
each agree that any Free Writing Prospectuses prepared by it shall
contain the following legend:
The depositor has filed a
registration statement (including a prospectus) with the SEC for
the offering to which this communication relates. Before you
invest, you should read the prospectus in that registration
statement and other documents the depositor has filed with the SEC
for more complete information about the depositor, the issuing
trust, and this offering. You may get these documents for free 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 if you request it
by calling toll-free 1-8[xx-xxx-xxxx].
(xi) The Company and each
Underwriter agree to retain all Free Writing Prospectuses that they
have used and that are not required to be filed pursuant to this
Section 3 for a period of three years following the initial
bona fide offering of the Offered Securities.
(A) In the event that any
Underwriter becomes aware that, as of the Time of Sale, any Free
Writing Prospectus prepared by or on behalf of such Underwriter and
delivered to such investor contained any untrue statement of a
material fact or omitted to state a material fact necessary in
order to make the statements contained therein, in the light of the
circumstances under which they were made, not misleading (such Free
Writing Prospectus, a “ Defective Free Writing
Prospectus ”), such Underwriter shall notify the Company
thereof within one business day after discovery.
(B) Provided that the Defective Free
Writing Prospectus was an Issuer Free Writing Prospectus or
contained Issuer Information, such Underwriter shall, if requested
by the Company:
(1) Prepare a Free Writing
Prospectus with Corrective Information that corrects the material
misstatement in or omission from the Defective Free Writing
Prospectus (such corrected Free Writing Prospectus, a “
Corrected Free Writing Prospectus ”);
7
(2) Deliver the Corrected Free
Writing Prospectus to each investor which received the Defective
Free Writing Prospectus prior to entering into an agreement to
purchase any Offered Securities;
(3) Notify such investor in a
prominent fashion that the prior agreement to purchase Offered
Securities has been terminated, and of the investor’s rights
as a result of termination of such agreement; and
(4) Provide such investor with an
opportunity to affirmatively agree to purchase the Offered
Securities on the terms described in the Corrected Free Writing
Prospectus.
(xii) Each Underwriter covenants
with the Company that after the final Prospectus is available such
Underwriter shall not distribute any written information concerning
the Offered Securities to a prospective investor unless such
information is preceded or accompanied by the final
Prospectus.
(c) It is understood that each
Underwriter may prepare and provide to prospective investors
certain “Computational Materials” and “ABS Term
Sheets” (as defined in Section 3(b)(vii) below) in
connection with the offering of the Offered Securities, subject to
the following conditions:
(i) All Computational Materials and
ABS Term Sheets provided by an Underwriter to prospective investors
that are required to be filed pursuant to the “SEC No-Action
Letters” (as defined in Section 3(b)(vii) below) shall
bear a legend on each page including the following
statement:
“THE INFORMATION CONTAINED
HEREIN HAS BEEN PROVIDED BY [UNDERWRITER]. NEITHER THE ISSUER OF
THE SECURITIES NOR ANY OF ITS AFFILIATES MAKES ANY REPRESENTATION
AS TO THE ACCURACY OR COMPLETENESS OF THE INFORMATION HEREIN. THE
INFORMATION HEREIN IS PRELIMINARY, AND WILL BE SUPERSEDED BY THE
APPLICABLE PROSPECTUS SUPPLEMENT AND BY ANY OTHER INFORMATION
SUBSEQUENTLY FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION.”
In the case of Collateral Term Sheets (as
defined in the SEC No-Action Letters), such legend shall also
include the following statement:
“THE INFORMATION CONTAINED
HEREIN WILL BE SUPERSEDED BY THE DESCRIPTION OF THE MORTGAGE POOL
CONTAINED IN THE
8
PROSPECTUS SUPPLEMENT RELATING TO
THE SECURITIES AND SUPERSEDES ALL INFORMATION CONTAINED IN ANY
COLLATERAL TERM SHEETS RELATING TO THE MORTGAGE POOL PREVIOUSLY
PROVIDED BY [UNDERWRITER].”
Notwithstanding the foregoing, this subsection
(i) will be satisfied if all Computational Materials and ABS
Term Sheets referred to therein bear a legend in the form attached
hereto as Schedule III.
(ii) Any Computational Materials and
ABS Term Sheets are subject to the review by and approval of the
Company prior to their distribution to any prospective investors
and a copy of such Computational Materials and ABS Term Sheets as
are delivered to prospective investors shall, in addition to the
foregoing delivery requirements, be delivered to the Company
simultaneously with delivery to prospective investors.
(iii) Each Underwriter shall provide
to the Company, for filing on Form 8-K as provided in
Section 5(q), copies (in such format as required by the
Company) of all Computational Materials and ABS Term Sheets
prepared by it that are required to be filed with the Commission
pursuant to the SEC No-Action Letters. An Underwriter may provide
copies of the foregoing in a consolidated or aggregate form that
includes all information required to be filed. All Computational
Materials and ABS Term Sheets described in this
Section 3(b)(iii) must be provided to the Company not later
than _:__ [a.m./p.m.] New York City time one business day before
filing thereof is required pursuant to the terms of the SEC
No-Action Letters. Each Underwriter severally agrees that it will
not provide to any investor or prospective investor in the Offered
Securities any Computational Materials or ABS Term Sheets on or
after the day on which Computational Materials and ABS Term Sheets
are required to be provided to the Company pursuant to this
Section 3(b) (other than copies of Computational Materials or
ABS Term Sheets previously submitted to the Company in accordance
with this Section 3(b) for filing pursuant to
Section 5(q)), unless such Computational Materials or ABS Term
Sheets are preceded or accompanied by the delivery of a Prospectus
to such investor or prospective investor.
(iv) All information included in the
Computational Materials and ABS Term Sheets shall be generated
based on substantially the same methodology and assumptions that
are used to generate the information in the Prospectus Supplement
as set forth therein; provided, however, that the Computational
Materials and ABS Term Sheets may include information based on
alternative methodologies or assumptions if specified therein. If
any Computational Materials or ABS Term Sheets that are required to
be filed were based on assumptions with respect to the Mortgage
Loans that are incorrect, that differ from the final Pool
Information (as defined herein) in any material respect or include
structuring terms that were revised in any material respect prior
to the printing of the Prospectus, the Underwriter responsible
therefor shall prepare revised Computational Materials or ABS Term
Sheets, as the case may be, based
9
on the final Pool Information and
structuring assumptions, circulate such revised Computational
Materials and ABS Term Sheets to all recipients of the preliminary
versions thereof that indicated orally to such Underwriter they
would purchase all or any portion of the Offered Securities, and
include such revised Computational Materials and ABS Term Sheets
(marked, “as revised”) in the materials delivered to
the Company pursuant to Section 3(b)(iii).
(v) The Company shall not be
obligated to file any Computational Materials or ABS Term Sheets
that (A) in the reasonable determination of the Company and
the respective Underwriter are not required to be filed pursuant to
the SEC No-Action Letters or (B) have been determined to
contain any material error or omission, provided that, at the
request of the respective Underwriter, the Company will file
Computational Materials or ABS Term Sheets that contain a material
error or omission if clearly marked “superseded by materials
dated [date]” and accompanied by corrected Computational
Materials or ABS Term Sheets that are marked “material
previously dated [date], as corrected”. In the event that at
any time when a prospectus relating to the Offered Securities is
required to be delivered under the Act, any Computational Materials
or ABS Term Sheets are determined, in the reasonable judgment of
the Company or the respective Underwriter, to contain a material
error or omission, such Underwriter shall prepare a corrected
version of such Computational Materials or ABS Term Sheets, shall
circulate such corrected version of such Computational Materials
and ABS Term Sheets to all recipients of the prior versions thereof
that either indicated orally to such Underwriter they would
purchase all or any portion of the Offered Securities, or actually
purchased all or any portion thereof, and shall deliver copies of
such corrected Computational Materials and ABS Term Sheets (marked,
“as corrected”) to the Company for filing with the
Commission in a subsequent Form 8-K submission (subject to the
Company’s obtaining an accountant’s comfort letter in
respect of such corrected Computational Materials and ABS Term
Sheets, which shall be at the expense of such Underwriter) provided
that if any such letter is required to be revised solely because of
a change in the Pool Information, any additional expenses for such
letter resulting from the change in Pool Information shall be paid
by the Company.
(vi) If an Underwriter does not
provide any Computational Materials and ABS Term Sheets to the
Company pursuant to Section 3(b)(iii), such Underwriter shall
be deemed to have represented, as of the Closing Time, that it did
not provide any prospective investors with any information in
written or electronic form in connection with the offering of the
Offered Securities that is required to be filed with the Commission
in accordance with the SEC No-Action Letters, and such Underwriter
shall provide the Company with a certification to that effect on
the Closing Time.
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(vii) The following terms related to
Computational Materials and ABS Term Sheets have the respective
meanings assigned to them in this
Section 3(b)(vii):
“ ABS Term Sheet
” means any Collateral Term Sheet, Series Term Sheet or
Structural Term Sheet.
“ Collateral Term sheet
” has the meaning assigned to such term in the
February 13, 1995 letter of Cleary, Gottlieb, Steen &
Hamilton on behalf of the Public Securities Association (which
letter and the Commission staff’s response thereto became
publicly available on February 17, 1995), and shall include
any subsequent Collateral Term Sheet that reflects a substantive
change in the information presented in any earlier Collateral Term
Sheet.
“ Computational
Materials ” has the meaning assigned to such term in the
no-action letter of May 20, 1994 issued by the Commission to
Kidder, Peabody Acceptance Corporation I, Kidder,
Peabody & Co. Incorporated and Kidder Structured Asset
Corporation, as made applicable to other issuers and underwriters
by the Commission in response to the request of the Public
Securities Association dated May 24, 1994 and the no-action
letter of February 17, 1995 issued by the Commission to the
Public Securities Association.
“ SEC No-Action Letters
” mean the various no-action letters referred to in the
definitions of “Collateral Term Sheet”
“Computational Materials,” “Series Term
Sheet” and “Structural Term Sheet” in this
Section 3(b) (vii).
“ Series Term Sheet
” has the meaning assigned to such term in the no-action
letter addressed to Greenwood Trust Company, Discover Master Card
Trust I dated April 5, 1996.
“ Structural Term Sheet
” has the meaning assigned to such term in the
February 13, 1995 letter of Cleary, Gottlieb, Steen &
Hamilton on behalf of the Public Securities Association (which
letter and the Commission staff’s response thereto, became
publicly available on February 17, 1995).
(d) Each Underwriter severally
represents and warrants and agrees with the Company that as of the
date hereof and as of the Closing Time that: (A) the
Computational Materials and ABS Term Sheets furnished by it to the
Company pursuant to Section 3(b)(iii) constitute (either in
original, aggregate 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 Offered Securities in
accordance with the SEC No-Action Letters, and such Computational
Materials and ABS Term Sheets comply with the requirements of the
SEC No-Action Letters in all material respects; (B) on the
date any such Computational Materials and ABS Term Sheets with
respect to such Offered Securities (or any written or electronic
materials furnished to prospective investors on which the
Computational Materials and ABS Term Sheets are based) were last
furnished to each prospective investor and on the date of delivery
thereof to the Company pursuant to Section 3(b)(iii) and on
the related Closing Time, such Computational Materials and ABS Term
Sheets (or materials) were accurate in all material respects when
read in conjunction with the Prospectus (taking into account the
assumptions explicitly set forth in the Computational
11
Materials), except to the extent of
any errors therein that are caused by errors in the Pool
Information; (c) each Underwriter has not and will not
represent to potential investors that any Computational Materials
and ABS Term Sheets were prepared or disseminated on behalf of the
Company; and (d) all Computational Materials and ABS Term
Sheets (or underlying materials distributed to prospective
investors by it on which the Computational Materials and ABS Term
Sheets were based) contained and will contain a legend complying
with Section 3(b)(i).
Notwithstanding the foregoing, no Underwriter
makes any representation or warranty as to whether any
Computational Materials or ABS Term Sheets (or any written or
electronic materials furnished to prospective investors on which
the Computational Materials or ABS Term Sheets are based) included
or will include any inaccurate statement resulting directly from
any error contained in the Pool Information.
(e) Each Underwriter has represented
and agreed that:
(i) it has only communicated or
caused to be communicated and will only communicate or cause to be
communicated an invitation or inducement to engage in investment
activity (within the meaning of Section 21 of the Financial
Services and Markets Act) received by it in connection with the
issue or sale of the securities in circumstances in which
Section 21(1) of the Financial Services and Markets Act does
not apply to the Issuer;
(ii) it has complied and will comply
with all applicable provisions of the Financial Services and
Markets Act with respect to anything done by it in relation to the
securities in, from or otherwise involving the United Kingdom;
and
(iii) in relation to each Member
State of the European Economic Area which has implemented the
Prospectus Directive (each, a “ Relevant Member State
”), with effect from and including the date on which the
Prospectus Directive is implemented in that Relevant Member State
(the “ Relevant Implementation Date ”) it has
not made and will not make an offer of securities to the public in
that Relevant Member State prior to the publication of a prospectus
in relation to the securities which has been approved by the
competent authority in that Relevant Member State or, where
appropriate, approved in another Relevant Member State and notified
to the competent authority in that Relevant Member State, all in
accordance with the Prospectus Directive, except that it may, with
effect from and including the Relevant Implementation Date, make an
offer of securities to the public in that Relevant Member State at
any time:
(x) to legal entities which are
authorized or regulated to operate in the financial markets or, if
not so authorized or regulated, whose corporate purpose is solely
to invest in securities;
12
(y) to any legal entity which has
two or more of (1) an average of at least 250 employees during
the last financial year; (2) a total balance sheet of more
than €43,000,000 and (3) an annual net turnover of more
than €50,000,000, as shown in its last annual or consolidated
accounts; or
(z) in any other circumstances which
do not require the publication by the Issuer of a prospectus
pursuant to Article 3 of the Prospectus Directive.
For the purposes of this provision, the
expression an “offer of securities to the public” in
relation to any securities in any Relevant Member State means the
communication in any form and by any means of sufficient
information on the terms of the offer and the securities to be
offered so as to enable an investor to decide to purchase or
subscribe the securities, as the same may be varied in that Member
State by any measure implementing the Prospectus Directive in that
Member State and the expression “Prospectus Directive”
means Directive 2003/71/EC and includes any relevant implementing
measure in each Relevant Member State.
4. Representations and Warranties
of the Company.
The Company (or, with respect to
Section 4(nn) only, the Seller) represents and warrants to the
Underwriters, as of the date of this Agreement, each Time of Sale
(as defined below), and as of the Closing Time, and agrees with
each Underwriter that:
(a) the Offered Securities conform
in all material respects to the description thereof contained in
each of the Disclosure Package, the Registration Statement and the
Prospectus, and each of the Notes, when validly authenticated,
issued and delivered in accordance with the Indenture, will be duly
and validly issued and outstanding, will constitute the legal,
valid and binding obligations of the Issuer, enforceable in
accordance with their terms, subject, as to enforceability, to
bankruptcy, insolvency and similar laws affecting the rights of
creditors generally and to general principles of equity, and will
be entitled to the benefits and security afforded by the
Indenture;
(b) the Company has been duly
incorporated and is existing as a corporation in good standing
under and by virtue of the laws of the State of Delaware, with all
requisite corporate power and authority to own, lease and operate
its properties, and conduct its business as described in each of
the Disclosure Package, the Registration Statement and the
Prospectus, and is duly qualified as a foreign entity to transact
business or is licensed and is in good standing in each
jurisdiction in which it conducts its business or in which it owns,
leases or operates real property or otherwise maintains an office
and in which the failure, individually or in the aggregate, to be
so qualified or licensed could have a material adverse effect on
the assets, business, operations, earnings, prospects, properties
or condition (financial or otherwise), present or prospective, of
the Company (any such effect or change, where the context so
requires, is hereinafter called a “ Material Adverse
Effect ” or “ Material Adverse Change
”); other than as disclosed in the Prospectus, the Company
does not own, directly or indirectly, any capital stock or other
equity securities of any other corporation or any ownership
interest in any partnership, joint venture or other
association;
13
(c) the Company has delivered to the
Representative the complete Disclosure Package and complete
manually signed copies of the Registration Statement and of each
consent and certificate of experts filed as a part thereof, and
conformed copies of the Registration Statement (without exhibits)
and the Prospectus, as amended or supplemented, in such quantities
and at such places as the Representative has reasonably requested
for delivery to each of the Underwriters;
(d) each of the Registration
Statement and any Rule 462(b) Registration Statement have been
declared effective under the Securities Act by the Commission and
no stop order suspending the effectiveness of the Registration
Statement or any Rule 462(b) Registration Statement has been issued
under the Securities Act and no proceedings for that purpose have
been instituted or are pending or, to the best knowledge of the
Company, are contemplated or threatened by the Commission, and the
Company has complied to the Commission’s satisfaction with
any request on the part of the Commission for additional or
supplemental information; any Preliminary Prospectus when filed
with the Commission, and the Registration Statement as of each
effective date and as of the date hereof, complied or will comply,
and the Prospectus and any further amendments or supplements to the
Registration Statement, the Preliminary Prospectus or the
Prospectus will, when they become effective or are filed with the
Commission, as the case may be, comply, in all material respects
with the requirements of the Securities Act and the Securities Act
Regulations, and the Registration Statement, as of each effective
date, did not, and as of the date hereof does not and as of Closing
Time will 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; and the
Preliminary Prospectus does not, and the Prospectus or any
amendment or supplement thereto will not, as of the applicable
filing date, the date hereof and at the Closing Time, contain any
untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no
representations or warranties as to the information contained in or
omitted from the Registration Statement, the Preliminary Prospectus
or the Prospectus or any revision or amendment thereof or
supplement thereto in reliance upon and in conformity with
information furnished in writing to the Company by any Underwriter
through the Representative specifically for use in connection with
the preparation thereof or any revision or amendment thereof or
supplement thereto (that information being limited to that
described in the next to last sentence of the first paragraph of
Section 10(b) hereof), or any information in any Computational
Materials or ABS Term Sheets required to be provided by any
Underwriter to the Company pursuant to Section 3(b), except to
the extent that such information constitutes Pool Information. As
used herein, “ Pool Information ” means
information with respect to the assumed characteristics of the
Mortgage Loans and administrative and servicing fees. The Company
acknowledges that the Underwriter Information (as defined herein)
constitutes the only information furnished in writing by any
Underwriter or on behalf of any Underwriter for use in connection
with the preparation of the Registration Statement or the
Prospectus Supplement. There are no contracts or documents of the
Company which are required to be filed as exhibits to the
Registration Statement pursuant to the Securities Act or the
Securities Act Regulations which have not been so filed or
incorporated by reference
14
therein on or prior to the effective
date of the Registration Statement. The conditions for use of Form
S-3, as set forth in the General Instructions thereto, have been
satisfied;
(e) as of _:__ [a.m./p.m.] (Eastern
time) on the date of this Agreement (the “ Initial Sale
Time ”), the Disclosure Package did not, and at the time
of each sale of Offered Securities (including the Initial Sale
Time, each, a “ Time of Sale ”) and at the
Closing Time, the Disclosure Package will not, contain any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; other
than the Preliminary Prospectus and the Prospectus, the Company
(including its agents and representatives other than the
Underwriters in their capacity as such) has not made, used,
prepared, authorized, approved or referred to and will not make,
use, prepare, authorize, approve or refer to any “written
communication” (as defined in Rule 405 of the Securities Act
Regulations) that constitutes an offer to sell or solicitation of
an offer to buy the Offered Securities other than (i) the
Series Term Sheet (the Series Term Sheet and each such
communication by the Company or its agents and representatives that
constitutes an Issuer Free Writing Prospectus (other than a
communication referred to in clause (ii) below)),
(ii) any document not constituting a prospectus pursuant to
Section 2(a)(10)(a) of the Securities Act or Rule 134 of the
Securities Act Regulations or (iii) the documents listed on
Schedule III hereto and other written communication approved in
writing in advance by the Representative; each such Issuer Free
Writing Prospectus complied in all material respects with the
Securities Act, has been filed in accordance with Section 3
(to the extent required thereby) and did not at any Time of Sale,
and at the Closing Date will not, contain any untrue statements of
a material fact or (when read in conjunction with the other
information contained in the Disclosure Package) omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; provided that the Depositor makes no representation and
warranty with respect to any statements or omissions made in
reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such Underwriter
expressly for use in any Issuer Free Writing Prospectus; and as of
its issue date or date of first use and at all subsequent times
through the Initial Sale Time, each Issuer Free Writing Prospectus
did not, and at the time of each sale of Offered Securities and at
the Closing Time, each such Issuer Free Writing Prospectus will
not, contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Company makes no
warranty or representation with respect to any statement contained
in or omitted from the Disclosure Package in reliance upon and in
conformity with the information concerning the Underwriters and
furnished in writing by or on behalf of the Underwriters through
the Representative to the Company expressly for use therein (that
information being limited to that described in the next to last
sentence of the first paragraph of Section 10(b)
hereof);
(f) each Issuer Free Writing
Prospectus, as of its issue date and at all subsequent times
through the completion of the public offer and sale of the Offered
Securities did not, does not and will not include any information
that conflicted, conflicts or will conflict with the information
contained in the Registration Statement or the
Prospectus,
15
including any document incorporated
by reference therein that has not been superseded or
modified;
(g) the Company is eligible to use
Free Writing Prospectuses in connection with this offering pursuant
to Rules 164 and 433 of the Securities Act Regulations; any Free
Writing Prospectus that the Company is required to file pursuant to
Rule 433(d) under the Securities Act Regulations has been, or will
be, filed with the Commission in accordance with the requirements
of the Securities Act and the Securities Act Regulations; and each
Free Writing Prospectus that the Company has filed, or is required
to file, pursuant to Rule 433(d) under the Securities Act
Regulations or that was prepared by or on behalf of or used by the
Company complies or will comply in all material respects with the
requirements of the Securities Act and the Securities Act
Regulations;
(h) except for the Issuer Free
Writing Prospectuses identified in Schedule III hereto, the Company
has not prepared, used or referred to, and will not, without the
prior consent of the Representative, prepare, use or refer to, any
Free Writing Prospectus;
(i) the Preliminary Prospectus, the
Prospectus and any Issuer Free Writing Prospectuses (to the extent
any such Issuer Free Writing Prospectus was required to be filed
with the Commission) delivered to the Underwriters for use in
connection with the public offering of the Offered Securities
contemplated herein have been and will be identical to the versions
of such documents transmitted to the Commission for filing via the
Electronic Data Gathering Analysis and Retrieval System
(“EDGAR”), except to the extent permitted by Regulation
S-T;
(j) the Company filed the
Registration Statement with the Commission before using any Issuer
Free Writing Prospectus;
(k) the Company has not distributed
and will not distribute, prior to the completion of the
Underwriters’ distribution of the Offered Securities, any
prospectus or other offering materials in connection with the
offering and sale of the Offered Securities other than the
Disclosure Package, the Prospectus or the Registration
Statement;
(l) the Company is in compliance in
all material respects with all applicable laws, rules, regulations,
orders, decrees and judgments, including those relating to
transactions with affiliates;
(m) the Company is not in violation
of its certificate of incorporation, as amended or restated (the
“ Certificate of Incorporation ”), or its
bylaws, and the Company is not in breach of or default in (nor has
any event occurred which with notice, lapse of time, or both would
constitute a breach of, or default in) the performance or
observance of any obligation, agreement, contract, franchise,
covenant or condition contained in any license, indenture,
mortgage, deed of trust, loan or credit agreement, lease or other
agreement or instrument to which the Company is a party or by which
the Company or its properties is bound, except for such breaches or
defaults which could not have a Material Adverse Effect;
16
(n) the execution, delivery and
performance of this Agreement and each other Transaction Document,
the issuance, sale and delivery by the Company of the Offered
Securities and the consummation of the transactions contemplated
herein and therein will not (i) conflict with, or result in
any breach or constitute a default (nor constitute any event which
with notice, lapse of time, or both would constitute a breach or
default), (A) by the Company of any provision of the
organizational documents of the Company or (B) of any
provision of any obligation, agreement, contract, franchise,
license, indenture, mortgage, deed of trust, loan or credit
agreement, lease or other agreement or instrument to which the
Company is a party or by which the Company or its properties may be
bound or affected, or (C) under any federal, state, local or
foreign law, regulation or rule or any decree, judgment or order
applicable to the Company, except for such breaches, defaults,
conflicts, liens, charges or encumbrances which could not have a
Material Adverse Effect; or (ii) result in the creation or
imposition of any lien, charge, claim or encumbrance upon any
property or asset of the Company;
(o) this Agreement has been, and the
other Transaction Documents at the Closing Time shall have been
duly authorized, executed and delivered by the Company and
constitute legal, valid and binding agreements of the Company, and
such other Transaction Documents are enforceable in accordance with
their terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting
creditors’ rights generally, and by general equitable
principles;
(p) as of the Closing Date, this
Agreement and the other Transaction Documents conform in all
material respects to the descriptions thereof contained in the
Registration Statement and Prospectus. On the Closing Date, the
Owner Trust Agreement will be effective to establish the Issuer as
a valid statutory trust under the laws of the State of
Delaware;
(q) the Company has the full legal
right, corporate power and authority to enter into this Agreement
and the other Transaction Documents and to consummate
