Exhibit 1.1
BEAR XXXXXXX ASSET BACKED SECURITIES, INC.
ASSET-BACKED SECURITIES, SERIES 2002-2
UNDERWRITING AGREEMENT
July 26, 2002
To: the Firm or Firms
of the Underwriter named
on the signature page hereof
Ladies and Gentlemen:
Bear Xxxxxxx Asset Backed Securities, Inc., a Delaware corporation
("BSABS"), proposes to cause to be issued and to sell to you, as underwriter
(the "Underwriter"), the Asset-Backed Certificates, Series 2002-2, having the
classes specified on Exhibit A hereto and described in Section 2 hereof (the
"Public Certificates") having the characteristics set forth in the Prospectus
Supplement (as defined below), evidencing ownership interests in a trust
consisting of mortgage notes and the related mortgages acquired by BSABS (the
"Mortgage Loans") and other related property (collectively, the "Trust Fund").
The Mortgage Loans will be of the type and will have the characteristics
described in the Prospectus Supplement, subject to the variances, ranges,
minimums and maximums set forth in the Prospectus Supplement, and will have the
aggregate principal balance set forth in the Prospectus Supplement, subject to
an upward or downward variance in principal balance, not to exceed the
percentage set forth in the Prospectus Supplement, the precise aggregate
principal balance within such range to be determined by BSABS in its sole
discretion.
The Public Certificates, together with the other class of certificates of
the series specified in Exhibit A hereto (the "Private Certificates," and
collectively with the Public Certificates, the "Certificates") are to be issued
under a pooling and servicing agreement (the "Pooling and Servicing Agreement"),
dated as of July 1, 2002 (the "Cut-off Date"), among BSABS, as Depositor, EMC
Mortgage Corporation ("EMC"), as seller and a master servicer (in its capacity
as the seller, the "Seller" and in its capacity as a master servicer, the "EMC
Master Servicer"), Xxxxx Fargo Bank Minnesota, National Association ("Xxxxx
Fargo"), as master servicer and securities administrator (in its capacity as
master servicer, the "Xxxxx Fargo Master Servicer" and in its capacity as
securities administrator, the "Securities Administrator"), and Bank One,
National Association, as trustee, (the "Trustee"). The Public Certificates of
each class will be issued in the minimum denominations and will have the terms
set forth in the Prospectus Supplement. Capitalized terms used but not otherwise
defined herein shall have the respective meanings ascribed thereto in the
Pooling and Servicing Agreement.
1. REPRESENTATIONS AND WARRANTIES. BSABS represents and warrants to, and
agrees with, the Underwriter that:
(i) A registration statement on Form S-3 (File No. 333-56242),
including a prospectus, has been filed with the Securities and Exchange
Commission (the "Commission") and has become effective under the Securities
Act of 1933, as amended (the "Act"). As of the Closing Date (as hereinafter
defined), no stop order suspending the effectiveness of such registration
statement has been issued and no proceedings for that purpose have been
initiated or to BSABS' knowledge threatened by the Commission. The
prospectus in the form in which it will be used in connection with the
offering of the Public Certificates is proposed to be supplemented by a
prospectus supplement dated July 26, 2002, relating to the Certificates
and, as so supplemented, to be filed with the Commission pursuant to Rule
424 under the Act. (Such registration statement is hereinafter referred to
as the "Registration Statement"; such prospectus supplement, as first filed
with the Commission, is hereinafter referred to as the "Prospectus
Supplement"; and such Prospectus Supplement, together with the attached
base prospectus, dated as of November 27, 2001, in the form in which it
will be filed with the Commission in connection with the offering of the
Public Certificates, including documents incorporated therein as of the
time of such filing, is hereinafter referred to as the "Prospectus"). Any
reference herein to the Registration Statement, a preliminary prospectus or
the Prospectus shall be deemed to refer to and include the 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 date on which the Registration Statement,
as amended, became effective or the issue date of such preliminary
prospectus or the date on which the Prospectus is filed pursuant to Rule
424(b) under the Act, as the case may be; and any reference herein to the
terms "amend," "amendment" or supplement with respect to the Registration
Statement, any preliminary prospectus or the Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act
after the date on which the Registration Statement became effective or the
issue date of any preliminary prospectus or the date on which the
Prospectus is filed pursuant to Rule 424(b) under the Act, as the case may
be, deemed to be incorporated therein by reference.
(ii) The Registration Statement and the Prospectus, as of the date of
the Prospectus Supplement will conform, and the Registration Statement and
the Prospectus as revised, amended or supplemented and filed with the
Commission prior to the termination of the offering of the Public
Certificates, as of their respective effective or issue dates, will conform
in all material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder applicable to such documents as of
such respective dates, and the Registration Statement and the Prospectus as
revised, amended or supplemented and filed with the Commission as of the
Closing Date will conform in all material respects to the requirements of
the Act and the rules and regulations of the Commission thereunder
applicable to such documents as of the Closing Date. The Registration
Statement, at the time it became effective, did not include any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; and the Prospectus as of the date of the Prospectus Supplement,
and the Prospectus as revised, amended or supplemented and filed prior to
the Closing Date, as of the Closing Date, will not include any untrue
statement of a material fact and will not omit to state a material fact
required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading;
PROVIDED, HOWEVER, that BSABS makes no representations, warranties or
agreements as to the information contained in or omitted from the
Prospectus or any revision or amendment thereof or supplement thereto in
reliance upon and in conformity with information furnished in writing to
BSABS by or on behalf of the Underwriter specifically for use in connection
with the preparation of the Prospectus or any revision or amendment thereof
or supplement thereto, such information being defined in the
Indemnification and Contribution Agreement, dated the date hereof (the
"Indemnification Agreement"), among BSABS, EMC, and the Underwriter.
(iii) The Public Certificates will conform in all material respects to
the description thereof contained in the Prospectus, and each of the
Certificates, when validly authenticated, issued and delivered in
accordance with the Pooling and Servicing Agreement, will be duly and
validly issued and outstanding and entitled to the benefits of the Pooling
and Servicing Agreement. None of the Certificates will, when issued, be a
"mortgage related security" as such term is defined in Section 3(a)(41) of
the Exchange Act.
(iv) This Agreement has been duly authorized, executed and delivered
by BSABS. As of the Closing Date, the Pooling and Servicing Agreement will
have been duly authorized, executed and delivered by BSABS and will conform
in all material respects to the descriptions thereof contained in the
Prospectus and, assuming the valid execution and delivery thereof by the
other parties thereto, this Agreement and the Pooling and Servicing
Agreement each will constitute a legal, valid and binding agreement of
BSABS enforceable in accordance with its terms, except as the same may be
limited by bankruptcy, insolvency, reorganization or other similar laws
affecting creditors' rights generally and by general principles of equity.
(v) BSABS has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware with
corporate power and authority to own its properties and conduct its
business as described in the Prospectus and to enter into and perform its
obligations under the Pooling and Servicing Agreement and this Agreement.
(vi) Neither the issuance or delivery of the Certificates, nor the
consummation of any other of the transactions contemplated herein, nor
compliance with the provisions of the Pooling and Servicing Agreement, the
Indemnification Agreement or this Agreement, will conflict with or result
in the breach of any material term or provision of the certificate of
incorporation or by-laws of BSABS, and BSABS is not in breach or violation
of or in default (nor has an event occurred which with notice or lapse of
time or both would constitute a default) under the terms of (i) any
indenture, contract, lease, mortgage, deed of trust, note, agreement or
other evidence of indebtedness or other agreement, obligation or instrument
to which BSABS is a party or by which it or its properties are bound, or
(ii) any law, decree, order, rule or regulation applicable to BSABS of any
court or supervisory, regulatory, administrative or governmental agency,
body or authority, or arbitrator having jurisdiction over BSABS, or its
properties, the default in or the breach or violation of which would have a
material adverse effect on BSABS or the Certificates or the ability of
BSABS to perform its obligations under the Pooling and Servicing Agreement,
the Indemnification Agreement or this Agreement; and neither the delivery
of the Certificates, nor the consummation of any other of the transactions
contemplated herein, nor the compliance with the provisions of the Pooling
and Servicing Agreement, the Indemnification Agreement or this Agreement
will result in such a breach, violation or default which would have such a
material adverse effect.
(vii) No filing or registration with, notice to, or consent, approval,
authorization or order or other action of any court or governmental
authority or agency is required for the consummation by BSABS of the
transactions contemplated by this Agreement, the Indemnification Agreement
or the Pooling and Servicing Agreement (other than as required under "blue
sky" or state securities laws, as to which no representations and
warranties are made by BSABS), except such as have been, or will have been
prior to the Closing Date, obtained under the Act, and such recordations of
the assignment of the Mortgage Loans to the Trustee (to the extent such
recordations are required pursuant to the Pooling and Servicing Agreement)
that have not yet been completed.
(viii) There is no action, suit or proceeding before or by any court,
administrative or governmental agency now pending to which BSABS is a
party, or to the best of BSABS' knowledge threatened against BSABS, which
could reasonably result individually or in the aggregate in any material
adverse change in the condition (financial or otherwise), earnings,
affairs, regulatory situation or business prospects of BSABS or could
reasonably interfere with or materially and adversely affect the
consummation of the transactions contemplated in the Pooling and Servicing
Agreement, the Indemnification Agreement or this Agreement.
(ix) At the time of execution and delivery of the Pooling and
Servicing Agreement, (1) BSABS will own the Mortgage Loans being
transferred to the Trust Fund pursuant thereto, free and clear of any lien,
mortgage, pledge, charge, encumbrance, adverse claim or other security
interest (collectively, "Liens"), except to the extent permitted in the
Pooling and Servicing Agreement, and will not have assigned to any person
other than the Trust Fund any of its right, title or interest in the
Mortgage Loans, (2) BSABS will have the power and authority to transfer the
Mortgage Loans to the Trust Fund and to transfer the Certificates to you,
and (3) upon execution and delivery to the Trustee of the Pooling and
Servicing Agreement, and delivery of the Certificates to BSABS, the Trust
Fund will own the Mortgage Loans free of Liens other than Liens permitted
by the Pooling and Servicing Agreement or created or granted by you and (4)
upon payment and delivery of the Public Certificates to you, you will
acquire ownership of the Public Certificates, free of Liens other than
Liens permitted by the Pooling and Servicing Agreement or created or
granted by you.
(x) Any taxes, fees and other governmental charges in connection with
the execution, delivery and issuance of this Agreement, the Indemnification
Agreement, the Pooling and Servicing Agreement and the Certificates have
been or will be paid by BSABS at or prior to the Closing Date, except for
fees for recording assignments of the Mortgage Loans to the Trustee
pursuant to the Pooling and Servicing Agreement that have not yet been
completed, which fees will be paid by or on behalf of BSABS in accordance
with the Pooling and Servicing Agreement.
(xi) Each servicer who will be servicing any Mortgage Loans is
qualified to do business in all jurisdictions in which its activities as
servicer of the Mortgage Loans serviced by it require such qualification
except where failure to be so qualified will not have a material adverse
effect on such servicing activities.
(xii) The transfer of the Mortgage Loans to the Trust Fund on the
Closing Date will be treated by BSABS for financial accounting and
reporting purposes as a sale of assets and not as a pledge of assets to
secure debt.
(xiii) BSABS is not doing business with Cuba.
2. PURCHASE AND SALE. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, BSABS agrees to sell,
and the Underwriter agrees to purchase from BSABS, the initial aggregate
Certificate Principal Balance of each Class of Public Certificates to be
purchased by the Underwriter as specified in the Prospectus Supplement. The
purchase price at which the Underwriter will purchase the Public Certificates to
be purchased by it shall be as set forth in a separate pricing letter dated the
date hereof between the Underwriter and BSABS (the "Pricing Letter"), and the
terms of each such Pricing Letter are hereby incorporated herein by reference as
if such terms were stated herein in their entirety. References herein to this
"Agreement" shall include the terms of each Pricing Letter.
3. DELIVERY AND PAYMENT. The Public Certificates shall be delivered at the
office of Stroock & Stroock & Xxxxx LLP, 000 Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx
00000, on July 30, 2002 , at 10:00 a.m., which place, date and time may be
changed by agreement between the Underwriter and BSABS (such date and time of
delivery of and payment for such Public Certificates being hereinafter referred
to as the "Closing Date"). Delivery of the Public Certificates shall be made to
the Underwriter as against its payment of the purchase price therefor to or upon
the order of BSABS in immediately available federal funds. The Public
Certificates shall be registered in such names and in such denominations as the
Underwriter may have requested or as required by book-entry registration not
less than two full business days prior to the Closing Date. BSABS agrees to make
the Public Certificates available for inspection, checking and packaging in New
York, New York, on the business day prior to the Closing Date.
4. OFFERING BY UNDERWRITER. It is understood that the Underwriter proposes
to offer the Public Certificates being purchased by it for sale as set forth in
the Prospectus and that you will not offer, sell or otherwise distribute the
Public Certificates (except for the sale thereof in exempt transactions) in any
state in which the Public Certificates are not exempt from registration under
"blue sky" or state securities laws (except where the Public Certificates will
have been qualified for offering and sale at your direction under such "blue
sky" or state securities laws).
5. AGREEMENTS. BSABS agrees with the Underwriter that:
(a) BSABS will cause the Prospectus to be filed with the Commission
pursuant to Rule 424 under the Act and, if necessary, within 15 days of the
Closing Date, will file a report on Form 8-K setting forth specific information
concerning the Mortgage Loans, and will promptly advise the Underwriter when the
Prospectus has been so filed, and, prior to the termination of the offering of
the Public Certificates, will also promptly advise the Underwriter (i) when any
amendment to the Registration Statement has become effective or any revision of
or supplement to the Prospectus has been so filed (unless such amendment,
revision or supplement does not relate to the Certificates), (ii) of any request
by the Commission for any amendment of the Registration Statement or the
Prospectus or for any additional information (unless such request for additional
information does not relate to the Certificates), (iii) of any written
notification received by BSABS of the suspension of qualification of the Public
Certificates for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose and (iv) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement or the
institution or to the knowledge of BSABS, the threatening of any proceeding for
that purpose. BSABS will use its best efforts to prevent the issuance of any
such stop order and, if issued, to obtain as soon as possible the withdrawal
thereof. Except as otherwise provided in Section 5(b) hereof, BSABS will not
file prior to the termination of such offering any amendment to the Registration
Statement or any revision of or supplement to the Prospectus (other than any
such amendment, revision or supplement which does not relate to the
Certificates) which shall be disapproved by the Underwriter after reasonable
notice and review of such filing.
(b) If, at any time when a prospectus relating to the Public
Certificates is required to be delivered under the Act (i) any event occurs as a
result of which the Prospectus as then amended or supplemented would include any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein in light of the circumstances under which they
were made not misleading, or (ii) it shall be necessary to revise, amend or
supplement the Prospectus to comply with the Act or the rules and regulations of
the Commission thereunder, BSABS promptly will notify the Underwriter and will,
upon the request of the Underwriter, or may, after consultation with the
Underwriter, prepare and file with the Commission a revision, amendment or
supplement which will correct such statement or omission or effect such
compliance, and furnish without charge to the Underwriter as many copies as the
Underwriter may from time to time reasonably request of an amended Prospectus or
a supplement to the Prospectus which will correct such statement or omission or
effect such compliance.
(c) BSABS will furnish to the Underwriter and counsel to the
Underwriter, without charge, conformed copies of the Registration Statement
(including exhibits thereto) and, so long as delivery of a prospectus relating
to the Public Certificates is required under the Act, as many copies of the
Prospectus and any revisions or amendments thereof or supplements thereto as may
be reasonably requested.
(i) BSABS will, as between itself and the Underwriter, pay all
expenses incidental to the performance of its obligations under this
Agreement, including without limitation (i) expenses of preparing, printing
and reproducing the Registration Statement, the Prospectus, the Pooling and
Servicing Agreement and the Certificates, (ii) the cost of delivering the
Public Certificates to the Underwriter, insured to your reasonable
satisfaction, (iii) the fees charged by securities rating agencies for
rating the Certificates, (iv) the fees and expenses of Deloitte & Touche,
accountants for the Trust Fund, (v) the fees and expenses of the Trustee,
other than those to be borne by the Trustee, (vi) the fees and expenses of
Xxxxx Fargo, other than those to be borne by Xxxxx Fargo, and (vii) all
other costs and expenses incidental to the performance by BSABS of BSABS'
obligations hereunder which are not otherwise specifically provided for in
this subsection. It is understood that, except as provided in this
paragraph (d) and in Section 9 hereof, the Underwriter will pay all of its
own expenses, including (i) the fees of any counsel to the Underwriter,
(ii) any transfer taxes on resale of any of the Certificates by it, (iii)
any advertising expenses connected with any offers that the Underwriter may
make and (iv) any expenses for the qualification of the Certificates under
"blue sky" or state securities laws, including filing fees and the fee and
disbursements of counsel for the Underwriter in connection therewith and in
connection with the preparation of any Blue Sky Survey.
(d) So long as any Certificates are outstanding, upon request of the
Underwriter, BSABS will, or will cause the Securities Administrator to, furnish
to the Underwriter, as soon as available, a copy of (i) the annual statement of
compliance delivered by the EMC Master Servicer and the Xxxxx Fargo Master
Servicer under the Pooling and Servicing Agreement, (ii) the annual independent
public accountants' servicing report furnished to the Trustee and the Securities
Administrator pursuant to the Pooling and Servicing Agreement, (iii) each report
of BSABS regarding the Certificates filed with the Commission under the Exchange
Act or mailed to the holders of the Certificates and (iv) from time to time,
such other information concerning the Certificates which may be furnished by
BSABS or the Securities Administrator without undue expense and without
violation of applicable law.
(e) BSABS will file a current report on Form 8-K for purposes of
filing any Computational Materials (as defined in the Indemnification Agreement)
furnished to BSABS by the Underwriter prior to the time of filing of the
Prospectus as provided in Section 5(a) hereof and will include therein all
Computational Materials so furnished. In addition, BSABS will file all reports
with respect to the Trust Fund required to be filed under the Exchange Act when
the same are required thereby to be so filed.
6. CONDITIONS TO THE OBLIGATIONS OF UNDERWRITER. The obligation of the
Underwriter to purchase the Public Certificates to be purchased by it as
indicated in the related Pricing Letter and as provided herein shall be subject
to the accuracy in all material respects of the representations and warranties
on the part of BSABS contained herein as of the date hereof and as of the
Closing Date, to the accuracy of the statements of BSABS made in any officer's
certificate pursuant to the provisions hereof, to the performance in all
material respects by BSABS of its obligations hereunder and to the following
additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been instituted and be pending or shall have been threatened, and the Prospectus
shall have been filed or mailed for filing with the Commission not later than
required pursuant to the rules and regulations of the Commission.
(b) BSABS shall have furnished to the Underwriter a certificate, dated
the Closing Date, of BSABS, signed by a vice president of BSABS, to the effect
that the signer of such certificate has carefully examined the Registration
Statement, the Prospectus and this Agreement and that:
(i) The representations and warranties of BSABS herein 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 BSABS has complied with all
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 and are pending or, to his knowledge, have been threatened as of
the Closing Date;
(iii) Nothing has come to the attention of such person that would lead
him to believe that the Prospectus (other than any Computational Materials
(as defined in the Indemnification Agreement) incorporated therein by
reference) contains any untrue statement of a material fact or omits to
state any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; and
(iv) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of BSABS from the date of the Prospectus to the Closing Date.
(c) The Seller shall have furnished to the Underwriter a certificate,
dated the Closing Date, of the Seller, signed by a vice president or an
assistant vice president of the Seller, to the effect that (i) the signer of
such certificate has carefully examined the Prospectus and nothing has come to
the attention of such person that would lead him to believe that the Prospectus
contains any untrue statement of a material fact with respect to the Seller or
the Mortgage Loans or omits to state any material fact with respect to the
Seller or the Mortgage Loans necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading and
(ii) the Seller has complied with all agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the Closing
Date under this Agreement and the Pooling and Servicing Agreement.
(d) Stroock & Stroock & Xxxxx LLP shall have furnished to the
Underwriter their written opinion, as special counsel to BSABS, addressed to the
Underwriter and dated the Closing Date, in form and substance satisfactory to
the Underwriter, to the effect that:
(1) BSABS has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware
and has all corporate power and authority necessary to own or hold its
properties and to conduct the business in which it is engaged and to
enter into and perform its obligations under this Agreement, the
Indemnification Agreement and the Pooling and Servicing Agreement, and
to cause the Certificates to be issued;
(2) To such counsel's knowledge, without independent
investigation, BSABS is not in violation of its certificate of
incorporation or by-laws or in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which BSABS is a party
or by which it or its properties may be bound, which default might
result in any material adverse changes in the financial condition,
earnings, affairs or business of BSABS or which might materially and
adversely affect the properties or assets, taken as a whole, of BSABS;
(3) This Agreement, the Indemnification Agreement and the Pooling
and Servicing Agreement have been duly authorized, executed and
delivered by BSABS and, assuming the due authorization, execution and
delivery of such agreements by the other parties thereto, such
agreements constitute valid and binding obligations, enforceable
against BSABS in accordance with their respective terms, subject as to
enforceability to (A) bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating
to creditors' rights generally, (B) general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity
or at law) and (C) with respect to rights of indemnity under the
Indemnification Agreement, limitations of public policy under
applicable securities laws.
(4) To such counsel's knowledge without independent
investigation, the execution, delivery and performance of this
Agreement, the Indemnification Agreement and the Pooling and Servicing
Agreement by BSABS, the consummation of the transactions contemplated
hereby and thereby, and the issuance and delivery of the Certificates
to such counsel's knowledge do not and will not conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument of which such counsel
has knowledge and to which BSABS is a party or by which BSABS is bound
or to which any of the property or assets of BSABS or any of its
subsidiaries is subject, which breach or violation would have a
material adverse effect on the business, operations or financial
condition of BSABS, nor will such actions result in a violation of the
provisions of the certificate of incorporation or by-laws of BSABS or
to such counsel's knowledge any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over BSABS or any of its properties or assets, which
breach or violation would have a material adverse effect on the
business, operations or financial condition of BSABS.
(5) The direction by BSABS to the Trustee to issue, authenticate
and deliver the Certificates has been duly authorized by BSABS and,
assuming that the Trustee has been duly authorized to do so, when
executed, authenticated and delivered by the Trustee in accordance
with the Pooling and Servicing Agreement, the Certificates will be
validly issued and outstanding and will be entitled to the benefits of
the Pooling and Servicing Agreement, subject to (A) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and (B)
general principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law).
(6) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body of
the United States is required for the issuance of the Certificates,
the sale of the Certificates to the Underwriter, or the consummation
by BSABS of the other transactions contemplated by this Agreement, the
Indemnification Agreement and the Pooling and Servicing Agreement,
except such consents, approvals, authorizations, registrations or
qualifications as may be required under the Act or state securities or
"blue sky" laws as to which no opinion has been requested or need be
given or as have been previously obtained.
(7) There are not, to such counsel's knowledge, without
independent investigation, any actions, proceedings or investigations
pending with respect to which BSABS has received service of process
before, or threatened by, any court, administrative agency or other
tribunal to which BSABS is a party or of which any of its properties
is the subject: (a) which, if determined adversely to BSABS, would
have a material adverse effect on the business, results of operations
or financial condition of BSABS; (b) which assert the invalidity of
the Pooling and Servicing Agreement or the Certificates; (c) seeking
to prevent the issuance of the Certificates or the consummation by
BSABS of any of the transactions contemplated by the Pooling and
Servicing Agreement, the Indemnification Agreement or this Agreement,
as the case may be; or (d) which might materially and adversely affect
the performance by BSABS of its obligations under, or the validity or
enforceability of, the Pooling and Servicing Agreement, the
Indemnification Agreement, this Agreement or the Certificates.
(8) The conditions to the use by BSABS of a registration
statement on Form S-3 under the Securities Act, as set forth in the
General Instructions to Form S-3, have been satisfied with respect to
the Registration Statement and the Prospectus.
(9) The Registration Statement and any amendments thereto have
become effective under the Securities Act; to the best of such
counsel's knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and not withdrawn and no
proceedings for that purpose have been instituted or threatened and
not terminated; and the Registration Statement, the Prospectus and
each amendment or supplement thereto, as of their respective effective
or issue dates (other than the financial and statistical information
contained therein, as to which such counsel need express no opinion),
complied as to form in all material respects with the applicable
requirements of the Securities Act and the rules and regulations of
the Commission.
(10) To the best of such counsel's knowledge, there are no
material contracts, indentures or other documents of a character
required to be described or referred to in the Registration Statement
or the Prospectus or to be filed as exhibits to the Registration
Statement other than those described or referred to therein or filed
or incorporated by reference as exhibits thereto.
(11) The statements set forth in the base prospectus included in
the Prospectus under the captions "Description of the Securities" and
"The Agreements" and in the Prospectus Supplement under the captions
"Description of the Certificates" to the extent such statements
purport to summarize certain provisions of the Certificates or of the
Pooling and Servicing Agreement are fair and accurate in all material
respects.
(12) The statements set forth in the base prospectus included in
the Prospectus under the captions "Material Federal Income Tax
Considerations" and "ERISA Considerations" and in the Prospectus
Supplement under the captions "Federal Income Tax Consequences" and
"ERISA Considerations," to the extent that they constitute matters of
federal law, provide a fair and accurate summary of such law or
conclusions.
(13) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended, and the
Trust Fund created by the Pooling and Servicing Agreement is not
required to be registered under the Investment Company Act of 1940, as
amended.
(14) BSABS is not an "investment company" or under the "control"
of an "investment company" as such terms are defined in the Investment
Company Act of 1940, as amended.
(15) Assuming timely REMIC elections are made and ongoing
compliance with the Pooling and Servicing Agreement, each of REMIC I,
REMIC II an REMIC III will constitute a real estate mortgage
investment conduit under Section 860D of the Code and each Class of
Certificates other than the Class R-1, Class R-2 and Class R-3
Certificates will be considered to be regular interests in a REMIC.
(16) Such counsel shall also have furnished to the Underwriter a
written statement, addressed to the Underwriter and dated the Closing
Date, in form and substance satisfactory to the Underwriter, to the
effect that no facts have come to the attention of such counsel which
lead them to believe that: (i) the Registration Statement, at the time
such Registration Statement became effective, contained an 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 (except as to financial or statistical data
contained in the Registration Statement); or (ii) the Prospectus, as
of its date and as of the Closing Date, contained or contains an
untrue statement of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading.
Such opinion may express its reliance as to factual matters on the
representations and warranties made by, and on certificates or other documents
furnished by officers of, the parties to this Agreement and the Pooling and
Servicing Agreement. Such opinion may be qualified as an opinion only on the
laws of the State of New York and the federal law of the United States. To the
extent that such firm relies upon the opinion of other counsel in rendering any
portion of its opinion, the opinion of such other counsel shall be attached to
and delivered with the opinion of such firm that is delivered to you.
(e) Internal counsel for EMC, as Seller and as EMC Master Servicer,
shall have furnished to the Underwriter a written opinion, addressed to the
Underwriter and BSABS and dated the Closing Date, in form and substance
satisfactory to the Underwriter, to the effect that:
(1) EMC Mortgage Corporation ("EMC") has been duly incorporated
and is validly existing as a corporation in good standing under the
laws of the State of Delaware.
(2) The Pooling and Servicing Agreement and the Indemnification
Agreement have each been duly authorized, executed and delivered by
EMC.
(3) No consent, approval or authorization of any New York or
federal governmental agency or body or, to the best of such counsel's
knowledge, any order or decree of any New York or federal court is
required for the consummation by EMC of the transactions contemplated
by the terms of the Pooling and Servicing Agreement and the
Indemnification Agreement except any such as may be required under the
"blue sky" or state securities laws of any jurisdiction in connection
with the offering, sale or acquisition of the Certificates, any
recordations of the assignment of the Mortgage Loans evidenced by the
Certificates to the Trustee (to the extent such recordations are
required pursuant to the Pooling and Servicing Agreement) that have
not yet been completed and any approvals as have been obtained.
(4) The consummation of any of the transactions contemplated by
the terms of the Pooling and Servicing Agreement and the
Indemnification Agreement do not conflict with or result in a breach
or violation of any material term or provision of, or constitute a
default under, the charter or by-laws of EMC, or, to the best of such
counsel's knowledge, any indenture or other agreement or instrument to
which EMC is a party or by which it is bound, any New York or federal
law, statute or regulation applicable to EMC or, to the best of such
counsel's knowledge, any order or decree of any New York or federal
court, regulatory body, administrative agency or governmental body
having jurisdiction over EMC.
(5) There are no legal or governmental actions, investigations or
proceedings pending to which EMC is a party, or, to the best of such
counsel's knowledge, threatened against EMC, (A) asserting the
invalidity of the Pooling and Servicing Agreement or the
Indemnification Agreement, or (B) which might materially and adversely
affect the performance by EMC of its obligations under, or the
validity or enforceability of the Pooling and Servicing Agreement or
the Indemnification Agreement .
For purposes of the foregoing, such counsel may state that it has not
regarded any legal or governmental actions, investigations or proceedings to be
"threatened" unless the potential litigant or governmental authority has
manifested to the legal department of the Seller a present intention to initiate
such proceedings.
Such opinion may express its reliance as to factual matters on the
representations and warranties made by, and on certificates or other documents
furnished by officers of, the parties to the Pooling and Servicing Agreement.
Such opinion may assume the due authorization, execution and delivery of the
instruments and documents referred to therein by the parties thereto other than
the Seller. Such opinion may be qualified as an opinion only on the laws of the
Incorporation State and the federal law of the United States.
(f) Stroock & Stroock & Xxxxx LLP, shall have furnished to the
Underwriter a written opinion, addressed to the Underwriter and BSABS and dated
the Closing Date, in form and substance satisfactory to the Underwriter, to the
effect that, assuming due authorization, execution and delivery by the
respective parties thereto, the Pooling and Servicing Agreement and the
Indemnification Agreement each constitutes a legal, valid and binding agreement
of EMC, enforceable against EMC in accordance with its terms, subject as to
enforceability to (A) bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to creditors' rights
generally, (B) general principles of equity (regardless of whether enforcement
is sought in a proceeding in equity or at law) and (C) with respect to rights of
indemnity under the Indemnification Agreement, limitations of public policy
under applicable securities laws.
(g) The Underwriter shall have received the one or more opinions of
counsel to the Trustee (one of whom may be in-house counsel), dated the Closing
Date, each addressed to the Underwriter, and each in form and scope satisfactory
to the Underwriter and counsel to the Underwriter, to the effect that:
(1) The Trustee is a national banking association validly
existing under the laws of the United States and has the power and
authority to enter into, and to take all action required of it under,
the Pooling and Servicing Agreement.
(2) The Pooling and Servicing Agreement has been duly authorized,
executed and delivered by the Trustee and, assuming due authorization,
execution and delivery thereof by the other parties thereto,
constitutes a valid and binding obligation of the Trustee, enforceable
against the Trustee in accordance with its terms, subject, as to
enforceability, to limitations of bankruptcy, insolvency, moratorium,
fraudulent conveyance and other laws relating to or affecting
creditors' rights generally and court decisions with respect thereto,
and to general principles of equity.
(3) The Certificates have been duly executed by the Trustee and
authenticated and delivered by the Trustee in accordance with the
terms of the Pooling and Servicing Agreement.
(4) The execution and delivery by the Trustee of the Pooling and
Servicing Agreement and the performance by the Trustee of its terms do
not conflict with or result in a violation of (A) any law or
regulation of the United States governing the banking or trust powers
of the Trustee or (B) the charter or by-laws of the Trustee.
(5) No approval, authorization, or other action by, or filing
with, any governmental authority having jurisdiction over the banking
or trust powers of the Trustee is required in connection with the
execution and delivery by the Trustee of the Pooling and Servicing
Agreement, or the performance by the Trustee of the transactions
contemplated by the Pooling and Servicing Agreement.
Such opinion may express its reliance as to factual matters on the
representations and warranties made by, and on certificates or other documents
furnished by officers of, the parties to the Pooling and Servicing Agreement.
Such opinion may assume the due authorization, execution and delivery of the
instruments and documents referred to therein by the parties thereto other than
the Trustee or its affiliates. Such opinion may be qualified as an opinion only
on the laws of the State of New York and the federal law of the United States.
To the extent that such counsel relies upon the opinion of other counsel in
rendering any portion of its opinion, the opinion of such other counsel shall be
attached to and delivered with the opinion of such counsel that is delivered to
the Underwriter.
(h) The Underwriter shall have received one or more opinions of
counsel (one of which may be from internal counsel) to Xxxxx Fargo, as Xxxxx
Fargo Master Servicer and as Securities Administrator, in form and substance
satisfactory to the Underwriter and counsel thereto.
(i) BSABS' independent accountants, Deloitte & Touche, shall have
furnished to the Underwriter a letter or letters addressed to the Underwriter
and dated as of or prior to the date of first use of the Prospectus Supplement
in the form and reflecting the performance of the procedures previously agreed
to by BSABS and the Underwriter.
(j) Subsequent to the date hereof, there shall not have occurred any
change, or any development involving a prospective change, in or affecting the
business or properties of BSABS which in your reasonable judgment materially
impairs the investment quality of the Certificates so as to make it impractical
or inadvisable to proceed with the public offering or the delivery of the
Certificates as contemplated by the Prospectus.
(k) The Public Certificates shall be rated not lower than the required
ratings set forth under the heading "Ratings" in the Prospectus Supplement, such
ratings shall not have been rescinded and no public announcement shall have been
made that any such required rating of the Certificates has been placed under
review (otherwise than for possible upgrading).
(l) The Underwriter shall have received copies of any opinions of
counsel to BSABS supplied to the securities rating agencies relating to certain
matters with respect to the Certificates. Any such opinions shall be dated the
Closing Date and addressed to the Underwriter or accompanied by reliance letters
addressed to the Underwriter.
(m) All Classes of Certificates being publicly offered by the
Underwriter shall have been issued and paid for pursuant to the terms of this
Agreement.
(n) BSABS shall have furnished to the Underwriter such further
information, certificates and documents as the Underwriter may reasonably have
requested, and all proceedings in connection with the transactions contemplated
by this Agreement and all documents incident hereto shall be in all material
respects reasonably satisfactory in form and substance to the Underwriter and
its counsel.
(o) The Indemnification Agreement and the Pricing Letter shall have
been executed and delivered.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Agreement, 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 BSABS in writing, or by telephone or telegraph
confirmed in writing.
7. TERMINATION. This Agreement shall be subject to termination in your
absolute discretion, by notice given to BSABS prior to delivery of and payment
for the Public Certificates, if prior to such time (i) trading in securities
generally on the New York Stock Exchange shall have been suspended or materially
limited, (ii) a general moratorium on commercial banking activities in New York
shall have been declared by either Federal or New York State authorities, or
(iii) there shall have occurred any material outbreak or escalation of
hostilities or other calamity or crisis the effect of which on the financial
markets is such as to make it, in your judgment after consultation with BSABS,
impracticable to market the Public Certificates on the terms specified in this
Agreement.
8. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective agreements,
representations, warranties, indemnities and other statements of BSABS and its
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 or BSABS, and will survive delivery of and payment
for the Public Certificates. The provisions of Section 5(d) and Section 9 hereof
shall survive the termination or cancellation of this Agreement.
9. REIMBURSEMENT OF UNDERWRITER EXPENSES. If for any reason, other than
default by the Underwriter in its obligation to purchase the Public Certificates
or termination by the Underwriter pursuant to Section 7 hereof, the Public
Certificates are not delivered by or on behalf of BSABS as provided herein,
BSABS will reimburse the Underwriter for all out-of-pocket expenses of the
Underwriter, including reasonable fees and disbursements of its counsel,
reasonably incurred by the Underwriter in making preparations for the purchase,
sale and delivery of the Public Certificates, but BSABS shall then be under no
further liability to the Underwriter with respect to the Public Certificates,
except as provided in Section 5(d) hereof.
10. SUCCESSORS. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and their respective
successors and assigns, and no other person will have any right or obligation
hereunder.
11. APPLICABLE LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK DISREGARDING PRINCIPLES OF
CONFLICT OF LAWS.
12. MISCELLANEOUS. Time shall be of the essence of this Agreement. This
Agreement supersedes all prior or contemporaneous agreements and understandings
relating to the subject matter hereof, other than the Indemnification Agreement
and the Pricing Letter. Neither this Agreement nor any term hereof may be
changed, waived, discharged or terminated except by a writing signed by the
party against whom enforcement of such change, waiver, discharge or termination
is sought. This Agreement may be signed in any number of counterparts, each of
which shall be deemed an original, which taken together shall constitute one and
the same instrument.
13. NOTICES. All communications hereunder shall be in writing and effective
only on receipt and, if sent to the Underwriter, shall be delivered to the
address specified on the signature page hereof; or if sent to BSABS, shall be
delivered to Bear Xxxxxxx Asset Backed Securities, Inc., 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx, 00000, attention of Chief Counsel.
* * *
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the undersigned a counterpart hereof, whereupon this
Agreement and your acceptance shall represent a binding agreement by and between
BSABS and the Underwriter on July 26, 2002 relating to Bear Xxxxxxx Asset Backed
Securities, Inc., Asset-Backed Certificates, Series 2002-2.
Very truly yours,
BEAR XXXXXXX ASSET BACKED SECURITIES, INC.
By: /s/ Xxxxx Xxxxxxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxxxxxx
Title: Vice President and Assistant
Secretary
The foregoing Agreement is
hereby confirmed and accepted.
BEAR, XXXXXXX & CO. INC.
By: /s/ Xxxxxx Xxxxxx
------------------------
Name: Xxxxxx Xxxxxx
Title: Senior Managing Director
Address: 000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
