Mortgage Pass-Through Certificates, Series 1997-1
$31,000,000 Class A-1 Certificates 6.62% Pass-Through Rate
$24,200,000 Class A-2 Certificates 7.01% Pass-Through Rate
$14,500,000 Class A-3 Certificates 7.19% Pass-Through Rate
$12,000,000 Class A-4 Certificates 7.38% Pass-Through Rate
$21,141,606 Class A-5 Certificates 7.55% Pass-Through Rate
Equity One ABS, Inc.
Depositor
Equity One, Inc.
Servicer
UNDERWRITING AGREEMENT
June 26, 1997
Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Ladies and Gentlemen:
Equity One ABS Inc., a Delaware corporation ("Depositor"), a wholly
owned subsidiary of Equity One, Inc., a Delaware corporation ("Equity One"),
proposes to sell $102,841,606 aggregate principal amount of Mortgage
Pass-Through Certificates, Series 1997-1, of the classes described in Schedule I
hereto (the "Certificates") to be issued pursuant to a Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement") to be dated as of June 1, 1997
(the "Cut-Off Date"), among the Depositor, Equity One, as seller and servicer,
The Chase Manhattan Bank, a New York banking corporation, as trustee (the
"Trustee"), and each of the other Sellers named therein, and proposes to sell
the Certificates to you (the "Underwriter"). The assets of the Trust Fund will
include, among other things, a pool of fixed-rate mortgage loans secured
primarily by first liens on one-to-four family dwellings, units in condominium
developments and mixed-use properties. The Certificates are described more fully
in a registration statement which the Depositor has furnished to you. This is to
confirm the arrangements with respect to your purchase of the Certificates. To
the extent not defined herein, capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
1. Representations and Warranties. Each of the Depositor and Equity One
represents and warrants to, and agrees with, the Underwriter as set forth below
in this Section 1. Certain terms used in this Section 1 are defined in paragraph
(c) hereof.
(a) The Depositor meets the requirements for the use of Form
S-3 under the Securities Act of 1933, as amended (the "Act") and has
filed with the Securities and Exchange Commission
(the "Commission") a registration statement (file no. 333-24599),
including a related preliminary basic prospectus and a preliminary
prospectus supplement, on Form S-3 for the registration under the Act
of the offering and sale of asset-backed securities, including the
Certificates. The Depositor may have filed one or more amendments
thereto, including a preliminary basic prospectus and preliminary
prospectus supplement, each of which has previously been furnished to
you. The Depositor will next file with the Commission either (i) prior
to effectiveness of such registration statement, a further amendment
thereto (including the form of final basic prospectus and final
prospectus supplement), (ii) after effectiveness of such registration
statement, a final basic prospectus and a final prospectus supplement
relating to the Certificates in accordance with Rules 430A and
424(b)(1) or (4) or (iii) a final basic prospectus and final prospectus
supplement relating to the Certificates in accordance with Rules 415
and 424(b)(2) or (5). In the case of clauses (ii) and (iii) above, the
Depositor has included in such registration statement, as amended at
the Effective Date, all information (other than Rule 430A Information)
required by the Act and the rules thereunder to be included in the
Final Prospectus with respect to the Certificates and the offering
thereof. As filed, such amendment and form of final prospectus, or such
final prospectus, as the case may be, shall include all Rule 430A
Information together with all other such required information with
respect to the Certificates and the offering thereof and, except to the
extent the Underwriter shall agree in writing to a modification, shall
be in all substantive respects in the form furnished to you prior to
the Execution Time or, to the extent not completed at the Execution
Time, shall contain only such specific additional information and other
changes (beyond that contained in the latest preliminary basic
prospectus and preliminary prospectus supplement, if any, that have
previously been furnished to you) as the Depositor has advised you,
prior to the Execution Time, will be included or made therein. If the
Registration Statement contains the undertaking specified in Regulation
S-K Item 512(a), the Registration Statement, at the Execution Time,
meets the requirements set forth in Rule 415(a)(1)(x).
(b) On the Effective Date, the Registration Statement did or
will, and when the Final Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date, the Final
Prospectus (and any supplements thereto) will, comply in all material
respects with the applicable requirements of the Act and the Exchange
Act and the respective rules thereunder; on the Effective Date, the
Registration Statement did not or will not contain any untrue statement
of a material fact or omit to state any material fact required to be
stated therein or necessary in order to
2
make the statements therein not misleading; and, on the Effective
Date, the Final Prospectus, if not filed pursuant to Rule 424(b), did
not or will not, and on the date of any filing pursuant to Rule 424(b)
and on the Closing Date (as defined in Section 3 below) the Final
Prospectus (together with any supplement thereto) will not, include 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 neither the Depositor nor Equity One makes any
representations or warranties as to the information contained in or
omitted from (x) the Registration Statement or the Final Prospectus (or
any supplement thereto) in reliance upon and in conformity with
information furnished in writing to the Depositor by or on behalf of
the Underwriter specifically for inclusion in the Registration
Statement or the Final Prospectus (or any supplement thereto) and (y)
any Derived Information set forth in the Computational Materials (each
as defined in Section 9 below), or in any amendment thereof or
supplement thereto, incorporated by reference in such Registration
Statement or such Final Prospectus (or any amendment thereof or
supplement thereto) except to the extent such Derived Information
results from an error or omission in any Seller-Provided Information
(as defined in Section 9 below).
(c) For purposes of this Agreement, "Effective Time" means the
date and time as of which such registration statement, or the most
recent post-effective amendment thereto, if any, was declared effective
by the Commission, and "Effective Date" means the date of the Effective
Time and each date after the date hereof on which a document
incorporated by reference in the Registration Statement is filed.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto. Such registration
statement, as amended at the Effective Time, including all information
deemed to be a part of such registration statement as of the Effective
Time pursuant to Rule 430A(b) under the Act, the exhibits thereto and
any material and documents incorporated by reference therein, is
hereinafter referred to as the "Registration Statement." "Basic
Prospectus" shall mean the basic prospectus referred to in paragraph
(a) above contained in the Registration Statement at the Effective
Date; provided, that, if the Basic Prospectus used in connection with
any Preliminary Prospectus Supplement or the Final Prospectus shall
differ from the Basic Prospectus contained in the Registration
Statement at the Effective Date, then "Basic Prospectus" shall
mean the Basic Prospectus included with such Preliminary Prospectus
Supplement or the Final Prospectus, as filed pursuant to Rule 424(b).
"Preliminary Prospectus Supplement" shall mean a preliminary prospectus
supplement, if any, to the Basic
3
Prospectus which describes the Certificates and the offering thereof
and is used prior to the filing of the Final Prospectus. "Final
Prospectus" shall mean the prospectus supplement relating to the
Certificates that is first filed pursuant to Rule 424(b) after the
Execution Time, together with the Basic Prospectus or, if no filing
pursuant to Rule 424(b) is required, shall mean the prospectus
supplement relating to the Certificates, including the Basic
Prospectus, included in the Registration Statement at the Effective
Date including in each such case any material and documents
incorporated by reference therein. "Rule 430A Information" means
information with respect to the Certificates and the offering of the
Certificates permitted to be omitted from the Registration Statement
when it becomes effective pursuant to Rule 430A. "Rule 415," "Rule
424," "Rule 430A" and "Regulation S-K" refer to such rules or
regulations under the Act. Any reference herein to the Registration
Statement, any Preliminary Prospectus Supplement or the Final
Prospectus shall be deemed to refer to and include the material and
documents incorporated by reference therein pursuant to Item 12 of Form
S-3 which were filed under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), on or before the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus, such
Preliminary Prospectus Supplement or the Final Prospectus, as the case
may be; and any reference herein to the terms "amend," "amendment" or
"supplement" with respect to the Registration Statement, the Basic
Prospectus, any Preliminary Prospectus Supplement or the Final
Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the Effective Date of the
Registration Statement, or the issue date of the Basic Prospectus, any
Preliminary Prospectus Supplement or the Final Prospectus, as the case
may be, deemed to be incorporated therein by reference.
(d) No consent, approval, authorization or order of, or filing
with, any court or governmental agency or body is required to be
obtained or made by Equity One, the Depositor or any Seller for the
consummation of the transactions contemplated by this Agreement except
such as have been obtained, made under the Act or as may be required
under state securities laws.
(e) None of Equity One, the Depositor or any Seller is in
violation of its charter or by-laws or in default in the performance or
observance of any obligation, agreement, covenant or condition
contained in any agreement or instrument to which it is a party or by
which it or its properties is bound that would have a material adverse
effect on the trans actions contemplated herein or in the Pooling and
Servicing Agreement. The execution, delivery and performance of this
Agreement and the Pooling and Servicing Agreement and
4
the issuance and sale of the Certificates and compliance with the terms
and provisions thereof will not result in a breach or violation of any
of the terms and provisions of, or constitute a default under, any
statute, rule, regulation or order of any governmental agency or body
or any court having jurisdiction over any of Equity One, the Depositor
or any Seller or any of their properties or any agreement or instrument
to which any of them is a party or by which any of them is bound or to
which any of the properties of any of them is subject or the charter or
by-laws of any of them, and each of them has full power and authority
to authorize, issue and sell the Mortgage Loans and the Certificates as
contemplated by this Agreement and to enter into this Agreement and the
Pooling and Servicing Agreement.
(f) The computer tape of the Home Equity Loans created as of
June 6, 1997 and made available to you by Equity One and the Depositor,
was complete and accurate as of the date thereof and includes a
description of the Home Equity Loans that are described in a schedule
to the Pooling and Servicing Agreement.
(g) This Agreement has been duly authorized, executed and
delivered by each of Equity One and the Depositor.
(h) Any taxes, fees and other governmental charges in
connection with the execution, delivery and issuance of this Agreement
and the Pooling and Servicing Agreement or the execution, delivery and
sale of the Certificates have been or will be paid at or prior to the
Closing Date, to the extent then due and payable.
(i) Immediately prior to the assignment of the Mortgage Loans
to the Trustee as contemplated by the Pooling and Servicing Agreement,
the Depositor (i) will have good title to, and will be the sole owner
of, each Mortgage Loan and the other property purported to be
transferred by it to the Trustee pursuant to the Pooling and Servicing
Agreement free and clear of any pledge, mortgage, lien, security
interest or other encumbrance (collectively, "Liens"), (ii) will not
have assigned to any person any of its right, title or interest in such
Mortgage Loans or property or in the Mortgage Loan Purchase Agreement
and (iii) will have the power and authority to sell such Mortgage Loans
and property to the Trustee, and upon the execution and delivery of the
Pooling and Servicing Agreement by the Trustee, on behalf of the
Certificateholders, the Trustee will have acquired all of the
Depositor's right, title and interest in and to such Mortgage Loans and
property free and clear of any Lien.
(j) All actions required to be taken by the Depositor and
Equity One as a condition to the offer and sale of the
5
Certificates as described herein or the consummation of any of the
transactions described in the Final Prospectus have been or, prior to
the Closing Date, will be taken.
(k) The representations and warranties of each of the Sellers,
the Depositor and Equity One in (or incorporated in) the Pooling and
Servicing Agreement and made in any Officers' Certificate of the
Sellers, the Depositor or Equity One delivered pursuant to the Pooling
and Servicing Agreement, will be true and correct at the time made and
on and as of the Closing Date as if set forth herein.
(l) The Mortgage Loans conveyed to the Trust Fund had
aggregate outstanding balances determined as of the Cut-off Date in the
amount set forth in the Final Prospectus.
(m) None of the Depositor, Equity One or any Seller will
grant, assign, pledge or transfer to any Person a security interest in,
or any other right, title or interest in, the Mortgage Loans, except as
provided in the Pooling and Servicing Agreement, and each will take all
action necessary in order to maintain the security interest in the
Mortgage Loans granted pursuant to the Pooling and Servicing Agreement.
(n) There are no actions, proceedings or investigations
pending, or to the best knowledge of either the Depositor or Equity
One, threatened against the Sellers, the Depositor or Equity One before
any court or before any governmental authority, arbitration board or
tribunal which, if adversely determined, could materially and adversely
affect, either in the individual or in the aggregate, the financial
position, business, operations or prospects of the Depositor or Equity
One.
(o) Under generally accepted accounting principles, each
Seller will record its transfer of the Mortgage Loans to the Depositor
pursuant to the Pooling and Servicing Agreement as a sale of the
Mortgage Loans.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Depositor
agrees to sell to the Underwriter, and the Underwriter agrees to purchase from
the Depositor, $102,841,606 aggregate principal amount of the Certificates, in
the principal amounts and at the purchase prices set forth in Schedule I hereto.
3. Delivery and Payment. Delivery of and payment for the Certificates
shall be made at 10:00 a.m. New York time, on July 2, 1997, at the offices of
Stradley, Ronon, Xxxxxxx & Xxxxx, LLP, 0000 Xxxxxxxx Xxxxxx, Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000, or such later time or date not later than five business days
thereafter as
6
the Underwriter shall designate (such date and time of delivery and payment for
the Certificates being herein called the "Closing Date"). Delivery of 5 (five)
global certificates, each certificate evidencing the full principal amount of
each of the classes of the Certificates, shall be made to the Underwriter,
against payment by the Underwriter of the purchase price thereof to the
Depositor by wire transfer in immediately available funds. The global
certificates to be so delivered to the Underwriter shall be registered in the
name of Cede & Co., as nominee for The Depository Trust Company ("DTC"). The
interest of beneficial owners of the Certificates will be represented by book
entries on the records of DTC and participating members thereof. Definitive
certificates evidencing the Certificates will be available only under limited
circumstances.
The Depositor agrees to have the Certificates available for inspection,
checking and packaging by the Underwriter in New York, New York, not later than
1:00 PM on the business day prior to the Closing Date.
4. Offering by Underwriter. It is understood that the Underwriter
proposes to offer the Certificates for sale to the public (which may include
selected dealers) as set forth in the Final Prospectus.
5. Agreements. Each of Equity One and the Depositor agrees with the
Underwriter that:
(a) The Depositor will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereto, to become effective. Prior to the termination of the
offering of the Certificates, the Depositor will not file any amendment
of the Registration Statement or supplement to the Final Prospectus or
any Preliminary Prospectus Supplement unless the Depositor has
furnished you a copy for your review prior to filing and will not file
any such proposed amendment or supplement to which you reasonably
object. Subject to the foregoing sentence, if the Registration
Statement has become or becomes effective pursuant to Rule 430A, or
filing of the Final Prospectus is otherwise required under Rule 424(b),
the Depositor will cause the Final Prospectus, properly completed, and
any supplement thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed
and will provide evidence satisfactory to the Underwriter of such
timely filing. The Depositor will promptly advise the Underwriter (i)
when the Registration Statement, if not effective at the Execution
Time, and any amendment thereto, shall have become effective, (ii) when
the Final Prospectus, and any supplement thereto shall have been filed
with the Commission pursuant to Rule 424(b), (iii) when, prior to
termination of the offering of the Securities,
7
any amendment to the Registration Statement shall have been filed or
become effective, (iv) of any request by the Commission for any
amendment of the Registration Statement or supplement to the Final
Prospectus or for any additional information, (v) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose and (vi) of the receipt by the Depositor or
the Trust of any notification with respect to the suspension of the
qualification of the Certificates for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, and will
use their best efforts to prevent the issuance of any such stop order
and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Certificates is required to be delivered under the Act, any event
occurs as a result of which the Final Prospectus as then supplemented
would include any untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein in the light
of the circumstances under which they were made not misleading, or if
it shall be necessary to amend the Registration Statement or supplement
the Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Depositor promptly will (i) prepare
and file with the Commission, subject to the second sentence of
paragraph (a) of this Section 5, an amendment or supplement which will
correct such statement or omission or effect such compliance and (ii)
supply any supplemented Final Prospectus to you in such quantities as
you may reasonably request.
(c) The Depositor will furnish to the Underwriter and counsel
for the Underwriter, without charge, copies of the Registration
Statement (including exhibits thereto) and, so long as delivery of a
prospectus by the Underwriter or a dealer may be required by the Act,
as many copies of any Preliminary Prospectus Supplement and the Final
Prospectus and any supplement thereto as the Underwriter may reasonably
request. The Depositor will pay the expenses of printing or other
production of all documents relating to the offering.
(d) The Depositor will cooperate, when and if requested by the
Underwriter at Depositor's sole expense, in the qualification of the
Certificates for sale under the laws of such jurisdictions as the
Underwriter may designate and will maintain such qualifications in
effect so long as required for the distribution of the Certificates;
provided, however, that the Depositor shall not be required to qualify
to do business in any jurisdiction where it is not now so qualified or
to take any action which would subject it to general or unlimited
service of process in any jurisdiction
8
where it is not now so subject.
(e) The Depositor will file with the Commission such reports
on Form SR as may be required pursuant to Rule 463 under the Act.
(f) As soon as practicable, the Depositor will cause the Trust
Fund to make generally available to the Certificateholders and to the
Underwriter an earnings statement or statements of the Trust Fund which
will satisfy the provisions of Section 11(a) of the Act and will
satisfy the requirements of Rule 158.
(g) The Depositor will cause any Computational Materials (as
defined in Section 9 hereof) with respect to the Certificates which are
delivered by an Underwriter to the Depositor pursuant to Section 9
hereof to be filed with the Commission on a Current Report on Form 8-K
on or before the date of the filing of the Final Prospectus pursuant to
Rule 424.
(h) The Depositor and Equity One will cooperate with the
Underwriter and use their best efforts to permit the Offered
Certificates to be eligible for clearance and settlement through The
Depository Trust Company.
(i) For a period from the date of this Agreement until the
retirement of the Certificates, the Servicer will deliver to you the
monthly servicing report, the annual statements of compliance and the
annual independent certified public accountants' reports furnished to
the Trustee pursuant to the Pooling and Servicing Agreement, as soon as
such statements and reports are furnished to the Trustee.
(j) So long as any of the Certificates is outstanding, Equity
One will furnish to you (i) as soon as practicable after the end of the
fiscal year all documents required to be distributed to holders of
Certificates or filed with the Commission pursuant to the Exchange Act
or any order of the Commission thereunder and (ii) from time to time,
any other information concerning Equity One or the Depositor filed with
any government or regulatory authority that is otherwise publicly
available, as you may reasonably request.
(k) To the extent, if any, that the rating provided with
respect to the Certificates by Xxxxx'x Investors Service, Inc.
("Xxxxx'x") or Standard & Poor's Ratings Service ("S&P" and together
with Xxxxx'x, the "Rating Agencies") is conditional upon the furnishing
of documents or the taking of any actions by the Depositor, the
Depositor shall furnish such documents and take such actions.
9
(l) Until 30 days following the Closing Date, neither the
Depositor nor any trust or other entity originated, directly or
indirectly, by the Depositor or Equity One will, without the prior
written consent of the Underwriter, offer, sell or contract to sell,
or otherwise dispose of, directly or indirectly, or announce the
offering of, any asset-backed securities collateralized by mortgage
loans (other than the Certificates).
6. Conditions to the Obligations of the Underwriter. The obligations of
the Underwriter to purchase the Certificates shall be subject to the accuracy of
the representations and warranties on the part of Equity One and the Depositor
contained herein as of the Execution Time and the Closing Date, to the accuracy
of the statements of Equity One and the Depositor made in any certificates
pursuant to the provisions hereof, to the performance by each of Equity One
and the Depositor of its obligations hereunder and to the following additional
conditions:
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Underwriter agrees in writing
to a later time, the Registration Statement will become effective not
later than (i) 6:00 p.m. New York City time, on the date of
determination of the public offering price, if such determination
occurred at or prior to 3:00 p.m. New York City time on such date or
(ii) 12:00 noon on the business day following the day on which the
public offering price was determined, if such determination occurred
after 3:00 p.m. New York City time on such date; if filing of the Final
Prospectus, or any supplement thereto, is required pursuant to Rule
424(b), the Final Prospectus, and any such supplement, shall have been
filed in the manner and within the time period required by Rule 424(b);
and no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose
shall have been instituted or threatened.
(b) The Underwriter shall have received the opinion of
Xxxxxxxx, Xxxxx, Xxxxxxx & Xxxxx, LLP, counsel for Equity One and the
Depositor, dated the Closing Date, to the effect that:
(i) Each of the Depositor and Equity One is a
corporation duly organized and validly existing under the laws
of the state of its incorporation with all corporate power and
authority necessary to own or hold its properties, to conduct
its business as described in the Final Prospectus and to enter
into and perform its obligations under this Agreement and the
Pooling and Servicing Agreement and is duly qualified to do
business where its ownership or lease of property or the
conduct of its business requires such qualification.
10
(ii) The Pooling and Servicing Agreement has been
duly authorized, executed and delivered by, and constitutes a
legal, valid and binding instrument enforceable against each
of the Depositor and Equity One in accordance with its terms
(subject to applicable bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium or other laws affecting
creditors' rights generally from time to time in effect) (such
opinion may also state that the enforceability of the
obligations of Equity One and the Depositor is subject to
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law)).
(iii) The Certificates and the Class R Certificates
have been duly authorized and, when executed and authenticated
in accordance with the provisions of the Pooling and Servicing
Agreement and delivered to and paid for by the Underwriter
pursuant to this Agreement, will be validly issued and
outstanding and will be entitled to the benefits of the
Pooling and Servicing Agreement.
(iv) To the knowledge of such counsel, there is no
pending or threatened action, suit or proceeding before any
court or governmental agency, authority or body or any
arbitrator involving Equity One, the Depositor, any Seller or
any of their subsidiaries, of a character required to be
disclosed in the Registration Statement which is not
adequately disclosed in the Final Prospectus, and there is no
franchise, contract or other document of a character required
to be described in the Registration Statement or Final
Prospectus, or to be filed as an exhibit, which is not
described or filed as required.
(v) The Certificates and the Pooling and Servicing
Agreement conform in all material respects to the descriptions
thereof contained in the Registration Statement and the Final
Prospectus.
(vi) The Registration Statement has become effective
under the Act; any required filing of the Basic Prospectus,
any Preliminary Prospectus Supplement, and the Final
Prospectus, and any supplements thereto, pursuant to Rule
424(b) has been made in the manner and within the time period
required by Rule 424(b); to the knowledge of such counsel, no
stop order suspending the effectiveness of the Registration
Statement has been issued, no proceedings
11
for that purpose have been instituted or threatened, and the
Registration Statement and the Final Prospectus (other than
Computational Materials, the financial statements and other
financial and statistical information contained therein as to
which such counsel need express no opinion) comply as to form
in all material respects with the applicable requirements of
the Act, the Exchange Act and the respective rules there-
under; and such counsel has no reason to believe that at the
Effective Date the Registration Statement contained any untrue
statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading or that the Final
Prospectus, at the date thereof or at the Closing Date,
included or includes any untrue statement of a material fact
or omitted or omits 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
(other than Computational Materials, the financial statements
and other financial and statistical information contained
therein as to which such counsel need express no opinion).
(vii) This Agreement has been duly authorized,
executed and delivered by Equity One and the Depositor.
(viii) The statements in the Registration Statement
and the Final Prospectus under the headings "Summary of Terms
--Federal Income Tax Consequences", "Federal Income Tax
Consequences" and "ERISA Considerations" in the prospectus
supplement and "Summary of Terms--Federal Income Tax
Consequences", "Summary of Terms--ERISA Considerations",
"Federal Income Tax Consequences", "State Tax Consequences"
and "ERISA Considerations" in the basic prospectus, to the
extent that they constitute matters of law or legal
conclusions with respect thereto, are correct in all material
respects.
(ix) The statements in the Final Prospectus under the
headings "Risk Factors--Certain Other Legal Aspects of the
Loans" and "Certain Legal Aspects of the Loans" in the basic
prospectus, to the extent that they constitute matters of law
or legal conclusions with respect thereto, provide a fair and
accurate summary of such law or conclusions.
(x) The Pooling and Servicing Agreement is not
required to be qualified under the Trust Indenture Act of
1939, as amended, and neither the Depositor nor the Trust Fund
is required to be registered under the
12
Investment Company Act of 1940, as amended.
(xi) The trust fund as described in the Final
Prospectus and the Pooling and Servicing Agreement will
qualify as a "real estate mortgage investment conduit"
("REMIC") within the meaning of Section 860D of the Internal
Revenue Code of 1986, as amended (the "Code"), the
Certificates will be treated as "regular interests" in such
REMIC and the Class R Certificates will be treated as the
single class of "residual interests" in such REMIC, assuming:
(i) an election is made to treat the trust funds as a REMIC,
(ii) compliance with the Pooling and Servicing Agreement and
(iii) compliance with changes in the law, including any
amendments to the Code or applicable Treasury regulations
thereunder.
(xii) No consent, approval, authorization, order,
registration, filing, qualification, license or permit of or
with any court or governmental agency or body is required for
the consummation of the transactions contemplated herein
except such as have been obtained under the Act, such as may
be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the
Certificates by the Underwriter, and such other approvals
(specified in such opinion) as have been obtained.
(xiii) Neither the execution and delivery of the
Pooling and Servicing Agreement, the issue and sale of the
Certificates, nor the consummation of any other of the
transactions herein contemplated nor the fulfillment of the
terms hereof or of the Pooling and Servicing Agreement will
conflict with, result in a breach of, or constitute a default
under the charter or by-laws of Equity One or the Depositor or
the terms of any indenture or other agreement or instrument
known to such counsel and to which Equity One or the Depositor
is a party or bound, or, to the knowledge of such counsel, any
law, order or regulation applicable to Equity One, or the
Depositor of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction
over Equity One or the Depositor.
(xiv) to the best knowledge of such counsel and
except as set forth in the Prospectus, no default exists and
no event has occurred which, with notice, lapse of time or
both, would constitute a default in the due performance and
observance of any term, covenant or condition of any agreement
to which the Depositor is a party or by which it is bound,
which default is or would have a material adverse effect on
13
the financial condition, earnings, prospects, business or
properties of the Depositor, taken as a whole;
(xv) to the best knowledge of such counsel, the
Depositor has obtained all material licenses, permits and
other governmental authorizations that are necessary to the
conduct of its business; such licenses, permits and other
governmental authorizations are in full force and effect, and
the Depositor is in all material respects complying therewith;
and the Depositor is otherwise in compliance with all laws,
rules, regulations and statutes of any jurisdiction to which
it is subject, except where non-compliance would not have a
material adverse effect on the Depositor;
In rendering such opinions, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
Commonwealth of Pennsylvania, the State of Delaware, the State of New
Jersey or the United States, to the extent deemed proper by such
counsel and specified in such opinion, upon the opinion of other
counsel of good standing believed to be reliable by such counsel and
who are satisfactory to counsel for the Underwriter and (B) as to
matters of fact, to the extent deemed proper by such counsel, on
certificates of responsible officers of Equity One, the Depositor, the
Sellers and the other parties to this Agreement and the Pooling and
Servicing Agreement, and of public officials. References to the Final
Prospectus in this paragraph (b) include any supplements thereto at the
Closing Date.
(c) The Underwriter shall have received from Brown & Wood LLP,
counsel for the Underwriter, such opinion or opinions, dated the
Closing Date, with respect to the issuance and sale of the
Certificates, the Pooling and Servicing Agreement, this Agreement, the
Registration Statement, the Final Prospectus and other related matters
as the Underwriter may reasonably require, and shall have furnished to
such counsel such documents as they reasonably request for the purpose
of enabling them to pass on such matters.
(d) The Underwriter shall have received from Price Waterhouse
LLP, certified public accountants, two letters, one such letter dated
the date hereof and satisfactory in form and substance to the
Underwriter and its counsel, confirming that they are independent
accountants within the meaning of the Act and the Exchange Act and the
respective applicable published rules and regulations thereunder and
stating to the effect that they have performed certain specified
procedures as a result of which they determined that certain
information of an accounting, financial or
14
statistical nature set forth in the Final Prospectus, agrees with the
provisions of the Pooling and Servicing Agreement and the records of
Equity One and the Sellers, and the other such letter dated the Closing
Date and satisfactory in form and substance to the Underwriter and its
counsel, confirming that the first such letter remains true as of the
Closing Date.
(e) The representations and warranties in this Agreement shall
be true and correct on and as of the Closing Date with the same effect
as though such representations and warranties had been made on and as
of such date, and the Underwriter shall have been furnished a
certificate of each of Equity One and the Depositor, signed by the
Chairman of the Board or the President and by the principal financial
or accounting officer of Equity One and the Depositor, respectively,
dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the
Final Prospectus, any supplement to the Final Prospectus and this
Agreement and that:
(i) the representations and warranties of Equity One
and the Depositor in this Agreement are true and correct in
all material respects on and as of the Closing Date with the
same effect, as if made on the Closing Date, and each of
Equity One and the Depositor has complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued, and no proceedings
for that purpose have been instituted or, to such officer's
knowledge, threatened; and
(iii) since the date of Equity One's most recent
audited financial statements, there has been no material
adverse change, or any development respecting a prospective
change, in the condition (financial or other) of Equity One,
the Depositor or any Seller, whether or not arising from
transactions in the ordinary course of business.
(f) Prior to the Closing Date, Equity One, the Depositor, and
each Seller shall have furnished to the Underwriter such further
information, certificates and documents as the Underwriter may
reasonably request.
(g) The Certificates have been given the rating of AAA by
Standard & Poor's Ratings Services and Aaa by Xxxxx'x Investors
Service, Inc.
15
(h) The Underwriter shall have received from counsel to the
Trustee an opinion, dated the Closing Date and satisfactory in form and
substance to the Underwriter and its counsel to the effect that:
(i) the Trustee is duly organized and validly
existing as a New York banking corporation with the power and
authority under the laws of New York to conduct business and
affairs as a trustee;
(ii) the Trustee has the corporate power and lawful
authority to perform the duties and obligation of trustee
under, to act as successor Servicer upon the terms and
conditions set forth in, and to accept the trust contemplated
by, the Pooling and Servicing Agreement;
(iii) the Pooling and Servicing Agreement has been
duly authorized, executed, delivered and accepted by the
Trustee, and the Pooling and Servicing Agreement is a legal,
valid and binding obligation enforceable against the Trustee
in accordance with its terms (subject to applicable
bankruptcy, insolvency, fraudulent transfer, reorganization
and other laws affecting creditors' rights generally from time
to time in effect) (such opinion may also state that the
enforceability of the Trustee's obligations is subject to
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law));
(iv) the Certificates have been duly authenticated by
the Trustee; and
(v) neither the execution nor delivery by the Trustee
of the Pooling and Servicing Agreement nor the consummation of
any of the transactions contemplated thereby require the
consent or approval of, the giving of notice to, the
registration with, or the taking of any other action with
respect to, any governmental authority or agency under any
existing federal or state law governing the banking or trust
powers of the Trustee.
(i) The Underwriter shall have received such opinions,
addressed to the Underwriter and dated the Closing Date, as are
delivered to the Rating Agencies.
(j) The Underwriter shall have received an opinion from
Xxxxxxxx, Xxxxx, Xxxxxxx & Xxxxx, LLP, counsel for Equity One and the
Depositor, dated the Closing Date and satisfactory in form and
substance to the Underwriter
16
regarding the true-sale of the Mortgage Loans by the Sellers to the
Depositor and by the Depositor to the Trustee, for the benefit of
Certificateholders.
(k) The Underwriter shall have received an opinion from
counsel for Equity One and the Depositor, dated the Closing Date and
satisfactory in form and substance to the Underwriter regarding
substantive consolidation.
(l) The Underwriter shall have received an opinion from
Counsel to the Insurer, dated the Closing Date and satisfactory in form
and substance to the Underwriter, addressed to the Underwriter and the
Trustee.
(m) The Underwriter shall have received a fully executed
Insurance Agreement by and among Equity One, the Depositor and the
Insurer, dated as of June 1, 1997 (the "Insurance Agreement"), and all
representations and warranties thereunder or made pursuant thereto
shall be true and correct, and the Depositor shall have performed its
obligations thereunder.
(n) The Policy relating to the Certificates shall have been
duly executed and issued at or prior to the Closing Date and shall
conform in all material respects to the description thereof in the
Final Prospectus.
(o) Subsequent to the Execution Time, there shall not have
been any reduction or withdrawal by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule
436(g) under the Securities Act) of the current rating of any
securities issued or originated by the Depositor or Equity One or any
notice given of any intended or potential reduction in or withdrawal of
any such rating or of a possible change in any such rating that does
not indicate the direction of the possible change.
(p) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Final Prospectus and the
date of the most recent audited financial statements of Equity One,
there shall not have been any change, or any development involving a
prospective change, which has not been disclosed to the Underwriter on
or before the date hereof in or affecting the condition, financial or
otherwise, of Equity One, the Depositor or any Seller the effect of
which is, in the reasonable judgment of the Underwriter, so material
and adverse as to make it impractical or inadvisable to proceed with
the offering or the delivery of the Certificates as contemplated by the
Registration Statement and the Final Prospectus.
If any of the conditions specified in this Section 6 shall
17
not have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Underwriter and counsel for the
Underwriter, this Agreement and all obligations of the Underwriter hereunder may
be canceled at, or at any time prior to, the Closing Date by the Underwriter.
Notice of such cancellation shall be given to the Depositor and Equity One in
writing or by telephone or telegraph confirmed in writing.
7. Reimbursement of Underwriter's Expenses. If the sale of the
Certificates provided for herein is not consummated because any condition to the
obligations of the Underwriter set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of Equity One or the Depositor to
perform any agreement herein or comply with any provision hereof other than by
reason of a default by the Underwriter, the Depositor will reimburse the
Underwriter upon demand for all out-of-pocket expenses (including reasonable
fees and disbursements of counsel) that shall have been incurred by it in
connection with the proposed purchase and sale of the Certificates.
8. Indemnification and Contribution. (a) Equity One and the Depositor,
jointly and severally, agree to indemnify and hold harmless the Underwriter and
each person who controls the Underwriter within the meaning of either the Act or
the Exchange Act against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject under the Act,
the Exchange Act or other Federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus
Supplement or the Final Prospectus, or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that (i) neither Equity
One nor the Depositor will be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made (x) therein in reliance upon and in conformity with written information
furnished to the Depositor by the Underwriter specifically for inclusion
therein, or (y) in any Derived Information (as defined in Section 9 below)
18
included by the Underwriter in any Computational Materials provided by the
Underwriter to the Depositor or any amendment or supplement thereof unless such
untrue statement or alleged untrue statement or omission or alleged omission
made in any Derived Information results from an error or omission in any
Seller-Provided Information (as defined herein), and (ii) such indemnity with
respect to any Preliminary Prospectus Supplement or Computational Materials
shall not inure to the benefit of the Underwriter (or any person controlling the
Underwriter) from whom the person asserting any such loss, claim, damage or
liability purchased the Certificates which are the subject thereof if such
person did not receive a copy of the Final Prospectus (or the Final Prospectus
as supplemented) at or prior to the confirmation of the sale of such
Certificates to such person in any case where such delivery is required by the
Act and the untrue statement or omission of a material fact contained in the
Preliminary Prospectus Supplement was corrected in the Final Prospectus (or the
Final Prospectus as supplemented). This indemnity agreement will be in addition
to any liability which Equity One or the Depositor may otherwise have.
(b) The Underwriter agrees to indemnify and hold harmless Equity One
and the Depositor, each of their respective directors, each of their respective
officers who signs the Registration Statement, and each person who controls
Equity One or the Depositor within the meaning of either the Act or the Exchange
Act, to the same extent as the foregoing indemnity from Equity One and the
Depositor to the Underwriter, but only with reference to (x) written information
relating to the Underwriter furnished to the Depositor by the Underwriter
specifically for inclusion in the documents referred to in the foregoing
indemnity or (y) any Derived Information included by the Underwriter in any
Computational Materials provided by the Underwriter to the Depositor or any
amendment or supplement thereof; provided, however that the indemnity with
respect to clause (y) above shall not apply to any untrue statement or alleged
untrue statement or omission or alleged omission made in any Derived Information
that results from an error or omission in any Seller-Provided Information. This
indemnity agreement will be in addition to any liability which the Underwriter
may otherwise have. For the purpose of clause (x) of this indemnity, Equity One
and the Depositor acknowledge that the statements set forth in the last
paragraph of the cover page and under the heading "Underwriting" in any
Preliminary Prospectus Supplement or the Final Prospectus constitute the only
information furnished in writing by the Underwriter for inclusion in the
documents referred to in the foregoing indemnity, and you, as the Underwriter,
confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this Section 8
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8,
19
notify the indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than under this
Section 8. In case any such action is brought against any indemnified party, and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to appoint counsel satisfactory to such indemnified party
to represent the indemnified party in such action; provided, however, that if
the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to defend 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 appoint counsel to defend such action
and approval by the indemnified party of such counsel, the indemnifying party
will not be liable to such indemnified party under this Section 8 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 in accordance with the proviso to the preceding sentence (it
being understood, however, that the indemnifying party shall not be liable for
the expenses of more than one separate counsel, approved by the Underwriter in
the case of paragraph (a) of this Section 8, representing the indemnified
parties under such paragraph (a) who are parties to such action), (ii) the
indemnifying party shall not have employed counsel reasonably 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) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest; and except that, if clause (i) or (iii) is
applicable, such liability shall be only in respect of the counsel referred to
in such clause (i) or (iii).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of this
Section 8 is due in accordance with its terms but is for any reason held by a
court to be unavailable from Equity One or the Depositor on grounds of policy or
otherwise, Equity One and the Depositor, on the one hand, and the Underwriter,
on the other, shall contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) to which Equity One and the Depositor, on
the one hand, and the Underwriter, on the other, may
20
be subject in such proportion so that the Underwriter is responsible for that
portion represented by the percentage that the underwriting discount bears to
the sum of such discount and the purchase price of the Certificates, and Equity
One and the Depositor are responsible for the balance; provided, however, that
no person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 8,
each person who controls the Underwriter within the meaning of the Act shall
have the same rights to contribution as the Underwriter, and each person who
controls Equity One or the Depositor within the meaning of either the Act or the
Exchange Act, each officer of Equity One or the Depositor and each director of
Equity One or the Depositor shall have the same rights to contribution as Equity
One and the Depositor, subject in each case to the proviso to the first sentence
of this paragraph (d). Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action, suit or proceeding against such
party in respect of which a claim for contribution may be made against another
party or parties under this paragraph (d), notify such party or parties from
whom contribution may be sought, but the omission to so notify such party or
parties shall not relieve the party or parties from whom contribution may be
sought from any other obligation it or they may have hereunder or otherwise than
under this paragraph (d).
9. Computational Materials. It is understood that the Underwriter may
provide to prospective investors certain Computational Materials and ABS Term
Sheets in connection with your offering of the Certificates, subject to the
following conditions:
(a) The Underwriter shall comply with all applicable laws and
regulations in connection with the use of Computational Materials, including the
No-Action Letter of May 20, 1994 issued by the Commission to Xxxxxx, Xxxxxxx
Acceptance Corporation I, Xxxxxx, Xxxxxxx & Co. Incorporated and Xxxxxx
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 (collectively, the "Xxxxxx/PSA
Letter"), as well as the PSA Letter referred to below. The Underwriter shall
comply with all applicable laws and regulations in connection with the use of
ABS Term Sheets, including the No Action Letter of February 17, 1995 issued by
the Commission to the Public Securities Association (the PSA Letter" and,
together with the Xxxxxx/PSA Letter, the "No-Action Letters").
(b) For purposes hereof, "Computational Materials" as used herein shall
have the meaning given such term in the No-Action Letters, but shall include
only those Computational Materials that have been prepared or delivered to
prospective
21
investors by or at the direction of the Underwriter. For purposes hereof, "ABS
Term Sheets" and "Collateral Term Sheets" as used herein shall have the meanings
given such terms in the PSA Letter but shall include only those ABS Term Sheets
or Collateral Term Sheets that have been prepared or delivered to prospective
investors by or at the direction of the Underwriter.
(c) (i) All Computational Materials and ABS Term Sheets provided to
prospective investors that are required to be filed with the Commission pursuant
to the No-Action Letters shall bear a legend on each page including the
following statement:
"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."
(ii) In the case of Collateral Term Sheets, 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 PROSPECTUS SUPPLEMENT RELATING TO
THE CERTIFICATES AND [EXCEPT WITH RESPECT TO THE INITIAL COLLATERAL
TERM SHEET] SUPERSEDES ALL INFORMATION CONTAINED IN ANY COLLATERAL TERM
SHEETS RELATING TO THE MORTGAGE POOL PREVIOUSLY PROVIDED BY XXXXXXX
XXXXXXXX INC."
The Depositor shall have the right to require additional specific legends or
notations to appear on any Computational Materials or ABS Term Sheets, the right
to require changes regarding the use of terminology and the right to determine
the types of information appearing therein. Notwithstanding the foregoing, this
subsection (c) will be satisfied if all Computational Materials and ABS Term
Sheets referred to therein bear a legend in a form previously approved in
writing by the Depositor.
(d) The Underwriter shall provide the Depositor with representative
forms of all Computational Materials and ABS Term Sheets prior to their first
use, to the extent such forms have not previously been approved by the Depositor
for use by the Underwriter. The Underwriter shall provide to the Depositor, for
filing on Form 8-K, copies (in such format as required by the Depositor) of all
Computational Materials and ABS Term Sheets that are required to be filed with
the Commission pursuant to the No-Action Letters. The Underwriter may provide
copies of the foregoing in a consolidated or aggregated form including all
information required to be filed. All Computational Materials and ABS Term
Sheets described in this subsection (d) must be provided to the Depositor not
later than 10:00 a.m. New York time one business day before filing thereof is
required pursuant to the terms of this Agreement. The Underwriter agrees that it
will not
22
provide to any investor or prospective investor in the Certificates 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
Depositor pursuant to this Section 9(d) (other than copies of Computational
Materials or ABS Term Sheets previously submitted to the Depositor in accordance
with this Section 9(d) for filing with the Commission), unless such
Computational Materials or ABS Term Sheets are preceded or accompanied by the
delivery of a Prospectus to such investor or prospective investor.
(e) 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 included in the Trust that differ
from the final Pool Information in any material respect or on Certificate
structuring terms that were revised in any material respect prior to the
printing of the Prospectus, the Underwriter shall prepare revised Computational
Materials or ABS Term Sheets, as the case may be, based 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 or subsequently indicate orally to the Underwriter they
will purchase all or any portion of the Certificates, and include such revised
Computational Materials and ABS Term Sheets (marked, "as revised") in the
materials delivered to the Depositor pursuant to subsection (d) above. As used
herein, "Pool Information" means information with respect to the characteristics
of the Mortgage Loans, as provide by or on behalf of the Depositor to the
Underwriter in final form and set forth in the Prospectus Supplement.
(f) The Depositor shall not be obligated to file any Computational
Materials or ABS Term Sheets that have been determined to contain any material
error or omission; provided, however, that, at the request of the Underwriter,
the Depositor will file Computational Materials or ABS Term Sheets that contain
a material error or omission if clearly marked "superseded by materials dated
_____" and accompanied by corrected Computational Materials or ABS Term Sheets
that are marked, "material previously dated _____, as corrected." In the event
that, within the period during which the Prospectus relating to the Certificates
is required to be delivered under the Act, any Computational Materials or ABS
Term Sheets are determined, in the reasonable judgment of the Depositor or the
Underwriter, to contain a material error or omission, the Underwriter shall
prepare a
23
corrected version of such Computational Materials or ABS Term Sheets, shall
circulate such corrected Computational Materials and ABS Term Sheets to all
recipients of the prior versions thereof that either indicated orally to the
Underwriter they would purchase all or any portion of the Certificates, 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 Depositor for filing with the Commission in a subsequent Form 8-K
submission.
(g) The Depositor and the Underwriter shall receive a letter from Price
Waterhouse LLP, certified public accountants, satisfactory in form and substance
to the Depositor and the Underwriter, to the effect that such accountants have
performed certain specified procedures agreed to by the Depositor and the
Underwriter, as a result of which they determined that the specified information
that is included in the Computational Materials and ABS Term Sheets (if any)
provided by the Underwriter to the Depositor for filing on Form 8-K as provided
in this Section 9 has been accurately computed or compiled from the Depositor
Provided Information.
(h) If the Underwriter does not provide any Computational Materials
or ABS Term Sheets to the Depositor pursuant to subsection (d) above, the
Underwriter shall be deemed to have represented, as of the Closing Date, that it
did not provide any prospective investors with any information in written or
electronic form in connection with the offering of the Certificates that is
required to be filed with the Commission in accordance with the No-Action
Letters.
(i) In the event of any delay in the delivery by the Underwriter to the
Depositor of all Computational Materials and ABS Term Sheets required to be
delivered in accordance with subsection (d) above, or in the delivery of the
accountant's comfort letter in respect thereof pursuant to Section 9(g), the
Depositor shall have the right to delay the release of the Prospectus to
investors or to the Underwriter, to delay the Closing Date and to take other
appropriate actions in each case as necessary in order to allow the Depositor to
comply with its obligation to file the Computational Materials and ABS Term
Sheets with the Commission.
(j) For purposes of this Agreement, as to the Underwriter, the term
"Derived Information" means such portion, if any, of the information that is:
(i) delivered to the Depositor by the Underwriter pursuant
to this Section 9 for filing with the Commission on Form 8-K;
(ii) is not contained in the Final Prospectus without taking
into account information incorporated therein by reference; and
24
(iii) does not constitute Seller-Provided Information.
"Seller-Provided Information" means any computer tape concerning the
assets comprising the Trust Fund and any other information with respect
to the Certificates or the Mortgage Loans furnished to the Underwriter
by the Depositor for use as contemplated herein.
10. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Underwriter, by notice given to the Depositor and
Equity One prior to delivery of and payment for the Certificates, if prior to
such time (i) trading in securities generally on the New York Stock Exchange
shall have been suspended or limited or minimum prices shall have been
established on such Exchange, (ii) a banking moratorium shall have been declared
either by Federal or New York State authorities or (iii) there shall have
occurred any outbreak or material escalation of hostilities, declaration by the
United States of a national emergency or war or other calamity or crisis the
effect of which on the financial markets of the United States is such as to make
it, in the judgment of the Underwriter, impracticable or inadvisable to proceed
with the offering or delivery of the Certificates as contemplated by the Final
Prospectus (exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of
Equity One or the Depositor or their respective officers and of the Underwriter
set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of the Underwriter,
Equity One or the Depositor or any of the officers, directors or controlling
persons referred to in Section 8 hereof, and will survive delivery of and
payment for the Certificates. The provisions of Sections 7 and 8 hereof shall
survive the termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Underwriter, will be mailed,
delivered or telegraphed and confirmed to Salomon Brothers Inc, Seven World
Trade Center, New York, New York 10048; or, if sent to the Depositor or Equity
One, will be mailed, delivered or telegraphed and confirmed to Equity One at
Equity One, Inc., 000 Xxxxxxxxxx Xxxx, Xxxxx 000, Xx. Laurel, New Jersey 08054,
attention: Treasurer, and to the Depositor at 103 Springer Building, 0000
Xxxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000, attention: Treasurer.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective
25
successors and the officers and directors and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
14. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
15. Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original, but all such
Counterparts will together constitute one and the same agreement.
26
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among Equity
One, the Depositor and the Underwriter.
Very truly yours,
EQUITY ONE ABS, INC.
By: /s/ Xxxxxx Xxxxxx
------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
EQUITY ONE, INC.
By: /s/ Xxxx X. Xxxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Senior Vice President
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above
written
SALOMON BROTHERS INC
By: /s/ Xxx X. Xxxxxxxxx
--------------------------
Name: Xxx X. Xxxxxxxxx
Title: Vice President
27
SCHEDULE I
TO
UNDERWRITING
AGREEMENT
Mortgage Pass-Through
Certificates, Principal Purchase
Series 1997-1 Amount Price
--------------------- --------- --------
Class A-1 $31,000,000 99.8177%
Class A-2 $24,200,000 99.7410%
Class A-3 $14,500,000 99.6706%
Class A-4 $12,000,000 99.6235%
Class A-5 $21,141,606 99.4577%
