Exhibit 1
SECURITIZED ASSET BACKED RECEIVABLES LLC
$633,287,000
(Approximate)
Securitized Asset Backed Receivables LLC Trust 2006-FR1
Mortgage Pass-Through Certificates, Series 2006-FR1
UNDERWRITING AGREEMENT
February 17, 2006
Barclays Capital Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Securitized Asset Backed Receivables LLC, a Delaware limited liability
company (the "Company"), proposes to sell to you, Barclays Capital Inc. (the
"Underwriter"), Securitized Asset Backed Receivables LLC Trust 2006-FR1 Mortgage
Pass-Through Certificates, Series 2006-FR1 in the original principal amount and
with the designation described on Schedule A attached hereto (the "Offered
Certificates"). The Offered Certificates will be issued pursuant to a Pooling
and Servicing Agreement, dated as of February 1, 2006 (the "Pooling and
Servicing Agreement"), among the Company, as depositor, Fremont Investment &
Loan, as responsible party (the "Responsible Party"), HomEq Servicing
Corporation, as servicer (the "Servicer"), MortgageRamp, Inc., as loan
performance advisor, and Xxxxx Fargo Bank, National Association, as trustee (the
"Trustee"). In addition to the Offered Certificates, the Company will authorize
for issuance the Mortgage Pass-Through Certificates, Series 2006-FR1, Class A-1,
Class X, Class P and Class R pursuant to the Pooling and Servicing Agreement
(together with the Offered Certificates, the "Certificates"). The Certificates
will represent in the aggregate the entire beneficial ownership interest in a
trust fund (the "Trust Fund") primarily consisting of a pool of adjustable- and
fixed-rate sub-prime loans (the "Mortgage Loans") secured primarily by
first-lien or second-lien mortgages or deeds of trust on residential properties.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-123990) for the
registration of the Certificates under the Securities Act of 1933 (the "1933
Act"), which registration statement has become effective and copies of which, as
amended to the date hereof, have been delivered to the Underwriter. The Company
proposes to file with the Commission pursuant to Rule 424(b)(5) under the rules
and regulations of the Commission under the Act (the "1933 Act Regulations") a
prospectus supplement, dated February 17, 2006 (the "Prospectus Supplement"), to
the prospectus, dated May 20, 2005, included in such registration statement,
relating to the Offered Certificates and the method of distribution thereof.
Such registration statement on Form S-3, including exhibits thereto and
information that is contained in the Prospectus (as defined below) and is deemed
to be part of and included in such registration statement, as such registration
statement may have been amended or supplemented as of the date of the
Prospectus, is hereinafter referred to as the "Registration Statement"; the
prospectus first required to be filed to satisfy the condition set forth in Rule
172(c) and pursuant to Rule 424(b) under the 1933 Act, is hereinafter referred
to as the "Base Prospectus"; such form of supplement to the Base Prospectus
relating to the Offered Certificates, in the form first required to be filed to
satisfy the condition set forth in Rule 172(c) and pursuant to Rule 424(b) under
the 1933 Act (including the Base Prospectus as so supplemented) is hereinafter
referred to as the "Prospectus Supplement"; and the Base Prospectus and the
Prospectus Supplement, together, are hereinafter referred to as the
"Prospectus". Capitalized terms not otherwise defined in this Agreement are used
herein as defined in the Pooling and Servicing Agreement.
At or prior to the time when sales to investors of the Offered
Certificates were first made (the "Time of Sale"), the Company had prepared the
following information (collectively, the "Time of Sale Information"): the
Securitized Asset Backed Receivables LLC Trust 2006-FR1 Free Writing Prospectus
dated February 7, 2006, including the Company's Collateral Term Sheet attached
thereto, the Company's Prospectus dated May 20, 2005, the Securitized Asset
Backed Receivables LLC Trust 2006-FR1 Free Writing Prospectus Term Sheet dated
February 6, 2006 and any other "free-writing prospectus" (as defined pursuant to
Rule 405 under the Act (as defined herein)) (a "Free Writing Prospectus") listed
on Schedule B hereto. If, subsequent to the date of this Agreement, the Company
and the Underwriter determine that such information 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 terminate their old purchase contracts and entered into
new purchase contracts with investors of the Offered Certificates, then "Time of
Sale Information" 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") and "Time of Sale" will refer to the time and date on which such
new purchase contracts were entered into.
Section 1. Representations and Warranties.
(a) The Company represents and warrants to the Underwriter as follows:
(i) The Registration Statement, as amended as of its effective date or
deemed effective date pursuant to Rule 430B under the 1933 Act thereof (the
"Effective Date") and the Prospectus, as of the date thereof, complied in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations. The Registration Statement, as of the Effective Date, did not
contain an 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 not misleading. The Prospectus, as of the date thereof, did not, and
as of the Closing Date (as defined herein) will not, 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
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or Prospectus made
in reliance upon and in conformity with information furnished to the Company
in writing by the Underwriter expressly for use in the Registration Statement
or Prospectus. The Company and the Underwriter hereby acknowledge that only
the statements set forth in the last paragraph of the cover of the Prospectus
Supplement and under the caption "Underwriting" in the Prospectus Supplement
(other than the third and fourth full paragraphs under such caption) and
constitute statements made in reliance upon and in conformity with
information furnished to the Company in writing by the Underwriter expressly
for use in the Registration Statement, Prospectus or the Time of Sale
Information (such statements being collectively referred to as "Underwriter
Statements").
(ii) Since the respective dates as of which information is given in the
Registration Statement, Prospectus and Time of Sale Information, except as
otherwise stated therein, (A) there has been no material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Company, whether or not arising in the ordinary
course of business, and (B) there have been no transactions entered into by
the Company, other than those in the ordinary course of business, which are
material with respect to the Company, in either case which would materially
and adversely affect the Company's ability to perform its obligations under
this Agreement or the Pooling and Servicing Agreement.
(iii) The Time of Sale Information, at the Time of Sale did not, and at
the Closing Date will not, 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 that the Company makes no representation or warranty
with respect to any statements or omissions made in reliance upon and in
conformity with the Underwriter Statements.
(iv) Other than the Prospectus, the Company (including its agents
and representatives other than the Underwriter in its 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 under the 1933 Act) that constitutes
an offer to sell or solicitation of an offer to buy the Offered Certificates
other than (i) any document not constituting a prospectus pursuant to Section
2(a)(10)(a) of the 1933 Act or Rule 134 under the 1933 Act, (ii) the Time of
Sale Information, and (iii) each other written communication of the Company
or its agents and representatives approved in writing in advance by the
Underwriter or in any other manner mutually agreed by the Underwriter and the
Depositor (each such communication referred to in clause (ii) and this clause
(iii) constituting an "issuer free writing prospectus", as defined in Rule
433(h) under the 1933 Act being referred to as an "Issuer Free Writing
Prospectus"). Each such Issuer Free Writing Prospectus complied or, if used
after the date hereof will comply, in all material respects with the 1933
Act, has been filed or will be filed in accordance with Section 7 (to the
extent required thereby) and did not at the 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 Time of Sale Information) 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 Company makes no representation and warranty with respect to any
statements or omissions made in reliance upon and in conformity with any
Underwriter Statements.
(v) The Company has been duly organized and is validly existing as
a limited liability company in good standing under the laws of the State of
Delaware with power and authority to own, lease and operate its properties
and to conduct its business, as now conducted by it, and to enter into and
perform its obligations under this Agreement and the Pooling and Servicing
Agreement; and the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which the
failure to be so qualified would have a material and adverse effect on the
Company's ability to perform its obligations under this Agreement and the
Pooling and Servicing Agreement.
(vi) The Company is not in violation of its certificate of formation or
in default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any material contract,
indenture, mortgage, loan agreement, note, lease or other instrument to which
the Company is a party, or to which any of the property or assets of the
Company may be subject, or by which it or any of them may be bound; and the
issuance and sale of the Offered Certificates to the Underwriter, the
execution, delivery and performance of this Agreement and the Pooling and
Servicing Agreement and the consummation of the transactions contemplated
therein and compliance by the Company with its obligations thereunder have
been duly authorized by all necessary corporate action and will not conflict
with or constitute a breach of, or default under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property or assets
of the Company pursuant to, any material contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company is a party or
by which it or any of them may be bound, or to which any of the property or
assets of the Company is subject, nor will such action result in any
violation of the provisions of the certificate of formation or limited
liability company agreement of the Company or any applicable law,
administrative regulation or administrative or court decree.
(vii) There is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending, or, to the
knowledge of the Company, threatened, against or affecting the Company, which
is required to be disclosed in the Registration Statement (other than as
disclosed therein), or which might materially and adversely affect the
Company's ability to perform its obligations under this Agreement and the
Pooling and Servicing Agreement; all pending legal or governmental
proceedings to which the Company is a party or of which its property or
assets is the subject which are not described in the Registration Statement,
including ordinary routine litigation incidental to the business, are,
considered in the aggregate, not material.
(viii) No authorization, approval or consent of any court or governmental
authority or agency is necessary in connection with the offering, issuance or
sale of the Offered Certificates hereunder, except such as have been, or as
of the Closing Date will have been, obtained or such as may otherwise be
required under applicable state securities laws in connection with the
purchase and offer and sale of the Offered Certificates by the Underwriter
and any recordation of the respective assignments of the Mortgages to the
Trustee pursuant to the Pooling and Servicing Agreement that have not yet
been completed.
(ix) The Company possesses all material licenses, certificates,
authorities or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to perform its obligations under this
Agreement or the Pooling and Servicing Agreement, and the Company has not
received any notice of proceedings relating to the revocation or modification
of any such license, certificate, authority or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding,
would materially and adversely affect the ability of the Company to perform
its obligations under this Agreement or the Pooling and Servicing Agreement.
(x) Each of this Agreement and the Pooling and Servicing Agreement has
been duly authorized, executed and delivered by the Company and constitutes a
legal, valid and binding agreement enforceable against the Company in
accordance with its terms, except as enforceability may be limited by (A)
bankruptcy, insolvency, reorganization, receivership, moratorium or other
similar laws affecting the enforcement of the rights of creditors generally,
(B) general principles of equity, whether enforcement is sought in a
proceeding in equity or at law, and (C) public policy considerations
underlying the securities laws, to the extent that such public policy
considerations limit the enforceability of the provisions of this Agreement
or the Pooling and Servicing Agreement that purport to provide
indemnification from securities law liabilities.
(xi) At the time of the execution and delivery of the Pooling and
Servicing Agreement, the Company (i) will have good and marketable title to
the Mortgage Loans being transferred by it to the Trust Fund pursuant
thereto, free and clear of any lien, mortgage, pledge, charge, encumbrance,
adverse claim or other security interest (collectively "Liens"), to the
extent good and marketable title to the Mortgage Loans is transferred to the
Company, free and clear of all Liens, by the Purchaser, and (ii) will have
the power and authority to transfer such Mortgage Loans to the Trust Fund,
and upon the Closing Date, the Trust Fund will have acquired ownership of all
of the Company's right, title and interest in and to the related Mortgage
Loans.
(xii) At the Closing Date, the Offered Certificates will be rated not
lower than the ratings set forth in the Prospectus Supplement under the
heading "Ratings".
(xiii) Any taxes, fees and other governmental charges in connection with
the execution, delivery and issuance of the Pooling and Servicing Agreement
to which it is a party and the Offered Certificates have been paid or will be
paid at or prior to the Closing Date.
(xiv) The Company was informed, prior to any public announcement of the
issue of the Offered Certificates, of the existence of the Financial
Servicers Authority's informational guidance referred to in MAR 2.3.2R(4) of
the price stabilizing rules made under Section 144(1) of the United Kingdom's
Financial Services and Markets Act 2000 (the "FSMA") and it has not issued
and will not issue, without the prior consent of the Underwriter, any
communication to which MAR 2.3.2R(1) of those rules applies unless that
communication adequately discloses that stabilizing action may take place in
relation to the issue of the Offered Certificates and complies with MAR
2.3.3E of those rules.
(xv) The Company is not, and on the date on which the first bona fide
offer of the Offered Certificates is made (within the meaning of Rule
164(h)(2) under the 1933 Act) will not be, an "ineligible issuer", as defined
in Rule 405 under the 1933 Act.
(b) Any certificate signed by any officer of the Company and delivered
to the Underwriter or the Underwriter's counsel shall be deemed a representation
and warranty by the Company to the Underwriter as to the matters covered
thereby.
Section 2. Purchase and Sale.
Subject to the terms and conditions herein set forth and in reliance upon
the representations and warranties herein contained, the Company agrees to sell
to the Underwriter, and the Underwriter agrees to purchase from the Company, at
a purchase price set forth on Schedule A hereto, the principal amount of the
Offered Certificates set forth on Schedule A hereto.
Section 3. Delivery and Payment.
Payment of the purchase price for, and delivery of, the Offered
Certificates to be purchased by the Underwriter shall be made at the office of
Barclays Capital Inc. ("Barclays"), 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
or at such other place as shall be agreed upon by the Underwriter and the
Company, at 10:00 A.M. New York City time, on February 23, 2006, which date and
time may be postponed by agreement between you and the Company (such time and
date of payment and delivery being herein called the "Closing Date"). Payment
shall be made to the Company, in immediately available federal funds wired to
such bank as may be designated by the Company, against delivery of the Offered
Certificates or with respect to payments to be made by Barclays, at the
Company's option, by appropriate notation of an intercompany transfer between
affiliates of Barclays Bank PLC. The Offered Certificates shall be in such
denominations and registered in such names as you may request in writing at
least two business days before the Closing Date. The Offered Certificates will
be made available for examination and packaging by you not later than 10:00 A.M.
on the last business day prior to the Closing Date.
Section 4. Covenants of The Company. The Company covenants with the
Underwriter as follows:
(a) The Company will give the Underwriter notice of its intention to
prepare, use, authorize, approve, refer to or file any Issuer Free Writing
Prospectus or to file or prepare any amendment to the Registration Statement or
any amendment or supplement to the Prospectus (including any revised prospectus
which the Company proposes for use by the Underwriter in connection with the
offering of the Offered Certificates which differs from the prospectus on file
at the Commission at the time the Registration Statement becomes effective,
whether or not such revised prospectus is required to be filed pursuant to Rule
424(b) of the 1933 Act Regulations), will furnish the Underwriter with copies of
any such Issuer Free Writing Prospectus, amendment or supplement a reasonable
amount of time prior to such proposed filing or use, as the case may be, and
will not prepare, use, authorize, approve, refer to or file any Issuer Free
Writing Prospectus or file any such amendment or supplement or use any such
prospectus to which you shall reasonably object.
(b) The Company will cause the Prospectus to be transmitted to the
Commission for filing pursuant to Rule 424(b)(5) under the 1933 Act by means
reasonably calculated to result in filing with the Commission pursuant to said
rule. Subject to Section 7, the Company will cause each Issuer Free Writing
Prospectus to be transmitted for filing pursuant to Rule 433(d) under the 1933
Act by means reasonably calculated to result in filing with the Commission
pursuant to said rule.
(c) The Company will furnish to the Underwriter, from time to time
during the period when the Prospectus is required to be delivered under the 1933
Act or the Securities Exchange Act of 1934 (the "1934 Act"), such number of
copies of the Prospectus and each Free Writing Prospectus (as amended or
supplemented) as the Underwriter may reasonably request for the purposes
contemplated by the 1933 Act or the 1934 Act or the respective applicable rules
and regulations of the Commission thereunder.
(d) If during the period after the first date of the public offering of
the Offered Certificates in which a prospectus relating to the Offered
Certificates is required to be delivered under the 1933 Act, any event shall
occur as a result of which it is necessary, in the opinion of counsel for you,
to amend or supplement the Prospectus in order to make the Prospectus not
misleading in the light of the circumstances existing at the time it is
delivered to an investor in the Offered Certificates, the Company will forthwith
amend or supplement the Prospectus (in form and substance satisfactory to
counsel for you) so that, as so amended or supplemented, the Prospectus will not
include an 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 existing at the time it is delivered to a purchaser, not
misleading, and the Company will furnish to the Underwriter a reasonable number
of copies of such amendment or supplement.
(e) The Company will endeavor to arrange for the qualification of the
Offered Certificates for sale under the applicable securities laws of such
states and other jurisdictions of the United States as the Underwriter may
designate; provided, however, that the Company shall not be obligated to qualify
as a foreign corporation in any jurisdiction in which it is not so qualified. In
each jurisdiction in which the Offered Certificates have been so qualified, the
Company will file such statements and reports as may be required by the laws of
such jurisdiction to continue such qualification in effect for a period of not
less than one year from the effective date of the Registration Statement.
(f) If the transactions contemplated by this Agreement are consummated,
the Company will pay or cause to be paid all expenses incident to the
performance of the obligations of the Company under this Agreement, and will
reimburse the Underwriter for any reasonable expenses (including reasonable fees
and disbursements of counsel) reasonably incurred by it in connection with
qualification of the Offered Certificates for sale and determination of their
eligibility for investment under the laws of such jurisdictions as the
Underwriter has reasonably requested and the printing of memoranda relating
thereto, for any fees charged by investment rating agencies for the rating of
the Offered Certificates, and for expenses incurred by each of them in
distributing the Prospectus (including any amendments and supplements thereto)
to the Underwriter. Except as herein provided, the Underwriter shall be
responsible for paying all costs and expenses incurred by it including the fees
and disbursements of counsel, in connection with the purchase and sale of the
Offered Certificates.
(g) If, during the period after the Closing Date in which a prospectus
relating to the Offered Certificates is required to be delivered under the 1933
Act, the Company receives notice that a stop order suspending the effectiveness
of the Registration Statement or preventing the offer and sale of the Offered
Certificates is in effect, the Company will immediately advise the Underwriter
of the issuance of such stop order. The Company will make every reasonable
effort to prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible moment.
Section 5. Conditions of Underwriter's Obligations. The Underwriter's
obligation to purchase the Offered Certificates shall be subject to the
following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for that purpose shall be
pending or, to the Company's knowledge, threatened by the Commission, and the
Prospectus Supplement and each Free Writing Prospectus required to be filed by
the Company pursuant to Section 4(b) shall have been filed or transmitted for
filing by means reasonably calculated to result in a filing with the Commission
pursuant to Rule 424(b) under the 1933 Act or Rule 433(d) under the 1933 Act, as
applicable.
(b) At the Closing Date the Underwriter shall have received:
(i) The favorable opinion, dated as of the Closing Date, of Xxx X.
Xxxxxxxx, counsel for the Company, in form and substance satisfactory to the
Underwriter;
(ii) One or more favorable opinions, dated as of the Closing Date, of
Xxxxxxxxxx, Xxxxxxxxxx & Xxxx LLP, counsel for the Company, in form and
substance satisfactory to the Underwriter; and
(iii) One or more accountants' comfort letters relating to the financial
and statistical information in the Time of Sale Information and the
Prospectus, in form and substance satisfactory to the Underwriter.
(c) On the Closing Date, there shall not have been, since the date
hereof or since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company, whether or not arising in the ordinary course
of business, and the Underwriter shall have received a certificate of the
President or a Vice President of the Company, dated as of the Closing Date, to
the effect that (i) the representations and warranties in Section 1 hereof are
true and correct with the same force and effect as though expressly made at and
as of the Closing Date, (ii) the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior to
the Closing Date, and (iii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been initiated or threatened by the Commission.
(d) On the Closing Date counsel for the Underwriter shall have been
furnished with such other documents and opinions as counsel may reasonably
require for the purpose of enabling them to pass upon the issuance and sale of
the Offered Certificates as herein contemplated and related proceedings, or in
order to evidence the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of the Offered
Certificates as herein contemplated shall be satisfactory in form and substance
to the Underwriter and counsel for the Underwriter.
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
Underwriter by notice to the Company at any time at or prior to the Closing
Date, and such termination shall be without liability of any party to any other
party.
Section 6. Indemnification. The Company and the Underwriter agree
that:
(a) The Company agrees to indemnify and hold harmless the Underwriter
and each person, if any, who controls the Underwriter within the meaning of
Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of (A) any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement,
or the omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein not misleading
or arising out of any untrue statement or alleged untrue statement of a
material fact contained in the Prospectus, or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading or (B) any untrue statement or alleged untrue statement
of a material fact contained in any Issuer Free Writing Prospectus or any
Issuer Information contained in any Underwriter Free Writing Prospectus, or
the omission or alleged omission to state a material fact necessary to make
the statements therein (when read in conjunction with the other Time of Sale
Information), in light of the circumstances under which they were made, not
misleading, which was not corrected by Corrective Information subsequently
supplied by the Company to the Underwriter within a reasonable period of time
prior to the Time of Sale, or (iii) any breach of the representation and
warranty in Section 1(a)(xv);
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with the
written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including, the
fees and disbursements of counsel chosen by you), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the extent
that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission as to which the
Underwriter has agreed to indemnify the Company pursuant to Section 6(b).
(b) The Underwriter agrees to indemnify and hold harmless the Company,
its directors, each of its officers who signed the Registration Statement, and
each person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to (i) any untrue statements or alleged untrue
statements of a material fact, or omissions or alleged omissions to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, in the Underwriter
Statements and (ii) any untrue statements or alleged untrue statements of a
material fact in any Underwriter Free Writing Prospectus (as defined herein) or
any omission or alleged omission to state in such Underwriter Free Writing
Prospectus a material fact necessary in order to make the statements therein
(when read in conjunction with the Time of Sale Information), in the light of
the circumstances under which they were made, not misleading; provided, that the
Underwriter shall not be obligated to so indemnify or hold harmless (A) to the
extent such loss, liability, claim, damage or expense is caused by a
misstatement or omission resulting from an error or omission in the Issuer
Information which was not corrected by Corrective Information subsequently
supplied by the Company to the Underwriter within a reasonable period of time
prior to the Time of Sale or (B) with respect to information that is also
contained in the Time of Sale Information.
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have to any indemnified party otherwise than on account of this
indemnity agreement. In case any such action is brought against any indemnified
party and it notifies the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that, by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, the indemnifying
party elects to assume the defense thereof, it may participate (jointly with any
other indemnifying party similarly notified) with counsel satisfactory to such
indemnified party; provided, however, that if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party or parties shall have reasonably concluded that there may be
legal defenses available to it or them and/or other indemnified parties that are
different from or additional to those available to the indemnifying party, the
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 the indemnifying party to such indemnified party of its election so to
assume the defense of such action and approval by the indemnified party of such
counsel, the indemnifying party shall not be liable to such indemnified party
under this paragraph for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof, unless (i) the
indemnified party shall have employed separate counsel (plus any local counsel)
in connection with the assertion of legal defenses in accordance with the
proviso to the immediately preceding sentence, (ii) the indemnifying party shall
not have employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of the
action, (iii) the indemnifying party has authorized the employment of counsel
for the indemnified party at the expense of the indemnifying party, or (iv) a
conflict or potential conflict exists (based on advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party (in
which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party). Unless it shall assume the
defense of any proceeding, the indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party shall indemnify the indemnified party from and against any
loss or liability by reason of such settlement or judgment. If any indemnifying
party assumes the defense of any proceeding, it shall not settle, compromise or
consent to the entry of any judgment with respect thereto if indemnification or
contribution could be sought under this Section 6 (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes any unconditional release of each
indemnified party from all liability arising out of such proceeding and (ii)
does not include a statement as to or an admission of fault, culpability or a
failure to act by or on behalf of any indemnified party.
(d) Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
this Section 6 is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, the Company and the
Underwriter shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by such indemnity agreement
incurred by the Company and the Underwriter, as incurred, in such proportion as
is appropriate to reflect not only the relative benefits received by the Company
on the one hand and the Underwriter on the other from the offering of the
Offered Certificates but also the relative fault of the Company on the one hand
and the Underwriter on the other in connection with the statements or omissions
which resulted on such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative fault of the Company on
the one hand and of the Underwriter on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact relates to information supplied by the Company or by the
Underwriter, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission; provided,
however, that no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) or willful failure to comply with
Section 8 shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation or failure to comply with Section 7, as the
case may be. For purposes of this Section, each person, if any, who controls the
Underwriter within the meaning of Section 15 of the 1933 Act shall have the same
rights to contribution as the Underwriter, and each director of the Company,
each officer of the Company who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act shall have the same rights to contribution as the Company. This
indemnity agreement will be in addition to any liability that the Underwriter
may otherwise have. Notwithstanding the provisions of this Section 6, the
Underwriter shall not be required to contribute any amount in excess of the
amount by which the total price at which the Offered Certificates underwritten
by it and distributed to the public were sold to the public exceeds the amount
of any damages which the Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission.
Section 7. Offering by Underwriter; Free Writing Prospectus.
(a) In connection with the offering of the Offered Certificates, the
Underwriter may 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(R) or Microsoft Excel(R) 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 the Underwriter agrees):
(i) Unless preceded or accompanied by the Prospectus, the Underwriter
shall not convey or deliver any written communication to any person in
connection with the initial offering of the Offered Certificates, unless such
written communication (1) is made in reliance on Rule 134 under the 1933 Act,
(2) constitutes a prospectus satisfying the requirements of Rule 430B under
the 1933 Act or (3) constitutes Time of Sale Information or a Free Writing
Prospectus that does not constitute Time of Sale Information. Without the
Company's prior written consent, the Underwriter shall not convey or deliver
in connection with the initial offering of the Offered Certificates any "ABS
informational and computational material," as defined in Item 1101(a) of
Regulation AB under the Securities Act ("ABS Informational and Computational
Material"), in reliance upon Rules 167 and 426 under the Securities Act.
(ii) The Underwriter shall deliver to the Company, no later than two
business days prior to the date of first use thereof or such later date as
may be agreed to by the Company, (a) any Free Writing Prospectus that was
prepared by or on behalf of the Underwriter (an "Underwriter Free Writing
Prospectus") and contains any "issuer information", as defined in Rule 433(h)
under the 1933 Act and footnote 271 of the Commission's Securities Offering
Reform Release No. 33-8591 ("Issuer Information"), and (b) any Free Writing
Prospectus or portion thereof that contains only a description of the final
terms of the Offered Certificates. Notwithstanding the foregoing, any Free
Writing Prospectus that contains only ABS Informational and Computational
Materials may be delivered by the 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 1933 Act or (B) the date of
first use of such Free Writing Prospectus.
(iii) The Underwriter represents and warrants to the Company that the Free
Writing Prospectuses to be furnished to the Company by the Underwriter
pursuant to Section 7(a)(ii) will constitute all Free Writing Prospectuses of
the type described therein that were furnished to prospective purchasers of
Offered Certificates by the Underwriter in connection with its offer and sale
of the Offered Certificates.
(iv) The Underwriter represents and warrants to the Company that each
Free Writing Prospectus required to be provided by it to the Company pursuant
to Section 7(a)(ii) 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 (when read
in conjunction with the Time of Sale Information), in light of the
circumstances under which they were made, not misleading; provided however,
that the Underwriter makes no representation to the extent such misstatements
or omissions were the result of any inaccurate Issuer Information, which
information was not corrected by Corrective Information subsequently supplied
by the Company to the Underwriter within a reasonable period of time 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 the Underwriter to the Company pursuant to
Section 7(a)(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 is in
the business of publishing, radio or television broadcasting or otherwise
disseminating communications. Notwithstanding the foregoing, the Company
shall not be required to file (1) Issuer Information contained in any
Underwriter Free Writing Prospectus or Free Writing Prospectus of 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 Certificates, or (2) any Free Writing Prospectus or portion thereof
that contains a description of the Offered Certificates or the offering of
the Offered Certificates which does not reflect the final terms thereof.
(vi) Any Free Writing Prospectus required to be filed pursuant to
Section 7(a)(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 Certificates
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 Certificates 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 Certificates pursuant to Rule 424(b) under
the 1933 Act or two business days after the first use of such Free Writing
Prospectus; and (C) any Free Writing Prospectus required to be filed pursuant
to Section 7(a)(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;
(vii) The 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. Notwithstanding the foregoing, the Underwriter shall
file with the Commission any Free Writing Prospectus for which the
Underwriter 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
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 the Underwriter
becomes aware of the publication, radio or television broadcast or other
dissemination of the Free Writing Prospectus.
(viii) Notwithstanding the provisions of Sections 7(a)(v) and 7(a)(vii),
neither the Company nor the 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,
and the Underwriter shall not be required to file any Free Writing Prospectus
to the extent that the information contained therein is included in a
prospectus or Free Writing Prospectus previously filed that relates to the
offering of the Offered Certificates.
(ix) The Company and the Underwriter each agree that any Free Writing
Prospectuses prepared by it shall contain the following legend, or
substantially equivalent legend that complies with Rule 433 of the Act:
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 Securities and
Exchange Commission for more complete information about the issuer and
this offering. You may get these documents for free by visiting XXXXX on
the SEC web site at xxx.xxx.xxx. 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
1-888-227-2275 ext. 2663.
(x) (A) In the event that the Company becomes aware that, as of the Time
of Sale, any Issuer Free Writing Prospectus contains any untrue statement
of a material fact or omits to state a material fact necessary in order to
make the statements contained therein (when read in conjunction with the
Time of Sale Information), in light of the circumstances under which they
were made, not misleading (a "Defective Issuer Free Writing Prospectus"),
the Company shall notify the Underwriter of such untrue statement or
omission within one business day after discovery and the Company shall, if
requested by the Underwriter, prepare and deliver to the Underwriter a
Free Writing Prospectus that corrects the material misstatement or
omission in the Defective Issuer Free Writing Prospectus (such corrected
Issuer Free Writing Prospectus, a "Corrected Issuer Free Writing
Prospectus").
(B) In the event that the Underwriter becomes aware that, as of the Time
of Sale, any Underwriter Free Writing Prospectus delivered to an investor
in any Offered Certificates contained any untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements contained therein (when read in conjunction with the Time of
Sale Information), in light of the circumstances under which they were
made, not misleading (together with a Defective Issuer Free Writing
Prospectus, a "Defective Free Writing Prospectus"), the Underwriter shall
notify the Company of such untrue statement or omission within one
business day after discovery.
(C) The Underwriter shall, if requested by the Company:
(1) if the Defective Free Writing Prospectus was an
Underwriter Free Writing Prospectus, prepare a Free Writing
Prospectus that corrects the material misstatement in or omission
from the Defective Free Writing Prospectus (together with a
Corrected Issuer Free Writing Prospectus, a "Corrected Free Writing
Prospectus");
(2) deliver the Corrected Free Writing Prospectus to each
investor which received the Defective Free Writing Prospectus prior
to entering into a contract of sale with such investor;
(3) notify such investor in a prominent fashion that the prior
contract of sale with the investor has been terminated, and of the
investor's rights as a result of termination of such agreement;
(4) provide such investor with an opportunity to affirmatively
agree to purchase the Offered Certificates on the terms described in
the Corrected Free Writing Prospectus; and
(5) comply with any other requirements for reformation of the
original contract of sale with such investor, as described in
Section IV.A.2.c of Commission's Securities Offering Reform Release
No. 33-8591.
(D) In the event that the Defective Free Writing Prospectus was an Issuer
Free Writing Prospectus, and the Underwriter shall in good faith incur any
costs to an investor in connection with the reformation of the contract of
sale with the investor, the Company agrees to reimburse the Underwriter
for such costs; provided that, before incurring such costs, the
Underwriter first permits the Company access to the applicable investor
and an opportunity to attempt to mitigate such costs through direct
negotiation with such investor.
(xi) The Underwriter covenants with the Company that after the
final Prospectus is available the Underwriter shall not distribute any
written information concerning the Offered Certificates that contains Issuer
Information to a prospective purchaser of Offered Certificates unless such
information is preceded or accompanied by the final Prospectus.
(b) The Underwriter represents and warrants to, and agrees with, the
Company, that:
(i) In relation to each Member State of the European Economic Area
which has implemented the Prospectus Directive (each, a "Relevant Member
State"), the Underwriter has not made and will not make an offer of
Certificates to the public in that Relevant Member State prior to the
publication of a prospectus in relation to the Offered Certificates 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 Offered Certificates to
the public in that Relevant Member State at any time:
(A) 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;
(B) 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 (euro)43,000,000 and (3) an annual net turnover of more
than (euro)50,000,000, as shown in its last annual or consolidated
accounts; or
(C) 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 Offered
Certificates to the public" in relation to any Offered Certificates 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 Offered Certificates
to be offered so as to enable an investor to decide to purchase or subscribe
the Offered Certificates, 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 the European Commission Directive
2003/71/EC and includes any relevant implementing measure in each Relevant
Member State.
(ii) The Underwriter 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 United Kingdom Financial Services and Markets Act 2000 (the "FSMA"))
received by it in connection with the issue or sale of the Offered
Certificates in circumstances in which Section 21(1) of the FSMA does not
apply to the issuer.
(iii) The Underwriter has complied and will comply with all applicable
provisions of the FSMA with respect to anything done by it in relation to the
Offered Certificates in, from or otherwise involving the United Kingdom.
Section 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of the Underwriter or controlling
person, or by or on behalf of the Company, and shall survive delivery of the
Offered Certificates to the Underwriter.
Section 9. Termination of Agreement.
(a) The Underwriter may terminate this Agreement, by notice to the
Company, at any time at or prior to the Closing Date without liability on the
part of the Underwriter to the Company, if, prior to delivery and payment for
the Offered Certificates, (i) there has occurred any material adverse change in
the financial markets in the United States or elsewhere or any outbreak of
hostilities or escalation thereof or other calamity or crisis the effect of
which is such as to make it, in the judgment of the Underwriter, impracticable
to market the Offered Certificates on the terms and in the manner contemplated
in the Time of Sale Information and the Prospectus, or (ii) if trading generally
on either the American Stock Exchange or the New York Stock Exchange has been
suspended, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices for securities have been required, by either of said Exchanges
or by order of the Commission or any other governmental authority, or if a
banking moratorium has been declared by either Federal or New York authorities.
Section 10. Stabilization. In connection with the issue of the Offered
Certificates, the Underwriter (the "Stabilizing Manager") (or any person duly
appointed acting for the Stabilizing Manager) may over-allot or effect
transactions with a view to supporting the market price of the Offered
Certificates at a level higher than that which might otherwise prevail. However,
there is no obligation on the Stabilizing Manager (or any agent of the
Stabilizing Manager) to do this. Such stabilizing, if commenced, may be
discontinued at any time. Such stabilizing shall be conducted in accordance with
all applicable laws and rules. In conducting such over-allotment or stabilizing,
the Stabilizing Manager shall act as principal and not as agent of the Company.
Any loss or profit sustained as a consequence of any such over-allotment or
stabilizing shall be for the account of the Stabilizing Manager.
Section 11. Notices. All notices and other communications hereunder shall
be in writing and effective only on receipt and shall have been duly given if
mailed via the U.S. Postal Service and a reputable overnight delivery service,
hand delivered, sent by facsimile transmission or another reasonable and
standard form of telecommunication. Notices to Barclays shall be directed to
Barclays Capital Inc. at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Asset Securitization Group, with a copy to the Office of the General Counsel;
and notices to the Company shall be directed to it at Securitized Asset Backed
Receivables LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
President, with a copy to the Office of the General Counsel; or, as to any
party, such other address as may hereafter be furnished by such party to the
other parties in writing.
Section 12. Parties. This Agreement shall inure to the benefit of and be
binding upon the Underwriter and the Company and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation, other than the Underwriter
and the Company and their respective successors and the controlling persons and
officers and directors referred to in Section 6 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriter and the Company and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Offered Certificates from the Underwriter shall be
deemed to be a successor by reason merely of such purchase.
Section 13. Governing Law; Time; Jurisdiction; Waiver of Objection to
Venue. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York applicable to agreements made and to be performed
in said State. Specified times of day refer to New York City time.
Section 14. Execution in Counterparts; Severability; Integration. This
Agreement may be executed in any number of counterparts, each of which shall for
all purposes be deemed to be an original and all of which when taken together
shall constitute but one and the same Agreement. In case any provision in or
obligation under this Agreement shall be invalid, illegal or unenforceable in
any jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby. This
Agreement contains the final and complete integration of all prior expressions
by the parties hereto with respect to the subject matter hereof and shall
constitute the entire agreement among the parties hereto with respect to the
subject matter hereof and shall constitute entire Agreement among the parties
hereto with respect to the subject matter hereof, superseding all prior oral or
written understandings.
[SIGNATURE PAGE FOLLOWS]
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this Agreement, along with all counterparts, will become a binding agreement
between the Underwriter and the Company in accordance with its terms.
Very truly yours,
SECURITIZED ASSET BACKED RECEIVABLES
LLC
By: /s/ Xxxx Xxxxxxx
----------------------------------
Name: Xxxx Xxxxxxx
Title: Director
CONFIRMED AND ACCEPTED, as of the date first above written:
BARCLAYS CAPITAL INC.
By: /s/ Xxxxxxx Xxxx
------------------------------------
Name: Xxxxxxx Xxxx
Title: Managing Director
SCHEDULE A
Purchase Price as a
percentage of the
Aggregate Aggregate Principal
Principal Amount of Amount of
Certificates to be Certificates to be
Class Purchased by Underwriter Purchased
-------------- ------------------------ -------------------
Class A-2A $263,225,000 99.8750%
Class A-2B $101,030,000 99.8250%
Class A-2C $76,634,000 99.6900%
Class M-1 $73,695,000 99.5600%
Class M-2 $59,846,000 99.4500%
Class M-3 $15,827,000 99.2800%
Class B-1 $15,827,000 99.0000%
Class B-2 $14,343,000 98.7500%
Class B-3 $12,860,000 96.5428%
SCHEDULE B
Other Free Writing Prospectuses
None.
