Exhibit 1.1
UNDERWRITING AGREEMENT
Charlotte, North Carolina
March 25, 0000
Xxxx xx Xxxxxxx Securities LLC
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Xxxxxxx, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
EQCC Asset Backed Corporation (the "Seller" or the "Depositor"),
proposes to sell to the underwriters named in Schedule II hereto (collectively,
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the "Underwriters" and each, an "Underwriter"), the principal amount of the EQCC
Asset Backed Certificates, Series 2002-1, identified in Schedule I hereto (the
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"Underwritten Certificates"), to be issued under a trust agreement (the "Trust
Agreement") dated as of March 25, 2002, between the Seller, as depositor, and
The Bank of New York, as trustee (the "Trustee").
Each class of Underwritten Certificates listed in Schedule I hereto
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will represent an undivided beneficial ownership interest in EQCC Trust 2002-1
(the "Trust"). The assets of the Trust will include, among other things, those
certain EQCC Asset Backed Certificates, Series 2001-2, of the Classes and in
denominations corresponding with original principal balances as set forth below
(the "Underlying ABS"), issued by EQCC Trust 2001-2, pursuant to a pooling and
servicing agreement (the "Pooling and Servicing Agreement"), dated as of
December 1, 2001, among EQCC Receivables Corporation, as depositor ("EQCC
Receivables"), EquiCredit Corporation of America, as transferor (in such
capacity, the "Transferor") and as initial servicer (in such capacity, the
"Initial Servicer"), Fairbanks Capital Corp., as successor servicer (in such
capacity, the "Successor Servicer," and together with the Initial Servicer,
individually and collectively, the "Servicer"), and The Bank of New York, as
trustee (in such capacity, the "Underlying Trustee"):
Underlying ABS: EQCC Asset Backed Certificates, Series 2001-2
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Class Designation Original Principal Balance
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Class A-1 $1,997,030,001
Class A-2 $1,982,337,536
Class A-3 $1,055,259,012
Class A-4 $1,115,458,249
Class A-5 $ 851,977,837
This Underwriting Agreement shall hereinafter be referred to as the
"Agreement." This Agreement, the Trust Agreement, the Pooling and Servicing
Agreement, the Transfer Agreement and the Custodial Agreement are collectively
hereinafter referred to as the "Basic Documents."
Capitalized terms used herein and not otherwise defined shall have the
respective meanings ascribed thereto in the Trust Agreement or, if not defined
therein, in the Pooling and Servicing Agreement.
1. Representations and Warranties. The Seller represents and warrants
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to, and agrees with, each Underwriter that:
(a) Each of the Seller and EQCC Receivables Corporation (the
"Transferor") meets the requirements for 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 on such Form (the file number of which is set forth in
Schedule I hereto), which has become effective, for the registration
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under the Act of the Underwritten Certificates. Such registration
statement, as amended to the date of this Agreement, meets the
requirements set forth in Rule 415(a)(1) under the Act and complies in
all other material respects with said Rule. The Seller proposes to file
with the Commission pursuant to Rule 424 under the Act a supplement to
the form of prospectus included in such registration statement relating
to the Underwritten Certificates and the plan of distribution thereof
and has previously advised the Underwriters of all further information
(financial and other) with respect to the Seller and the Pool
Information (as defined in Section 8(f) below) to be set forth therein.
Such registration statement, including the exhibits thereto, as amended
to the date of this Agreement, is hereinafter called the "Registration
Statement"; such prospectus in the form in which it appears in the
Registration Statement is hereinafter called the "Basic Prospectus"; and
such supplemented form of prospectus, in the form in which it shall be
filed with the Commission pursuant to Rule 424 (including the Basic
Prospectus as so supplemented) is hereinafter called the "Final
Prospectus." Any reference herein to the Registration Statement, the
Basic Prospectus or the Final 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 of this
Agreement, or the issue date of the Basic Prospectus 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 or the Final Prospectus shall be deemed
to refer to and include the filing of any document under the Exchange
Act after the date of this Agreement, or the issue date of the Basic
Prospectus or the Final Prospectus, as the case may be, and deemed to be
incorporated therein by reference.
(b) As of the date hereof, when the Final Prospectus is first
filed pursuant to Rule 424 under the Act, when, prior to the Closing
Date (as hereinafter defined), any amendment to the Registration
Statement becomes effective (including the filing of any document
incorporated by reference in the Registration Statement), when any
supplement to the Final Prospectus is filed with the Commission and at
the Closing Date (as hereinafter defined), (i) the Registration
Statement, at its effective date and as amended as of any such time, and
the Final Prospectus, as amended or supplemented as of any such time,
comply and will comply in all material respects with the Act and the
respective rules thereunder, (ii) the Registration Statement, at its
effective date and as amended as of any such time, will not contain any
untrue statement of a material fact or
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omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading, and
(iii) the Final Prospectus, at its filing date and as amended or
supplemented as of any such time, 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 make the statements therein, in
light of the circumstances under which they were made, not misleading;
provided, however, that the Seller makes no representations or
warranties as to (A) the information contained in or omitted from the
Registration Statement or the Final Prospectus or any amendment thereof
or supplement thereto in reliance upon and in conformity with
information furnished in writing to the Seller by or on behalf of any
Underwriter specifically for use in connection with the preparation of
the Registration Statement and the Final Prospectus or (B) any Derived
Information contained in any Collateral Term Sheet, Structural Term
Sheet, Series Term Sheet or Computational Materials (each as defined in
Section 5(b) below).
(c) The Seller has been duly incorporated and is validly
existing as a corporation under the laws of the State of Delaware and is
in good standing as a foreign corporation in each jurisdiction in which
its ownership or lease of property or conduct of its business so
requires and has corporate and other power and authority to own its
properties and conduct its business, as now conducted by it, and to
enter into and perform its obligations under this Agreement and the
other Basic Documents.
(d) Since the respective dates as of which information is given
in the Prospectus, there has not been any material adverse change in the
general affairs, management, financial condition or results of
operations of the Seller or the Transferor, otherwise than as set forth
or contemplated in the Prospectus as supplemented or amended as of the
Closing Date.
(e) The Seller, to the best of its knowledge after due inquiry,
is not aware of (i) any request by the Commission for any further
amendment of the Registration Statement or the Basic Prospectus or for
any additional information or (ii) the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or
the initiation or threat by the Commission of any proceeding for that
purpose.
(f) This Agreement has been duly authorized, executed and
delivered by the Seller, and each of the other Basic Documents, when
delivered by the Seller, will have been duly authorized, executed and
delivered by the Seller, and will constitute a legal, valid and binding
agreement of the Seller, enforceable against the Seller in accordance
with its respective terms, subject, as to the enforcement of remedies,
to applicable bankruptcy, insolvency, reorganization, moratorium,
receivership and similar laws affecting creditors' rights generally and
to general principles of equity (regardless of whether the enforcement
of such remedies is considered in a proceeding in equity or at law), and
except as rights to indemnity and contribution hereunder may be limited
by federal or state securities laws or principles of public policy.
(g) The Underwritten Certificates have been duly authorized,
and, when the Underwritten Certificates are issued and delivered
pursuant to this Agreement with
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respect to such Underwritten Certificates, such Underwritten
Certificates will have been duly executed, authenticated, issued and
delivered and will be validly issued and legally outstanding entitled to
the benefits provided by the Trust Agreement, which will be
substantially in the form filed as an exhibit to the Registration
Statement;
(h) The issue and sale of the Underwritten Certificates and the
compliance by the Seller with all of the provisions of the Underwritten
Certificates, this Agreement and the Basic Documents, and the
consummation of the transactions herein and therein contemplated 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
to which the Seller is a party or by which the Seller is bound or to
which any of the property or assets of the Seller is subject, nor will
such action result in any violation of the provisions of the Certificate
of Incorporation or By-laws of the Seller or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Seller or any of its properties; and no consent,
approval, authorization, order, registration or qualification of or with
any such court or governmental agency or body is required for the issue
and sale of the Underwritten Certificates or the consummation by the
Seller of the transactions contemplated by this Agreement or the Trust
Agreement, except such as have been, or will have been prior to the
Closing Date, obtained under the Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under
state securities or Blue Sky laws in connection with the purchase and
distribution of the Underwritten Certificates by the Underwriters;
(i) Other than as set forth or contemplated in the Registration
Statement, there are no legal or governmental proceedings pending to
which the Seller or any of its subsidiaries is a party or of which any
property of the Seller or any of its subsidiaries is the subject which,
if determined adversely to the Seller or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on the
current or future consolidated financial position, stockholders' equity
or results of operations of the Seller and its subsidiaries; and, to the
best of the Seller's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(j) The Seller is not an "investment company"within the meaning
of such term under the Investment Company Act of 1940 (the "1940 Act")
and the rules and regulations of the Commission thereunder.
(k) At the time of execution and delivery of the Trust
Agreement, the Seller will: (i) have equitable title to the interest in
the Underlying ABS conveyed by the Seller, free and clear of any lien,
mortgage, pledge, charge, encumbrance, adverse claim or other security
interest (collectively, "Liens"); (ii) not have assigned to any person
any of its right, title or interest in the Underlying ABS; and (iii)
have the power and authority to sell its interest in the Underlying ABS
to the Trustee and to sell the Underwritten Certificates to the
Underwriters. Upon execution and delivery of the Trust Agreement by the
Trustee, the Trustee will have acquired legal and beneficial ownership
of all of the Seller's right, title and interest in and to the
Underlying ABS. Upon delivery to the
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Underwriters of the Underwritten Certificates, the Underwriters will
have good title to the Underwritten Certificates free of any Liens.
(l) As of the Cut-Off Date, each of the Underlying ABS will meet
the eligibility criteria described in the Prospectus and will confirm to
the descriptions thereof contained in the Prospectus.
(m) At the Closing Date, the Underlying ABS and the Trust
Agreement will conform in all material respects to the descriptions
thereof contained in the Prospectus.
(n) Any taxes, fees and other governmental charges in connection
with the execution, delivery and issuance of the Basic Documents and the
Underwritten Certificates have been paid or will be paid at or prior to
the Closing Date.
(o) Any certificate signed by an officer of the Seller and
delivered to the Underwriters or counsel to the Underwriters in
connection with the offering of the Underwritten Certificates shall be
deemed, and shall state that it is, a representation and warranty as to
the matters covered thereby to each person to whom the representations
and warranties in this Section 1 are made.
(p) As of the Closing Date, each of the respective
representations and warranties of the Transferor and EquiCredit
Corporation of America set forth in the Basic Documents will be true and
correct, except for representations and warranties as to statistical
characteristics of the Mortgage Loans, which were made only as of the
"Cut-off Date" specified in the Pooling and Servicing Agreement, and the
Underwriters may rely on such representations and warranties as if they
were set forth herein in full.
2. Purchase and Sale. Subject to the terms and conditions and in
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reliance upon the representations and warranties herein set forth, the Seller
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Seller, at the purchase price set forth in
Schedule II hereto, the principal amount or percentage interest of the
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Underwritten Certificates set forth opposite such Underwriter's name therein.
3. Delivery and Payment. Delivery of and payment for the Underwritten
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Certificates shall be made at the office, on the date and at the time specified
in Schedule I hereto, which date and time may be postponed by agreement between
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the Underwriters and the Seller or as provided in Section 9 hereof (such date
and time of delivery and payment for the Underwritten Certificates being herein
called the "Closing Date"). Delivery of the Underwritten Certificates shall be
made to the Underwriters for their respective accounts against payment by the
several Underwriters of the purchase price thereof in the manner set forth in
Schedule II hereto. If Schedule I indicates that the Underwritten Certificates
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are to be issued in book-entry form, delivery of the Underwritten Certificates
shall be made through the facilities of the depository or depositories set forth
on Schedule I. Alternatively, certificates for the Underwritten Certificates
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shall be registered in such names and in such denominations as the Underwriters
may request not less than three full business days in advance of the Closing
Date.
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The Seller agrees to have the Underwritten Certificates
available for inspection, checking and packaging by the Underwriters in
Charlotte, North Carolina, not later than 1:00 p.m., Charlotte, North Carolina
time, on the business day prior to the Closing Date.
4. Offering by the Underwriters. It is understood that the Underwriters
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propose to offer the Underwritten Certificates for sale to the public (which may
include selected dealers) as set forth in the Prospectus.
5. Agreements. The Seller agrees with the several Underwriters that:
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(a) Prior to the termination of the offering of the Underwritten
Certificates, the Seller will not file any amendment of the Registration
Statement or supplement (including the Final Prospectus) to the Basic
Prospectus unless the Seller has furnished to each Underwriter a copy
for review prior to filing and will not file any such proposed amendment
or supplement to which each Underwriter reasonably objects after
reasonable notice thereof. Subject to the foregoing sentence, the Seller
will cause the Final Prospectus to be filed with the Commission in a
timely manner pursuant to Rule 424. The Seller will advise the
Underwriters promptly (i) when the Final Prospectus shall have been
filed with the Commission pursuant to Rule 424, (ii) when any amendment
to the Registration Statement relating to the Underwritten Certificates
shall have become effective, (iii) of any request by the Commission for
any amendment of the Registration Statement or amendment of or
supplement to the Final Prospectus or for any additional information,
(iv) 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 (v) of the receipt by
the Seller of any notification with respect to the suspension of the
qualification of the Underwritten Certificates for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Seller will use its best efforts to prevent the issuance of
any such stop order or suspension of qualification and, if issued, to
obtain as soon as possible the withdrawal thereof.
(b) The Seller will cause any Computational Materials,
Collateral Term Sheets and ABS Term Sheets (each as defined in Section
10 below) with respect to the Underwritten Certificates which are
delivered by the Underwriters to the Seller pursuant to Section 10 to be
filed with the Commission on a Current Report on Form 8-K (the "Current
Report") pursuant to Rule 13a-11 under the Exchange Act not later than
the business day immediately following the day on which such
Computational Materials, Collateral Term Sheets or ABS Term Sheets are
delivered to counsel for the Seller by the Underwriters as provided in
Section 10, and will promptly advise the Underwriters when such Current
Report has been so filed. Such Current Report shall be incorporated by
reference in the Final Prospectus and the Registration Statement.
Notwithstanding the two preceding sentences, the Seller shall have no
obligation to file materials provided by the Underwriters pursuant to
Section 10 at its own cost which, in the reasonable determination of the
Seller after making reasonable efforts to consult with the Underwriters,
are not required to be filed pursuant to the No-Action Letters (as
defined in Section 10 below), or which contain erroneous information or
contain any untrue statement of a material fact or, which, when read in
conjunction with the Final Prospectus, omit to state a material fact
required to be stated therein or necessary to make
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the statements therein not misleading; it being understood, however,
that the Seller shall have no obligation to review or pass upon the
accuracy or adequacy of, or to correct, any Computational Materials,
Collateral Term Sheets or ABS Term Sheets provided by the Underwriters
to the Seller pursuant to Section 10 hereof.
(c) If, at any time when a prospectus relating to the
Underwritten Certificates is required to be delivered under the Act, any
event occurs as a result of which the Final Prospectus as then amended
or supplemented would include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, or if it shall be necessary to amend or supplement the Final
Prospectus to comply with the Act or the Exchange Act or the respective
rules thereunder, the Seller promptly will prepare and file with the
Commission, subject to the first sentence of paragraph (a) of this
Section 5, an amendment or supplement which will correct such statement
or omission or an amendment which will effect such compliance and will
use its best efforts to cause any required post-effective amendment to
the Registration Statement containing such amendment to be made
effective as soon as possible and to notify the Underwriters thereof and
prepare and furnish without charge to each Underwriter and to any dealer
in securities as many electronic and written copies as the Underwriters
may from time to time reasonably request of an amended Final Prospectus
or a supplement to the Final Prospectus which will correct such
statement or omission or effect such compliance;
(d) The Seller will furnish to the Underwriters and counsel for
the Underwriters, without charge, executed copies of the Registration
Statement (including exhibits thereto) and each amendment thereto which
shall become effective on or prior to the Closing Date and, so long as
delivery of a prospectus by an Underwriter or dealer may be required by
the Act, as many written and electronic copies of the Final Prospectus
and any amendments thereof and supplements thereto (other than exhibits
to the related Current Report) as the Underwriters may reasonably
request. The Seller will pay the expenses incident to the performance of
its obligations under this Agreement, including (1) the printing and
filing of all documents relating to the offering (including the
Registration Statement and the Prospectus), (ii) the preparation,
issuance and delivery of Underwritten Certificates to the Underwriters,
(iii) fees and disbursements of the Seller's counsel and accountants,
(iv) the qualification of the Underwritten Certificates under state
securities laws, including filing fees and the fees and disbursements of
counsel for the Underwriters in connection therewith and in connection
with the preparation of any blue sky or legal investment survey, if any,
(v) any fees charged by rating agencies for the rating of the
Underwritten Certificates, (vi) the fees and disbursements of the
Trustee and its counsel (except ongoing fees to be paid pursuant to the
Trust Agreement), and (vii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise
specifically provided for in this section, provided that (i) the
Underwriters will pay all of their own costs and expenses, including the
fees of their counsel and any advertising expenses in connection with
offers they may make, and (ii) Banc of America Securities LLC will pay
any additional expenses incurred in connection with the requirement of
delivery of a market-making prospectus.
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(e) The Seller will take all actions which are reasonably
necessary to arrange for the qualification of the Underwritten
Certificates for sale under the laws of such jurisdictions as the
Underwriters reasonably may designate and to maintain such
qualifications in effect so long as required for the distribution of the
Underwritten Certificates; provided, however, that the Seller 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 where it is
not now so subject.
(f) The Seller will make generally available to its
securityholders as soon as practicable, but in any event not later than
eighteen months after the effective date of the Registration Statement
(as defined in Rule 158 (c) under the Act, an earnings statement of the
Seller and its subsidiaries (which need not be audited) complying with
Section 11(a) of the Act and the rules and regulations thereunder
(including, at the option of the Seller, Rule 158).
6. Conditions to the Obligations of the Underwriters. The obligations of
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the Underwriters to purchase the Underwritten Certificates shall be subject to
the accuracy of the representations and warranties on the part of the Seller
contained herein as of the date hereof, as of the date of the effectiveness of
any amendment to the Registration Statement filed prior to the Closing Date
(including the filing of any document incorporated by reference therein) and as
of the Closing Date, to the accuracy of the statements of the Seller made in any
certificates delivered pursuant to the provisions hereof, to the performance by
the Seller of its obligations hereunder and to the following additional
conditions:
(a) The Underwriters shall have received from
PriceWaterhouseCoopers, LLP (i) a letter, dated the date hereof,
confirming that they are independent public accountants within the
meaning of the Act and the Rules and Regulations and otherwise in form
and substance reasonably satisfactory to the Underwriters and counsel to
the Underwriters and (ii) a letter dated the Closing Date, updating the
letters referred to in clause (i) above, in form and substance
reasonably satisfactory to the Underwriters and counsel for the
Underwriters.
(b) All actions required to be taken and all filings required to
be made by the Seller under the Act prior to the sale of the
Underwritten Certificates shall have been duly taken or made. At and
prior to the Closing Date, 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, to the knowledge of the
Seller, shall be contemplated by the Commission, and all requests for
additional information on the part of the Commission shall have been
complied with to the Underwriters' reasonable satisfaction.
(c) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development
involving a prospective change, in or affecting particularly the
business or properties of the Seller, the Transferor, the Servicer or
the Insurer which, in the judgment of the Underwriters, materially
impairs the investment quality of the Underwritten Certificates; (ii)
any downgrading in the rating of
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the securities of the Seller, the Transferor, Bank of America or the
Insurer by any "nationally recognized statistical rating organization"
(as such term is defined for purposes of Rule 436(g) under the Act), or
any public announcement that any such organization has under
surveillance or review its rating of any securities of the Seller, the
Transferor, Bank of America or the Insurer (other than an announcement
with positive implications of a possible upgrading, and no implication
of a possible downgrading, of such rating); (iii) any suspension or
limitation of trading in securities generally on the American Stock
Exchange or New York Stock Exchange, or any setting of minimum prices
for trading on such exchange; (iv) any banking moratorium declared by
federal, New York or North Carolina authorities or a material disruption
in commercial banking or securities settlement or clearance services in
the United States or elsewhere; or (v) any outbreak or escalation of
major hostilities in which the United States is involved, any
declaration of war by Congress or any other substantial national or
international calamity or emergency if, in the judgment of the
Underwriters, the effects of any such outbreak, escalation, declaration,
calamity or emergency makes it impractical or inadvisable to proceed
with completion of the sale of and payment for the Underwritten
Certificates.
(d) The Underwriters, unless otherwise agreed to by them, shall
have received a favorable opinion of Hunton & Xxxxxxxx, counsel to the
Seller, addressed to the Underwriters, dated the Closing Date in form
and substance reasonably satisfactory to the Underwriters and their
counsel.
Such counsel will also deliver to the Underwriters a reliance
letter relating to such opinion rendered to the Rating Agencies.
With respect to the opinion of Hunton & Xxxxxxxx, insofar as
such opinions involve matters of law of any jurisdiction other than the
State of New York, the State of North Carolina, the General Corporation
Law of the State of Delaware or the United States of America, such
opinions may be given in reliance upon an opinion of counsel in such
jurisdiction reasonably acceptable to the Underwriters, a copy of which
shall be delivered to the Underwriters.
(e) The Underwriters shall have received a favorable opinion of
Hunton & Xxxxxxxx, special tax counsel for the Seller, addressed to the
Underwriters and dated the Closing Date and reasonably satisfactory in
form and substance to the Underwriters, generally to the effect that (i)
the information in the Prospectus under "Federal Income Tax
Consequences" and in the Prospectus Supplement under "Summary
Information - Federal Income Tax Consequences" and "Federal Income Tax
Consequences," insofar as such information describes federal statutes
and regulations or otherwise constitute matters of law or legal
conclusions of the statutes or regulations of such jurisdiction have
been prepared or reviewed by such counsel, and such information is
correct in all material respects; and (ii) assuming compliance with all
of the provisions of the Pooling and Servicing Agreement and the Trust
Agreement, the Trust Fund will qualify as a REMIC pursuant to Section
860D of the Internal Revenue Code of 1986 (the "Code") for federal
income tax purposes as of the Closing Date and will continue to qualify
as a REMIC for so long as the Trust Fund continues to meet the
requirements set forth in the Code and applicable treasury regulations.
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(f) The Underwriters shall have received a favorable opinion of
Hunton & Xxxxxxxx, special counsel for the Seller, addressed to the
Underwriters and dated the Closing Date and reasonably satisfactory in
form and substance to the Underwriters, with respect to the validity of
the Certificates, ERISA matters and such other related matters as the
Underwriters shall require, and the Seller shall have furnished or
caused to be furnished to such counsel such documents as such counsel
may reasonably request for the purpose of enabling such counsel to pass
upon such matters.
(g) [Reserved]
(h) The Underwriters shall have received an opinion addressed to
the Underwriters of counsel for the Trustee, dated the Closing Date and
reasonably satisfactory in form and substance to the Underwriters and
counsel for the Underwriters, substantially to the effect that:
(i) The Trustee has been duly organized and is validly
existing and in good standing as a national banking association
under the laws of the United States of America.
(ii) The Trustee has full power and authority to
execute, deliver and perform its duties under the Trust
Agreement and has duly executed and delivered the Trust
Agreement and, assuming due authorization, execution and
delivery thereof by the other parties thereto, the Trust
Agreement constitute the legal, valid and binding obligations
of the Trustee enforceable against the Trustee in accordance
with their terms, except as enforcement thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or other
laws relating to or affecting enforcement of creditors' rights
generally.
(iii) The Certificates have been duly executed,
authenticated and delivered by the Trustee.
(iv) No approval, authorization or other action by, or
filing with, any governmental authority of the United States of
America or the State of New York having jurisdiction over the
trust powers of the Trustee is required in connection with the
execution and delivery by the Trustee of the Trust Agreement or
the performance by the Trustee of its duties thereunder except
such as have been obtained, taken or made.
(i) [Reserved]
(j) The Underwriters shall have received a certificate dated the
Closing Date of the President, any Vice President or the Secretary of
the Seller (and, in the case of clause (i) below, the Transferor) in
which such officer shall state that, to the best of his knowledge after
reasonable investigation, (i) the representations and warranties of the
Seller or the Transferor with respect to the Mortgage Loans and the
Underlying ABS contained in any Basic Document are true and correct,
(ii) the representations and warranties of the Seller in this Agreement
are true and correct, (iii) the Seller has complied with all agreements
and satisfied all conditions on its part to be performed or
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satisfied hereunder at or prior to the Closing Date, (iv) no stop order
suspending the effectiveness of the Registration Statement has been
issued, (v) no proceedings for that purpose have been instituted or are
contemplated by the Commission, and (vi) there has been no amendment or
other document filed affecting the Certificate of Incorporation of the
Seller since August 29, 2001, or to the bylaws of the Seller since March
1, 1998, and no such amendment has been authorized.
(k) On or before the Closing Date, the Underwriters shall have
received evidence satisfactory to the Underwriters that each class of
Underwritten Certificates has been given the ratings set forth on
Schedule I hereto.
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(l) At the Closing Date, the Underwritten Certificates and the
Trust Agreement will conform in all material respects to the
descriptions thereof contained in the Prospectus.
(m) The Underwriters shall not have discovered and disclosed to
the Seller on or prior to the Closing Date that the Registration
Statement or the Prospectus or any amendment or supplement thereto
contains an untrue statement of a fact or omits to state a fact which,
in the opinion of Stroock & Stroock & Xxxxx, LLP, counsel to the
Underwriters, is material and is required to be stated therein or is
necessary to make the statements therein not misleading.
(n) All corporate proceedings and other legal matters relating
to the authorization, form and validity of this Agreement, the Trust
Agreement, the Underwritten Certificates, the Registration Statement and
the Prospectus, and all other legal matters relating to this Agreement
and the transactions contemplated hereby, shall be reasonably
satisfactory in all respects to counsel for the Underwriters, and the
Seller shall have furnished to such counsel all documents and
information that such counsel may reasonably request to enable such
counsel to pass upon such matters.
(o) [Reserved].
(p) At the Closing Date, the Underwriters shall have received
from Stroock & Stroock & Xxxxx, LLP, counsel to the Underwriters, a
letter with respect to the Prospectus, in form and substance
satisfactory to the Underwriters. The Seller will provide or cause to be
provided to the Underwriters such conformed copies of such opinions,
certificates, letters and documents as the Underwriters may reasonably
request.
All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Agreement shall be deemed to be in compliance with
the provisions hereof only if they are in form and substance reasonably
satisfactory to counsel for the Underwriters.
If any condition specified in this Section 6 shall not have
been fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Underwriters by notice to the Seller at any time at or prior
to the Closing Date, and such termination shall be without liability of any
party to any other party except as provided in Sections 7 and 8 hereof.
-11-
7. Reimbursement of Underwriters' Expenses. If the sale of the
---------------------------------------
Underwritten Certificates provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth in Section 6 hereof
is not satisfied or because of any refusal, inability or failure on the part of
the Seller to perform any agreement herein or comply with any provision hereof
other than by reason of a default by any of the Underwriters, the Seller will
reimburse the Underwriters severally upon demand for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
reasonably incurred by them in connection with the proposed purchase and sale of
the Underwritten Certificates.
8. Indemnification and Contribution.
--------------------------------
(a) The Seller agrees to indemnify and hold harmless each
Underwriter and each person who controls any 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 for the registration of the Underwritten
Certificates as originally filed or in any amendment thereof, or in the
Basic Prospectus or the Final Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon omission or
alleged omission to state therein 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, and agrees to
reimburse each such indemnified party 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) the Seller will not 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 therein (A) in reliance upon and in
conformity with written information furnished to the Seller by or on
behalf of any Underwriter specifically for use in connection with the
preparation thereof or (B) in any Derived Information furnished to the
Seller by any Underwriter in writing or by electronic transmission,
except to the extent that any untrue statement or alleged untrue
statement therein results (or is alleged to have resulted) directly from
an error (a "Collateral Error") in the Pool Information furnished by the
Seller to any Underwriter in writing or by electronic transmission,
which information was used by any Underwriter in the preparation of any
Computational Materials, Collateral Term Sheets or ABS Term Sheets
included in such Current Report (or amendment or supplement thereof) and
(ii) such indemnity with respect to any Collateral Error shall not inure
to the benefit of any Underwriter (or any person controlling any
Underwriter) from whom the person asserting any loss, claim, damage or
liability received any Computational Materials, Collateral Term Sheets
or ABS Term Sheets that were prepared on the basis of such Collateral
Error, if the Seller notified such Underwriter in writing of the
Collateral Error or provided in written or electronic form information
superseding or correcting such Collateral Error (in any such case, a
"Corrected Collateral Error") in sufficient time prior to the
confirmation of the sale of the Underwritten Certificates to such person
to permit the Underwriters to prepare and deliver corrected
Computational
-12-
Materials, Collateral Term Sheets and/or ABS Term Sheets, as the case
may be, and such Underwriter failed to notify such person thereof or to
deliver such person corrected Computational Materials, Collateral Term
Sheets and/or ABS Term Sheets, as applicable. This indemnity agreement
will be in addition to any liability which the Seller otherwise may
have.
(b) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless the Seller, each of its directors, each of
its officers who signs the Registration Statement, and each person who
controls the Seller within the meaning of either the Act or the Exchange
Act, to the same extent as the foregoing indemnity from the Seller to
each Underwriter, but only with reference to (A) written information
relating to such Underwriter furnished to the Seller by or on behalf of
such Underwriter specifically for use in the preparation of the
Registration Statement or Prospectus, and any amendment or supplement
thereto in the foregoing indemnity, or (B) any Derived Information
furnished to the Seller by such Underwriter pursuant to Section 10 and
incorporated by reference in the Registration Statement or the Final
Prospectus (except that no such indemnity shall be available for any
losses, claims, damages or liabilities, or actions in respect thereof
resulting from any Collateral Error). This indemnity agreement will be
in addition to any liability which any Underwriter otherwise may have.
The Seller acknowledges that the statements set forth in the Final
Prospectus (i) in the first two sentences of the second paragraph of
text under the caption "Plan of Distribution," concerning the terms of
the offering by the Underwriters, (ii) in the first sentence of the
third paragraph of text under the caption "Plan of Distribution,"
concerning market making by the Underwriters, and (iii) solely in the
case of Banc of America Securities LLC, in the fourth paragraph of text
under the caption "Plan of Distribution," concerning market making by
such Underwriter, constitute the only information furnished in writing
by or on behalf of the several Underwriters for inclusion in the
documents referred to in the foregoing indemnity (other than any Derived
Information in any Computational Materials, Collateral Term Sheets or
ABS Term Sheets furnished to the Seller by any Underwriter).
(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 (a) or (b), 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
participate therein, and, to the extent that it may elect by written
notice delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party;
provided, however, that if the defendants in any such action include
both the indemnified party and the indemnifying party and the
indemnified party 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 assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified
-13-
party or parties. Upon receipt of notice from the indemnifying party to
such indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of 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 connection
with the assertion of legal defenses in accordance with the proviso to
the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (in addition to local counsel), approved by the
Underwriters in the case of subparagraph (a), representing the
indemnified parties under subparagraph (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, or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of the
indemnifying party; 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). No indemnifying party shall,
without the written consent of the indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of
which indemnification or contribution may be sought hereunder (whether
or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to
therein, the Seller and the Underwriters 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 the Seller and one or more of the Underwriters
may be subject, as follows:
(i) in the case of any losses, claims, damages and
liabilities (or actions in respect thereof) which do not arise
out of or are not based upon any untrue statement or omission
of a material fact in any Derived Information, in such
proportion so that the Underwriters are 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 Underwritten Certificates specified in Schedule II
-----------
hereto and the Seller is responsible for the balance; provided,
however, that in no case shall any Underwriter (except as may
be provided in any agreement among underwriters relating to the
offering of the Underwritten Certificates) be responsible under
this subparagraph (i) for any amount in excess of the
underwriting discount applicable to the Underwritten
Certificates purchased by such Underwriter hereunder; and
-14-
(ii) in the case of any losses, claims, damages and
liabilities (or actions in respect thereof) which arise out of
or are based upon any untrue statement or omission of a
material fact in any Derived Information, in such proportion as
is appropriate to reflect the relative fault of the Seller on
the one hand and the Underwriters on the other in connection
with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof)
as well as any other relevant equitable considerations. The
relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a
material fact in such Computational Materials, Collateral Term
Sheets or ABS Term Sheets results from information prepared by
the Seller on the one hand or the Underwriters on the other and
the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or
omission. The amount paid or payable by an indemnified party as
a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to in the above subsection
(d) shall be deemed to include any reasonable legal or other
expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or
claim.
The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof)
referred to in this subsection (d) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding anything to the contrary in this paragraph (d), 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 an Underwriter
within the meaning of either the Act or the Exchange Act shall have the
same rights to contribution as such Underwriter, and each person who
controls the Seller within the meaning of either the Act or the Exchange
Act, each officer of the Seller who shall have signed the Registration
Statement and each director of the Seller shall have the same rights to
contribution as the Seller, subject in each case to the preceding
sentence of this paragraph (d). The obligations of the Underwriters of
Underwritten Certificates in this subsection (d) to contribute are
several in proportion to their respective underwriting obligations with
respect to such Underwritten Certificates and not joint.
(e) For purposes hereof, as to each Underwriter, the term
"Derived Information" means such information, if any, in the Series Term
Sheets, Collateral Term Sheets, Structural Term Sheets and/or
Computational Materials that is not (i) contained in the Prospectus
taking into account information incorporated therein by reference (other
than information incorporated by reference from the Series Term Sheets,
Collateral Terms Sheets, Structural Terms Sheets and/or Computational
Materials) or (ii) Pool Information, except to the extent that any
omission or alleged omission in Derived Information result from a
Collateral Error.
(f) As used herein, "Pool Information" means information with
respect to the characteristics of the Underlying ABS and the Mortgage
Loans backing the Underlying
-15-
ABS, and administrative and servicing fees, as provided by or on behalf
of the Depositor to the Underwriter in final form and set forth in the
Prospectus Supplement.
9. Default by an Underwriter. If any one or more Underwriters shall fail
-------------------------
to purchase and pay for any of the Underwritten Certificates agreed to be
purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the amount
of Underwritten Certificates set forth opposite their names in Schedule II
-----------
hereto bear to the aggregate amount of Underwritten Certificates set forth
opposite the names of all the remaining Underwriters) the Underwritten
Certificates which the defaulting Underwriter or Underwriters agreed but failed
to purchase; provided, however, that in the event that the aggregate amount of
Underwritten Certificates which the defaulting Underwriter or Underwriters
agreed but failed to purchase shall exceed 10% of the aggregate amount of
Underwritten Certificates set forth in Schedule II hereto, the remaining
-----------
Underwriter(s) shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Underwritten Certificates, and if such
nondefaulting Underwriter(s) do not purchase all the Underwritten Certificates,
this Agreement will terminate without liability to any nondefaulting Underwriter
or the Seller. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
seven days, as the Underwriters shall determine in order that the required
changes in the Registration Statement and the Final Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to the Seller
and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
10. Computational Materials and ABS Term Sheets.
-------------------------------------------
(a) Not later than 10:30 a.m., Charlotte, North Carolina time,
on a date no later than four business days before delivery of the Final
Prospectus to the Underwriters, the Underwriters shall deliver to the Seller
five complete copies of all materials provided by the Underwriters to
prospective investors in the Underwritten Certificates which constitute either
(i) "Computational Materials" within the meaning of the no-action letter dated
May 20, 1994 issued by the Division of Corporation Finance of the Commission to
Xxxxxx, Xxxxxxx Acceptance Corporation I, Xxxxxx, Peabody & Co. Incorporated,
and Xxxxxx Structured Asset Corporation and the no-action letter dated May 27,
1994 issued by the Division of Corporation Finance of the Commission to the
Public Securities Association (together, the "Xxxxxx Letters") or (ii) "ABS Term
Sheets" within the meaning of the no-action letter dated February 17, 1995
issued by the Division of Corporation Finance of the Commission to the Public
Securities Association (the "PSA Letter" and together with the Xxxxxx Letters,
the "No-Action Letters"), if the filing of such materials with the Commission is
a condition of the relief granted in such letters. In the case of any such
materials that constitute "Collateral Term Sheets" within the meaning of the PSA
Letter, if such Collateral Term Sheets have not previously been delivered to the
Seller as contemplated by Section 10(b)(i) below, five complete copies of such
Collateral Term Sheets shall be delivered by the Underwriters to the Seller no
later than 10:30 a.m., Charlotte, North Carolina time, on the first business day
following the date on which such Collateral Term Sheets were initially provided
to a potential investor.
-16-
Each delivery of Computational Materials, Collateral Term Sheets and/or
ABS Term Sheets to the Seller pursuant to this paragraph (a) shall be
effected by delivering four copies of such materials to counsel for the
Seller on behalf of the Seller at the address specified in Section 13
hereof and one copy of such materials to the Seller.
(b) Each Underwriter represents and warrants to and agrees with
the Seller, as of the date hereof and as of the Closing Date, that as to
itself:
(i) if an Underwriter has provided any Collateral Term
Sheets to potential investors in the Underwritten Certificates
prior to the date hereof and if the filing of such materials
with the Commission is a condition of the relief granted in the
PSA Letter, then in each such case such Underwriter delivered
four copies of such materials to counsel for the Seller on
behalf of the Seller at the address specified in Section 13
hereof and one copy of such materials to the Seller no later
than 10:30 a.m., Charlotte, North Carolina time, on the first
business day following the date on which such materials were
initially provided to a potential investor;
(ii) the Computational Materials (either in original,
aggregated or consolidated form), Collateral Term Sheets and
ABS Term Sheets furnished to the Seller pursuant to Section
10(a) or as contemplated in Section 10(b)(i) constitute all of
the materials furnished to prospective investors by the
Underwriters (whether in written, electronic or other format)
prior to the time of delivery thereof to the Seller with
respect to the Underwritten Certificates in accordance with the
No-Action Letters, and such Computational Materials, Collateral
Term Sheets and ABS Term Sheets comply with the requirements of
the No-Action Letters;
(iii) except as resulting directly from any Collateral
Error, on the respective dates any such Computational
Materials, Collateral Term Sheets and/or ABS Term Sheets with
respect to the Underwritten Certificates were last furnished to
each prospective investor and on the Closing Date, the Derived
Information in such Computational Materials, Collateral Term
Sheets and/or ABS Term Sheets did not and will not include any
untrue statement of a material fact, or, when read in
conjunction with the Final Prospectus, omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading;
(iv) all Computational Materials, Collateral Term Sheets
and ABS Term Sheets contained and will contain a legend,
prominently displayed on the first page thereof, to the effect
that the Seller has not prepared, reviewed or participated in
the preparation of such Computational Materials, Collateral
Term Sheets or ABS Term Sheets, is not responsible for the
accuracy thereof and has not authorized the dissemination
thereof;
(v) all Collateral Term Sheets with respect to the
Underwritten Certificates furnished to potential investors
contained and will contain a legend,
-17-
prominently displayed on the first page thereof, indicating
that the information contained therein will be superseded by
the description of the Mortgage Loans contained in the Final
Prospectus and, except in the case of the initial Collateral
Term Sheet, that such information supersedes the information in
all prior Collateral Term Sheets; and
(vi) on and after the date hereof, the Underwriters
shall not deliver or authorize the delivery of any
Computational Materials, Collateral Term Sheets, ABS Term
Sheets or other materials relating to the Underwritten
Certificates (whether in written, electronic or other format)
to any potential investor unless such potential investor has
received a Final Prospectus prior to or at the same time as the
delivery of such Computational Materials, Collateral Term
Sheets, ABS Term Sheets or other materials.
Notwithstanding the foregoing, the Underwriters make no representation
or warranty as to whether the Derived Information in any Computational
Materials, Collateral Term Sheets or ABS Term Sheets included or will include
any untrue statement resulting directly from any Collateral Error (except any
Corrected Collateral Error, with respect to materials prepared after the receipt
by the Underwriters from the Seller of notice of such Corrected Collateral Error
or materials superseding or correcting such Collateral Error).
(c) The Underwriters acknowledge and agree that the Seller has
not authorized and will not authorize the distribution of any
Computational Materials, Collateral Term Sheets or ABS Term Sheets to
any prospective investor, and agree that any Computational Materials,
Collateral Term Sheets or ABS Term Sheets with respect to the
Underwritten Certificates furnished to prospective investors shall
include a disclaimer in the form set forth in paragraph (b)(v) above.
The Underwriters agree that they will not represent to investors that
any Computational Materials, Collateral Term Sheets and/or ABS Term
Sheets were prepared or disseminated on behalf of the Seller.
(d) If, at any time when a prospectus relating to the
Underwritten Certificates is required to be delivered under the Act, it
shall be necessary to amend or supplement the Final Prospectus as a
result of an untrue statement of a material fact contained in the
Derived Information in any Computational Materials, Collateral Term
Sheets or ABS Term Sheets provided by the Underwriters pursuant to this
Section 10 or the omission to state therein a material fact required,
when considered in conjunction with the Final Prospectus, to be stated
therein or necessary to make the statements therein, when read in
conjunction with the Final Prospectus, not misleading, the Underwriters,
at their expense, promptly will prepare and furnish to the Seller for
filing with the Commission an amendment or supplement to such
Computational Materials, Collateral Term Sheets or ABS Term Sheets, as
the case may be, which will correct such statement or omission or an
amendment which will effect such compliance. The Underwriters, severally
and not jointly, represent and warrant to the Seller, as of the date of
delivery of such amendment or supplement to the Seller, that the Derived
Information in such amendment or supplement will not include any untrue
statement of a material fact or, when read in conjunction with the Final
Prospectus, omit to state a material fact necessary to make the
statements therein not misleading. The Seller shall have no obligation
to file such
-18-
amendment or supplement if the Seller determines that (i) such amendment
or supplement contains any untrue statement of a material fact or, when
read in conjunction with the Final Prospectus, omits to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; it being understood, however, that the Seller
shall have no obligation to review or pass upon the accuracy or adequacy
of, or to correct, any such amendment or supplement provided by the
Underwriters to the Seller pursuant to this paragraph (d) or (ii) such
filing is not required under the Act.
(e) Each Underwriter (at its own expense) further agrees to
provide to the Seller any accountants' letters obtained relating to the
Computational Materials, Collateral Term Sheets and/or ABS Term Sheets,
which accountants' letters shall be addressed to the Seller or shall
state that the Seller may rely thereon; provided that the Underwriters
shall have no obligation to procure such letter.
11. Termination. This Agreement shall be subject to termination in the
-----------
absolute discretion of the Underwriters, by notice given to the Seller prior to
delivery of and payment for the Underwritten 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 by Federal
authorities or (iii) there shall have occurred any outbreak or material
escalation of hostilities 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 reasonable
judgment of the Representative, impracticable to market the Underwritten
Certificates.
12. Bank of America Obligations. Bank of America, N.A. agrees with each
---------------------------
Underwriter, for the sole and exclusive benefit of such Underwriter and each
person who controls such Underwriter within the meaning of either the Act or the
Exchange Act and not for the benefit of any assignee thereof or any other person
or persons dealing with such Underwriter, to indemnify and hold harmless each
Underwriter and each person who controls an Underwriter within the meaning of
either the Act or the Exchange Act against any failure by the Seller to perform
any of its obligations under this Agreement. Bank of America, N.A. agrees that
there are no conditions precedent to the obligations of Bank of America, N.A.
hereunder other than written demand to the Seller to perform its obligations
under this Agreement.
13. Representations and Indemnities to Survive. The respective
------------------------------------------
agreements, representations, warranties, indemnities and other statements of the
Seller or its officers and of the Underwriters 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 any Underwriter or the Seller or any of
the officers, directors or controlling persons referred to in Section 8 hereof,
and will survive delivery of and payment for the Underwritten Certificates. The
provisions of Sections 7, 8 and 12 hereof and this Section 13 shall survive the
termination or cancellation of this Agreement.
14. Notices. All communications hereunder will be in writing and
-------
effective only on receipt, and, if sent to the Representative, will be mailed,
delivered or telegraphed and confirmed to them, at the address specified in
Schedule I hereto, with a copy to: Hunton & Xxxxxxxx, Bank of America Plaza,
----------
Suite 3500, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attn:
-19-
Xxxxxxx Xxxxxxxx, Esq.; or, if sent to the Seller, will be mailed, delivered or
telegraphed and confirmed to it c/o EquiCredit Corporation of America, 00000
Xxxxxxxx Xxxx Xxxx., Xxxxxxxxxxxx, Xxxxxxx 00000, Attention: Chief Financial
Officer.
15. Successors. This Agreement will inure to the benefit of and be
----------
binding upon the parties hereto and their respective 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.
16. Applicable Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
--------------
THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF
THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS, WITHOUT
GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW (BUT WITH REFERENCE TO SECTION
5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW, WHICH BY ITS TERMS APPLIES TO
THIS AGREEMENT)
17. Miscellaneous.
-------------
(a) This Agreement supersedes all prior or contemporaneous
agreements and understandings relating to the subject matter hereof.
(b) 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.
(c) 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.
(d) The headings of the Sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
[SIGNATURES ON FOLLOWING PAGE]
-20-
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 the
Seller and each Underwriter.
Very truly yours,
EQCC ASSET BACKED CORPORATION
By: ----------------------------------
Name:
-----------------------------
Title:
-----------------------------
BANK OF AMERICA, N.A.,
solely for the purposes of Section 12 hereof
By: ----------------------------------
Name:
-----------------------------
Title:
----------------------------
The foregoing Agreement is hereby confirmed and accepted as of the date
specified in Schedule I hereto.
----------
BANC OF AMERICA SECURITIES LLC
By:
--------------------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
XXXXXXX, SACHS & CO.
By:
--------------------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
-21-
SCHEDULE I
Underwriting Agreement dated March 25, 2002
Registration Statement No. 333-67984
Title: EQCC Asset Backed Certificates, Series 2002-1:
Description of the Underwritten Certificates:
Principal Form of Required Rating
Certificates Balance Pass-Through Rate(1) Certificates S&P* Xxxxx'x** Fitch***
------------ --------- ----------------- ------------ --- ------- -----
Class 1-A $3,523,841,387 LIBOR + 0.30% Book-Entry AAA Aaa AAA
Class 2-A $2,673,321,752 LIBOR + 0.30% Book-Entry AAA Aaa AAA
------------
* Standard & Poor's Ratings Services
** Xxxxx'x Investors Service, Inc.
*** Fitch Ratings
(1) In each case subject to caps as provided in the Final Prospectus.
Depositories for Book-Entry Certificates: The Depository Trust Company; CEDEL
S.A.; Euroclear System
Closing Date, Time and Location: March 27, 2002, 10:00 a.m., Charlotte, North
Carolina time, Xxxxxx xx Xxxxxx & Xxxxxxxx, Xxxx xx Xxxxxxx Xxxxx,
Xxxxx 0000, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000.
-22-
SCHEDULE II
Underwriters and Certificates Purchase Prices
---------------------------------------------
Class 1-A
--------- Principal
Amount of
% of Certificates Purchase
Underwriters Total Purchased* Price**
------------ ----- --------- -----
Banc of America
Securities LLC. ....... 50% $1,761,920,693.50 99.90%
Xxxxxxx, Xxxxx & Co. .... 50% $1,761,920,693.50 99.90%
Total .............. 100% $3,523,841,387.00 99.90%
* Subject to final Class sizes.
** As a percentage of the Principal Amount of the Certificates
Purchased.
Class 2-A
--------- Principal
Amount of
% of Certificates Purchase
Underwriters Total Purchased* Price**
------------ ----- --------- -----
Banc of America
Securities LLC. ....... 50% $1,336,660,876 99.90%
Xxxxxxx, Sachs & Co. .... 50% $1,336,660,876 99.90%
Total .............. 100% $2,673,321,752 99.90%
* Subject to final Class sizes.
** As a percentage of the Principal Amount of the Certificates
Purchased.
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