EquiVantage Acceptance Corp.
and
[Name of Representative],
As Representative of the Several Underwriters
Underwriting Agreement
for
EquiVantage Acceptance Corp. Mortgage Loan Trusts
Mortgage Loan Asset-Backed Securities, Issuable in Series
Class A Certificates
__________, 199_
UNDERWRITING AGREEMENT
[Name of Representative],
as Representative of the several
Underwriters named in Schedule A hereto
[Address of Representative]
Dear Ladies and Gentlemen:
EquiVantage Acceptance Corp., a Delaware corporation (the "Company"), has
authorized the issuance of Home Equity Loan Asset-Backed Certificates, Series
199_-_, consisting of the Class A Certificates (the "Offered Certificates"),
the Class B Certificates (the "Class B Certificates") and the Class R
Certificates (the "Class R Certificates" and collectively with the Offered
Certificates and the Class B Certificates, the "Certificates"), evidencing
interests in a pool of home equity loans (the "Home Equity Loans"). The Home
Equity Loans are secured primarily by first and junior lien deeds of trust or
mortgages on one- to four-family residential properties.
Only the Offered Certificates are being purchased by the Underwriters
named in Schedule A hereto, and the Underwriters are purchasing, severally,
only the Offered Certificates set forth opposite their names in Schedule A,
except that the amounts purchased by the Underwriters may change in
accordance with Section X of this Agreement. [Name of Representative] is
acting as representative of the several Underwriters and in such capacity is
hereinafter referred to as the "Representative."
The Certificates will be issued under a pooling and servicing agreement
dated as of _________, 199_ (the "Pooling and Servicing Agreement") among the
Company, as Seller (in such capacity, the "Seller"), EquiVantage Inc., a
Delaware corporation ("EquiVantage Inc."), as Servicer (in such capacity, the
"Servicer"), and [name of Trustee], as trustee (the "Trustee"). The
Certificates will evidence fractional undivided interests in the trust
established under the Pooling and Servicing Agreement (the "Trust"). The
assets of the Trust will initially include, among other things, a pool of
Home Equity Loans and such amounts as may be held by the Trustee for the
Trust in any accounts established under the Pooling and Servicing Agreement,
including the Certificate Account (the "Certificate Account") and the
Principal and Interest Account (the "P&I Account"). The Home Equity Loans
will be acquired from EquiVantage Inc. pursuant to a Master Loan Transfer
Agreement dated _________, 199_ (the "Master Loan Transfer Agreement") and
the related Conveyance Agreement dated _________, 199_ (the "Conveyance
Agreement" and together with the Master Loan Transfer Agreement, the
"Purchase Agreements"). The Offered Certificates will initially
represent an undivided ownership interest in the related pool of Home Equity
Loans in an amount equal to approximately $_________ as of the close of
business on ___________, 199_, or if any Home Equity Loan was originated
subsequent to such date but prior to the Closing Date (hereinafter defined),
the date of origination of such Home Equity Loan (collectively, the "Cut-Off
Date"). The Offered Certificates will also have the benefit of a Certificate
Insurance Policy (the "Certificate Insurance Policy") issued by
[name of Certificate Insurer], a _______ [stock insurance company] (the
"Certificate Insurer"). [The Certificate Insurance Policy will be issued
pursuant to the insurance and indemnity agreement dated as of __________, 199_
(the "Insurance Agreement") among the Certificate Insurer, the Company, the
Servicer and the Trustee.] A form of the Pooling and Servicing Agreement has
been filed as an exhibit to the Registration Statement (hereinafter defined).
The Certificates are more fully described in the Prospectus (hereinafter
defined) that the Company has furnished to the Underwriters. Capitalized
terms used but not defined herein shall have the meanings given to them in
the Pooling and Servicing Agreement.
SECTION I. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the Underwriters that:
A. A registration statement on Form S-3 (No. 333-______) has (i) been
prepared by the Company in conformity with the requirements of the Securities
Act of 1933, as amended (the "Securities Act"), and the rules and regulations
(the "Rules and Regulations") of the United States Securities and Exchange
Commission (the "Commission") thereunder, (ii) been filed with the Commission
under the Securities Act and (iii) become effective under the Securities Act.
Copies of such registration statement have been delivered by the Company to
the Representative. As used in this Agreement, "Effective Time" means the
date and the time as of which such registration statement, or the most recent
post-effective amendment thereto, if any, was declared effective by the
Commission; "Effective Date" means the date of the Effective Time;
"Registration Statement" means such registration statement, at the Effective
Time, including any documents incorporated by reference therein at such time;
"Basic Prospectus" means the final prospectus dated ___________, 199_; and
"Prospectus Supplement" means the final prospectus supplement relating to the
Offered Certificates, to be filed with the Commission pursuant to paragraphs
(2), (3) or (5) of Rule 424(b) of the Rules and Regulations. "Prospectus"
means the Basic Prospectus together with the Prospectus Supplement.
Reference made herein to the Prospectus shall be deemed to refer to and
include any documents incorporated by reference therein pursuant to Item 12
of Form S-3 under the Securities Act as of the date of the Prospectus, any
reference to any amendment or supplement to the Prospectus shall be deemed to
refer to and include any document filed under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), after the date of the Prospectus and
incorporated by reference in the Prospectus, and any reference to any
amendment to the Registration Statement shall be deemed to include any report
of the Company filed with the Commission pursuant to Section 13(a) or 15(d)
of the Exchange Act after the Effective Time that is incorporated by
reference in the Registration Statement. The Commission has not issued any
order preventing or suspending the use of the Prospectus. There are no
contracts or documents of the Company that are required to be filed as
exhibits to the Registration Statement pursuant to the Securities Act or the
Rules and Regulations
-2-
which have not been so filed or incorporated by reference therein on or prior
to the Effective Date of the Registration Statement other than such documents
or materials, if any, as any Underwriter delivers to the Company pursuant to
Section VIII (D) hereof for filing on Form 8-K.
B. The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will, when they become effective or are filed with the Commission,
as the case may be, conform, in all respects to the requirements of the
Securities Act and the Rules and Regulations. The Registration Statement, as
of the Effective Date thereof and of any amendment thereto, did not contain
an 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. The Prospectus as of its date, and as amended or supplemented as
of the Closing Date, does not and will not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that no representation or warranty
is made as to information contained in or omitted from the Registration
Statement or the Prospectus in reliance upon and in conformity with written
information furnished to the Company in writing by the Underwriters expressly
for use therein.
C. The documents incorporated by reference in the Prospectus, when they
became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Securities Act
or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading; any further documents so filed and
incorporated by reference in the Prospectus, when such documents become
effective or are filed with the Commission, as the case may be, will conform
in all material respects to the requirements of the Securities Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided, however, that no representation is made as to documents deemed to
be incorporated by reference in the Prospectus as the result of filing a Form
8-K at the request of the Underwriters except to the extent such documents
reflect information furnished by the Company to the Underwriters for the
purpose of preparing such documents.
D. Since the respective dates as of which information is given in the
Prospectus, there has not been any material adverse change, or any
development involving a prospective material adverse change, in the general
affairs, management, financial condition, or results of operations of the
Company, otherwise than as set forth or contemplated in the Prospectus as
supplemented or amended as of the Closing Date.
E. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, is duly
qualified to do business and is in good
-3-
standing as a foreign corporation in each jurisdiction in which its ownership
or lease of property or the conduct of its business requires such
qualification, and has all power and authority necessary to own or hold its
properties, to conduct the business in which it is engaged and to enter into
and perform its obligations under this Agreement, the Pooling and Servicing
Agreement[, the Insurance Agreement] and the Purchase Agreements and to cause
the Certificates to be issued.
F. There are no actions, proceedings or investigations pending with
respect to which the Company has received service of process before or
threatened by any court, administrative agency or other tribunal to which the
Company is a party or of which any of its properties is the subject (a) which
if determined adversely to the Company would have a material adverse effect
on the business or financial condition of the Company, (b) asserting the
invalidity of this Agreement, the Pooling and Servicing Agreement,
[the Insurance Agreement,]the Purchase Agreements or the Certificates, (c)
seeking to prevent the issuance of the Certificates or the consummation by
the Company of any of the transactions contemplated by this Agreement, the
Pooling and Servicing Agreement[, the Insurance Agreement] or the Purchase
Agreements, as the case may be, (d) which might individually or in the
aggregate materially and adversely affect the performance by the Company of
its obligations under, or the validity or enforceability of, this Agreement,
the Pooling and Servicing Agreement, [the Insurance Agreement,] the Purchase
Agreements or the Certificates or (e) which might adversely affect the
federal income tax attributes of the Certificates as described in the
Prospectus.
G. This Agreement has been, and the Pooling and Servicing
Agreement[, the Insurance Agreement] and the Purchase Agreements, when
executed and delivered as contemplated hereby and thereby, will have been,
duly authorized, executed and delivered by the Company, and this Agreement
constitutes, and the Pooling and Servicing
Agreement[ and the Insurance Agreement], when executed and delivered as
contemplated herein, will constitute, legal, valid and binding instruments
enforceable against the Company in accordance with their respective terms,
subject as to enforceability to (x) applicable bankruptcy, reorganization,
insolvency, moratorium or other similar laws affecting creditors' rights
generally, (y) general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law), and (z) with
respect to rights of indemnity under this
Agreement[ and the Insurance Agreement], limitations of public policy under
applicable securities laws.
H. The execution, delivery and performance of this Agreement, the
Pooling and Servicing Agreement[, the Insurance Agreement] and the Purchase
Agreements by the Company and the consummation of the transactions
contemplated hereby and thereby, compliance with the provisions thereof, and
the issuance and delivery of the Certificates 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 to which the Company is a party,
by which the Company is bound or to which any of the properties or assets of
the Company 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 the Company, nor will such actions result in any violation of
the provisions of the certificate of incorporation or by-laws of the
-4-
Company or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company 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 the
Company. The Company is not a party to, bound by, or in breach or violation
of, any indenture or other agreement or instrument, or subject to or in
violation of any statute, order, rule or regulation of any court,
governmental agency or body or other tribunal having jurisdiction over the
Company, which materially and adversely affects, or is reasonably likely in
the future to materially and adversely affect, (i) the ability of the Company
to perform its obligations under this Agreement[,][and] the Pooling and
Servicing Agreement [and the Insurance Agreement] or (ii) the business,
operations, results of operations, financial position, income, properties or
assets of the Company.
I. The Company has no reason to know that [name of accountants] are not
independent public accountants with respect to the Company as required by the
Securities Act and the Rules and Regulations.
J. The direction by the Company to the Trustee to execute,
authenticate, issue and deliver the Certificates has been duly authorized by
the Company and, assuming the Trustee has been duly authorized to do so, when
executed, authenticated, issued 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 provided by the
Pooling and Servicing Agreement.
K. 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 and the sale
of the Offered Certificates to the Underwriters, or the consummation by the
Company of the other transactions contemplated by this Agreement, the Pooling
and Servicing Agreement[, the Insurance Agreement] or the Purchase
Agreements, except 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 Offered Certificates by
the Underwriters or as have been obtained.
L. The Company possesses all material licenses, certificates,
authorities or permits issued by the appropriate state, Federal or foreign
regulatory agencies or bodies necessary to conduct the business now conducted
by it and as described in the Prospectus, and there are no proceedings
pending with respect to which the Company has received service of process or,
to the best knowledge of the Company, threatened relating to the revocation
or modification of any such license, certificate, authority or permit which
if decided adversely to the Company would, singly or in the aggregate,
materially and adversely affect the conduct of its business, operations or
financial condition.
M. At the time of execution and delivery of the Pooling and Servicing
Agreement, the Company will: (i) have good title to the Home Equity Loans
being conveyed by the Company, in its capacity as Seller thereunder, to the
Trust pursuant to the terms of the Pooling and Servicing
-5-
Agreement, 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 or title in the Home Equity
Loans, in the Pooling and Servicing Agreement or in the Certificates being
issued pursuant thereto; and, (iii) have the power and authority, in its
capacity as Seller thereunder, to convey its interest in the Home Equity
Loans to the Trust pursuant to the terms of the Pooling and Servicing
Agreement and to sell the Offered Certificates to the Underwriters. Upon
execution and delivery of the Pooling and Servicing Agreement by the Trustee,
the Trust will have acquired beneficial ownership of all of the Company's
right, title and interest in and to the Home Equity Loans. Upon delivery to
the Underwriters of the Offered Certificates, the Underwriters will have good
title to the Offered Certificates, free of any Liens.
N. As of the Cut-Off Date, each of the Home Equity Loans will meet the
eligibility criteria described in the Prospectus and will conform to the
descriptions thereof contained in the Prospectus in all material respects.
O. The Pooling and Servicing Agreement is not required to be qualified
under the Trust Indenture Act of 1939, as amended, and the Trust created
thereby is not required to be registered, and the Company is not an
"investment company" as such term is defined, under the Investment Company
Act of 1940, as amended (the "1940 Act").
P. At the Closing Date, the Offered Certificates, the Purchase
Agreements and the Pooling and Servicing Agreement will conform in all
material respects to the descriptions thereof contained in the Prospectus.
The Offered Certificates will be duly and validly authorized and, when duly
and validly executed, authenticated, issued and delivered in accordance with
the Pooling and Servicing Agreement and sold to the Underwriters as provided
herein, will be validly issued and outstanding and entitled to the benefits
of the Pooling and Servicing Agreement.
Q. At the Closing Date, the Offered Certificates shall have been rated
in the highest rating category by at least two nationally recognized rating
agencies.
R. Any taxes, fees and other governmental charges in connection with
the execution, delivery and issuance of this Agreement, the Pooling and
Servicing Agreement[, the Insurance Agreement] and the Certificates have been
paid or will be paid at or prior to the Closing Date.
S. At the Closing Date, each of the representations and warranties of
the Company set forth in the Pooling and Servicing Agreement
[and the Insurance Agreement] will be true and correct in all material
respects.
T. The transfer of the Home Equity Loans to the Trust at the Closing Date
will be treated by the Company for financial accounting and reporting purposes
as a sale of assets and not as a pledge of assets to secure debt.
-6-
U. The Company is not aware of (i) any request by the Commission for any
further amendment of the Registration Statement or the Prospectus or for any
additional information, or (ii) any notification with respect to the suspension
of the qualification of the Certificates for sale in any jurisdiction or the
initiating or threatening of any proceeding for such purpose.
Any certificate signed by an officer of the Company and delivered to the
Representative or counsel for the Representative in connection with an offering
of the Offered 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 I are made.
SECTION II. Purchase and Sale. The commitment of the Underwriters to
purchase the Offered Certificates pursuant to this Agreement shall be deemed to
have been made on the basis of the representations and warranties herein
contained and shall be subject to the terms and conditions herein set forth.
The Company agrees to instruct the Trustee to issue the Offered Certificates and
agrees to sell to the Underwriters, and the Underwriters agree (except as
provided in Sections X and XI hereof) severally and not jointly to purchase from
the Company the aggregate initial principal amounts or percentage interests of
the offered Certificates set forth opposite their names on Schedule A, at the
purchase price or prices set forth in Schedule A.
SECTION III. Delivery and Payment. Delivery and payment for the Offered
Certificates to be purchased by the Underwriters shall be made at the offices of
Xxxxxxx & Xxxxx L.L.P., or at such other place as shall be agreed upon by the
Company, at 10:00 a.m. New York City time on ___________, 199_ or at such other
time or date as shall be agreed upon in writing by the Representative and the
Company (such date being referred to as the "Closing Date"). Payment shall be
made to the Company by wire transfer of same day funds payable to the account of
the Company. Delivery of the Offered Certificates shall be made to the
Representative for the accounts of the Underwriters against payment of the
purchase price thereof. The Certificates shall be in such authorized
denominations and registered in such names as the Underwriters may request in
writing at least two business days prior to the Closing Date. The Offered
Certificates will be made available for examination by the Representative no
later than 2:00 p.m. New York City time on the first business day prior to the
Closing Date.
SECTION IV. Offering by the Underwriters. It is understood that, subject
to the terms and conditions hereof, the Underwriters propose to offer the
Offered Certificates for sale to the public as set forth in the Prospectus.
SECTION V. Covenants of the Company. The Company agrees as follows:
A. To prepare the Prospectus in a form approved by the Underwriters and
to file such Prospectus pursuant to Rule 424(b) under the Securities Act not
later than the Commission's close of business on the second business day
following the availability of the Prospectus to the Underwriters; to make no
further amendment or any supplement to the Registration Statement or to the
Prospectus prior to the Closing Date except as permitted herein; to advise
the Underwriters,
-7-
promptly after it receives notice thereof, of the time when any amendment to
the Registration Statement has been filed or becomes effective prior to the
Closing Date or any supplement to the Prospectus or any amended Prospectus
has been filed prior to the Closing Date and to furnish the Underwriters with
copies thereof; to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of the Prospectus and, for so long as the delivery of
a prospectus is required in connection with the offering or sale of the
Offered Certificates; to promptly advise the Underwriters of its receipt of
notice of the issuance by the Commission of any stop order or of: (i) any
order preventing or suspending the use of the Prospectus; (ii) the suspension
of the qualification of the Offered Certificates for offering or sale in any
jurisdiction; (iii) the initiation of or threat of any proceeding for any
such purpose; (iv) any request by the Commission for the amending or
supplementing of the Registration Statement or the Prospectus or for
additional information. In the event of the issuance of any stop order or of
any order preventing or suspending the use of the Prospectus or suspending
any such qualification, the Company promptly shall use its best efforts to
obtain the withdrawal of such order by the Commission.
B. To furnish promptly to the Underwriters and to counsel for the
Underwriters a signed copy of the Registration Statement as originally filed
with the Commission, and of each amendment thereto filed with the Commission,
including all consents and exhibits filed therewith.
C. To deliver promptly to the Underwriters such number of the following
documents as the Underwriters shall reasonably request: (i) conformed copies of
the Registration Statement as originally filed with the Commission and each
amendment thereto (in each case including exhibits); (ii) the Prospectus and any
amended or supplemented Prospectus; and (iii) any document incorporated by
reference in the Prospectus (including exhibits thereto). If the delivery of a
prospectus is required at any time prior to the expiration of nine months after
the Effective Time in connection with the offering or sale of the Offered
Certificates, and if at such time any events shall have occurred 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 any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not misleading, or, if
for any other reason it shall be necessary during such same period to amend or
supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the
Securities Act or the Exchange Act, the Company shall notify the Underwriters
and, upon any Underwriter's request, shall file such document and prepare and
furnish without charge to the Underwriters and to any dealer in securities as
many copies as the Underwriters may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which corrects such
statement or omission or effects such compliance, and in case the Underwriters
are required to deliver a Prospectus in connection with sales of any of the
Offered Certificates at any time nine months or more after the Effective Time,
upon the request of an Underwriter but at its expense, the Company shall prepare
and deliver to such Underwriter as many copies as such Underwriter may
reasonably request of an amended or supplemented Prospectus complying with
Section 10(a)(3) of the Securities Act. If such
-8-
amendment or supplement to the Prospectus is required to be contained in a
post-effective amendment to the Registration Statement, the Company will use
its best efforts to cause such amendment of the Registration Statement to be
made effective as soon as possible.
D. To file promptly with the Commission any amendment to the Registration
Statement or the Prospectus or any supplement to the Prospectus that may, in the
judgment of the Company or the Underwriters, be required by the Securities Act
or requested by the Commission.
E. To furnish the Underwriters and counsel for the Underwriters, prior to
filing with the Commission, and to obtain the consent of the Underwriters for
the filing of the following documents relating to the Certificates: (i)
amendment to the Registration Statement or supplement to the Prospectus, or
document incorporated by reference in the Prospectus, or (ii) the Prospectus
pursuant to Rule 424 of the Rules and Regulations.
F. To make generally available to holders of the Offered Certificates as
soon as practicable, but in any event not later than 90 days after the close of
the period covered thereby, a statement of earnings of the Trust (which need not
be audited) complying with Section 11(a) of the Securities Act and the Rules and
Regulations (including, at the option of the Company, Rule 158) and covering a
period of at least twelve consecutive months beginning not later than the first
day of the first fiscal quarter following the Closing Date.
G. To use its best efforts, in cooperation with the Underwriters, to
qualify the Offered Certificates for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States or
elsewhere as the Underwriters may designate, and maintain or cause to be
maintained such qualifications in effect for as long as may be required for the
distribution of the Offered Certificates. The Company will file or cause the
filing of such statements and reports as may be required by the laws of each
jurisdiction in which the Offered Certificates have been so qualified.
H. So long as the Offered Certificates shall be outstanding the Company
shall cause the Trustee, pursuant to the Pooling and Servicing Agreement, to
deliver to the Underwriters as soon as such statements are furnished to the
Trustee: (i) the annual statement as to compliance delivered to the Trustee
pursuant to Section [8.16] of the Pooling and Servicing Agreement; (ii) the
annual statement of a firm of independent public accountants furnished to the
Trustee pursuant to Section [8.17] of the Pooling and Servicing Agreement; (iii)
the monthly servicing report furnished to the Trustee pursuant to Section [7.8]
and Section [8.1] of the Pooling and Servicing Agreement; (iv) the monthly
reports furnished to the Certificateholders pursuant to Section [7.8] of the
Pooling and Servicing Agreement; and (v) from time to time, any other
information concerning the Trust filed with any government or regulatory
authority that is otherwise publicly available, as the Representative may
reasonably request.
I. To apply the net proceeds from the sale of the Offered Certificates in
the manner set forth in the Prospectus.
-9-
J. During a period of seven calendar days from the Closing Date, neither
the Company nor any trust established, directly or indirectly, by the Company
will, without the Representative's prior written consent (which consent shall
not be unreasonably withheld), offer or sell mortgage pass-through certificates
backed by mortgage loans, except pursuant to this Agreement.
K. The Company will enter into the applicable agreements, to which it is
a party pursuant to the Pooling and Servicing Agreement, on or prior to the
Closing Date and will cause to be delivered to the Trustee the Insurance Policy
issued by the Certificate Insurer.
L. The Company will cause any Computational Materials (as defined in
Section VIII(D) below) with respect to the Certificates that are delivered to
the Company as provided in Section VIII(D) below to be filed with the Commission
on a Current Report on Form 8-K (the "Current Report - Computational Materials")
at or before the time of filing of the Prospectus pursuant to Rule 424(b) under
the Securities Act.
M. The Company will cause any ABS Term Sheets (as defined in
Section VIII(D) below) with respect to the Certificates that are delivered to
the Company as provided in Section VIII (D) below to be filed with the
Commission on one or more Current Reports on Form 8-K (collectively, the
"Current Report - ABS Term Sheets" and, together with Current Reports -
Computational Materials, the "Current Reports") (i) at or before the time of
filing of the Prospectus pursuant to Rule 424(b) under the Securities Act, in
the case of Structural Term Sheets (as defined in Section VIII(D) below) and
(ii) within two business days of first use in the case of Collateral Term Sheets
(as defined in Section VIII(D) below.
SECTION VI. Condition to the Underwriters' Obligations. The obligations
of the Underwriters to purchase the Offered Certificates pursuant to this
Agreement are subject to: (i) the accuracy on and as of the Closing Date of the
representations and warranties on the part of the Company herein contained
(including those representations and warranties set forth in the Pooling and
Servicing Agreement and incorporated herein); (ii) the performance by the
Company of all of its obligations hereunder; (iii) the accuracy of the
statements of the Company made in any certificate or other document delivered
pursuant to the provisions hereof; and (iv) the following conditions as of the
Closing Date:
A. The Underwriters shall have received confirmation of the effectiveness
of the Registration Statement. No stop order suspending the effectiveness of
the Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission. Any request of the Commission for inclusion of additional
information in the Registration Statement or the Prospectus shall have been
complied with. The Prospectus shall have been filed pursuant to Rule 424(b).
B. The Underwriters shall not have discovered and disclosed to the
Company on or prior to the Closing Date that the Registration Statement or any
amendment or supplement thereto contains an untrue statement of a fact or omits
to state a fact that, in the opinion of counsel for the
-10-
Underwriters, is material and is required to be stated therein or is
necessary to make the statements therein not misleading, and the Underwriters
shall not have discovered and disclosed to the Company on or prior to the
Closing Date that the Prospectus or any amendment or supplement thereto
contains an untrue statement of a fact or omits to state a fact that, in the
opinion of counsel for the Underwriters, is material and is necessary to make
the statements therein not misleading in light of the circumstances under
which they were made.
C. All corporate proceedings and other legal matters relating to the
authorization, form and validity of this Agreement, the Pooling and Servicing
Agreement, [the Insurance Agreement,] the Purchase Agreements, the Certificates,
the Registration Statement and the Prospectus, and all other legal matters
relating to this Agreement and the transactions contemplated hereby shall be
satisfactory in all respects to counsel for the Underwriters, and the Company
shall have furnished to such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters. The Representative
shall have received the Pooling and Servicing Agreement and the Offered
Certificates in form and substance satisfactory to the Representative, duly
executed by all signatories required pursuant to the respective terms thereof.
X. Xxxxxxx & Xxxxx L.L.P. shall have furnished to the Underwriters their
written opinion, as counsel to the Company, addressed to the Underwriters and
dated the Closing Date, in form and substance satisfactory to the Underwriters,
to the effect that:
1. The conditions to the use by the Company 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.
2. 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 thereunder, and such counsel does not know of any
amendment to the Registration Statement required to be filed.
3. 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.
4. The statements set forth in the Basic Prospectus under the captions
"Description of the Securities" and "The Pooling and Servicing Agreement"
and in the Prospectus
-11-
Supplement under the captions "Description of the Certificates" and "The
Pooling and Servicing Agreement," 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.
5. The statements set forth in the Basic Prospectus and the Prospectus
Supplement, as the case may be, under the captions "ERISA Considerations,"
"Certain Federal Income Tax Consequences," "Legal Investment Matters" and
"Certain Legal Aspects of Mortgage Loans and Related Matters," to the
extent that they constitute matters of federal law or legal conclusions
with respect thereto, provide a fair and accurate summary of such law or
legal conclusions.
6. The Pooling and Servicing Agreement and the Purchase Agreements
conform in all material respects to the description thereof contained in
the Prospectus, the Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended, and the Trust
is not required to be registered under the 0000 Xxx.
7. Assuming that the Trustee causes certain assets of the Trust, as
the Trustee has covenanted to do in the Pooling and Servicing Agreement, to
be treated as a "real estate mortgage investment conduit" ("REMIC"), as
such term is defined in the Internal Revenue Code of 1986, as amended (the
"Code"), and the parties to the Pooling and Servicing Agreement comply with
the terms thereof, such assets of the Trust will be treated as a REMIC, the
Offered Certificates and the Class B Certificates will be treated as the
"regular interests" in the Trust and the Class R Certificates will be
treated as the sole "residual interest" in the REMIC. Neither the Trust
nor certain assets and accounts are subject to tax upon its income or
assets by any taxing authority of the State of New York or the City of New
York.
8. To the best of such counsel's knowledge, there are no actions,
proceedings or investigations pending that would adversely affect the
status of the Trust as a REMIC.
9. As a consequence of the qualification of the Trust as a REMIC, the
Offered Certificates will be treated as "qualifying real property loans"
under Section 593(d) of the Code, "regular. . .interest(s) in a REMIC"
under Section 7701(a)(19)(C) of the Code and "real estate assets" under
Section 856(c) of the Code in the same proportion that the assets in the
Trust consist of qualifying assets under such Sections. In addition, as a
consequence of the qualification of the Trust as a REMIC, interest on the
Offered Certificates will be treated as "interest on obligations secured by
mortgages on real property" under Section 856(c) of the Code to the extent
that such Offered Certificates are treated as "real estate assets" under
Section 856(c) of the Code.
10. The Certificates will, when issued, conform to the description
thereof contained in the Prospectus.
-12-
Such counsel shall also have furnished to the Underwriters a written
statement, addressed to the Underwriters and dated the Closing Date, in form and
substance satisfactory to the Underwriters, to the effect that no facts have
come to the attention of such counsel which lead them to believe that: (a) 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 misleading (except as to the financial, numerical,
statistical and quantitative information included in the Registration Statement
or incorporated by reference therein, as to which such counsel need not make any
statement); (b) 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 necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading
(except as to the Computational Materials, ABS Term Sheets and the financial,
numerical, statistical and quantitative information included in the Prospectus
or incorporated by reference therein and statements in the Prospectus with
respect to the Certificate Insurer, as to which such counsel need not make any
statement); or (c) any document incorporated by reference in the Prospectus or
any further amendment or supplement to any such incorporated document made by
the Company prior to the Closing Date (other than any document filed at the
request of an Underwriter to the extent such document relates to Computational
Materials or ABS Term Sheets) contained, as of the time it became effective or
was filed with the Commission, as the case may be, an untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
In rendering such opinion or making such statement, such counsel may rely,
as to matters of fact, on certificates of responsible officers of the Company.
Such opinions and written statements may also assume the due authorization,
execution and delivery of the instruments and documents referred to therein by
the parties thereto other than the Company.
E. The Underwriters have received the favorable opinion, dated the
Closing Date, of Xxxxxxx & Xxxxx L.L.P., counsel to the Company, addressed to
the Company and satisfactory to the Certificate Insurer, Standard & Poor's
Ratings Services, a Division of the XxXxxx-Xxxx Companies ("Standard & Poor's"),
Xxxxx'x Investors Service Inc. ("Moody's") and the Underwriters, with respect to
certain matters relating to the transfer of the Home Equity Loans to the Company
and from the Company to the Trust, and such counsel shall have consented to
reliance on such opinion by the Certificate Insurer, Standard & Poor's, Moody's
and the Underwriters as though such opinion had been addressed to each such
party.
F. Xxxxx X. Xxxxxxxx, Esq., counsel to the Servicer, shall have furnished
to the Underwriters her written opinion, as counsel to the Servicer, addressed
to the Underwriters and the Company and dated the Closing Date, in form and
substance satisfactory to the Underwriters, to the effect that:
1. The Servicer is validly existing in good standing as a corporation
under the laws of the State of Delaware.
-13-
2. The Servicer has full corporate power and authority to serve in the
capacity of servicer of the related Home Equity Loans as contemplated in
the Pooling and Servicing Agreement.
3. The Pooling and Servicing Agreement [and the Insurance Agreement]
[has] [have] been duly authorized, executed and delivered by the Servicer,
and, assuming the due authorization, execution and delivery of such
agreements by the other parties thereto, constitute the legal, valid and
binding agreements of the Servicer, enforceable against it in accordance
with their terms, subject as to enforceability to (x) bankruptcy,
insolvency, reorganization, moratorium, receivership or other similar laws
now or hereafter in effect relating to creditors' rights generally and (y)
the qualification that the remedy of specific performance and injunctive
and other forms of equitable relief may be subject to equitable defenses
and to the discretion, with respect to such remedies, of the court before
which any proceedings with respect thereto may be brought.
4. No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body having
jurisdiction over the Servicer is required for the consummation by either
of them of the transactions contemplated by the Pooling and Servicing
Agreement[ and the Insurance Agreement], except such consents, approvals,
authorizations, registrations and qualifications as have been obtained.
5. The execution, delivery or performance by the Servicer of the
Pooling and Servicing Agreement [or the Insurance Agreement] and the
transactions contemplated thereby do not (A) conflict with or result in a
breach of, or constitute a default under, (i) any term or provision of the
certificate of incorporation or by-laws of the Servicer; (ii) any term or
provision of any material agreement, deed of trust, mortgage loan
agreement, contract, instrument or indenture, or other agreement to which
the Servicer is a party or is bound or to which any of the property or
assets of the Servicer or any of its subsidiaries is subject; (iii) to the
best of such counsel's knowledge, without independent investigation, any
order, judgment, writ, injunction or decree of any court or governmental
authority having jurisdiction over the Servicer; or (iv) any law, rule or
regulation applicable to the Servicer; or (B) to the best of such counsel's
knowledge, without independent investigation, result in the creation or
imposition of any lien, charge or encumbrance upon the Trust or upon the
Certificates.
6. There are no actions, proceedings or investigations pending with
respect to which the Servicer has received service of process before, or to
the best of such counsel's knowledge, without independent investigation,
threatened against the Servicer by any court, administrative agency or
other tribunal (a) asserting the invalidity of the Pooling and Servicing
Agreement[, the Insurance Agreement] or the Certificates, (b) seeking to
prevent the consummation of any of the transactions contemplated by the
Pooling and Servicing Agreement or (c) which would materially adversely
affect the performance by the Servicer
-14-
of its obligations under, or the validity or enforceability of, the Pooling
and Servicing Agreement [or the Insurance Agreement].
G. Xxxxx X. Xxxxxxxx, Esq., counsel to the Company, shall have furnished
to the Underwriters such counsel's written opinion, addressed to the
Underwriters and dated the Closing Date, in form and substance satisfactory to
the Underwriters, to the effect that:
1. The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware and is
duly qualified to do business and is in good standing as a foreign
corporation in each jurisdiction in which its ownership or lease of
property or the conduct of its business requires such qualification (except
where any such failure would not have a material adverse effect on the
Company's ability to perform its obligations under this Agreement[,] [or]
the Pooling and Servicing Agreement [or the Insurance Agreement]), and has
all 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 Pooling and Servicing Agreement[,
the Insurance Agreement] and the Purchase Agreements, and cause the
Certificates to be issued.
2. The Company 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 the Company is a party or by which it or its properties may be bound,
which default might result in any material adverse change in the financial
condition of the Company or which might materially and adversely affect the
properties or assets, taken as a whole, of the Company.
3. This Agreement, the Pooling and Servicing Agreement[, the Insurance
Agreement] and the Purchase Agreements have been duly authorized, executed
and delivered by the Company 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
the Company in accordance with their respective terms, subject as to
enforceability to (x) bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to creditors' rights
generally, (y) general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law) and (z) with
respect to rights of indemnity under this Agreement[ and the Insurance
Agreement], limitations of public policy under applicable securities laws.
4. The execution, delivery and performance of this Agreement, the
Pooling and Servicing Agreement[, the Insurance Agreement] and the Purchase
Agreements by the Company, the consummation of the transactions
contemplated hereby and thereby, and the issuance and delivery of the
Certificates (i) 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 to which
-15-
the Company is a party or by which the Company is bound or to which
any of the property or assets of the Company 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 the Company,
(ii) nor will such actions result in a violation of the provisions of
the certificate of incorporation or by-laws of the Company or any statute
or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company 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 the Company, and
(iii) nor will such actions result in the creation or imposition of any
lien, charge or encumbrance upon the Trust or upon the Certificates, except
as otherwise contemplated by the Pooling and Servicing Agreement.
5. The direction by the Company to the Trustee to execute, issue,
authenticate and deliver the Certificates has been duly authorized by the
Company and, assuming that the Trustee has been duly authorized to do so,
when executed by the Company and 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.
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, and the
sale of the Offered Certificates to the Underwriters, or the consummation
by the Company of the other transactions contemplated by this Agreement,
the Pooling and Servicing Agreement [and the Insurance Agreement], except
such consents, approvals, authorizations, registrations or qualifications
as may be required under the Securities Act or state securities or Blue Sky
laws in connection with the purchase and distribution of the Offered
Certificates by the Underwriters or as have been previously obtained.
7. There are no actions, proceedings or investigations pending with
respect to which the Company has received service of process before or, to
the best of such counsel's knowledge, without independent investigation,
threatened by any court, administrative agency or other tribunal to which
the Company is a party or of which any of its properties is the subject:
(a) which if determined adversely to the Company would have a material
adverse effect on the business, results of operations or financial
condition of the Company; (b) asserting the invalidity of the Pooling and
Servicing Agreement[, the Insurance Agreement] or the Certificates; (c)
seeking to prevent the issuance of the Certificates or the consummation by
the Company of any of the transactions contemplated by the Pooling and
Servicing Agreement[, the Insurance Agreement] or this Agreement, as the
case may be; or (d) which might materially and adversely affect the
performance by the Company of its obligations under, or the validity or
enforceability of, the Pooling and Servicing Agreement, [the Insurance
Agreement,] this Agreement or the Certificates.
-16-
8. The Certificates have been duly and validly authorized and issued,
and, immediately prior to the sale of the Offered Certificates to the
Underwriters, such Certificates are owned by the Company, free and clear of
all Liens.
H. The Underwriters shall have received the favorable opinion of counsel
(which may be in-house counsel) to the Trustee, dated the Closing Date,
addressed to the Underwriters and in form and scope satisfactory to counsel to
the Underwriters, to the effect that:
1. The Trustee is a [banking association] duly incorporated and
validly existing under the laws of [the United States of America].
2. The Trustee has the full corporate trust power to execute, deliver
and perform its obligations under the Pooling and Servicing Agreement.
3. The execution and delivery by the Trustee of the Pooling and
Servicing Agreement and the performance by the Trustee of its obligations
under the Pooling and Servicing Agreement have been duly authorized by all
necessary corporate actions of the Trustee.
4. The Pooling and Servicing Agreement is a valid and legally binding
obligation of the Trustee enforceable against the Trustee.
5. The execution and delivery by the Trustee of the Pooling and
Servicing Agreement does not (a) violate the organization certificate of
the Trustee or the by-laws of the Trustee, (b) to such counsel's knowledge,
violate any judgment, decree or order of any [Minnesota] or United States
federal court or other [Minnesota] or United States federal governmental
authority by which the Trustee is bound or (c) assuming the non-existence
of any judgment, decree or order of any court or other governmental
authority that would be violated by such execution and delivery, violate
any [Minnesota] or United States federal statute, rule or regulation or
require any consent, approval or authorization of any [Minnesota] or United
States federal court or other [Minnesota] or United States federal
governmental authority.
6. The Certificates have been duly authenticated, executed and
delivered by the Trustee.
7. If the Trustee were acting in the stead of the Servicer under the
Pooling and Servicing Agreement as of the date of such opinion, the Trustee
would have the full corporate trust power to perform the obligations of the
Servicer under the Pooling and Servicing Agreement.
8. To the best of such counsel's knowledge, there are no actions,
proceedings or investigations pending or threatened against or affecting
the Trustee before or by any court,
-17
arbitrator, administrative agency or other governmental authority which,
if decided adversely to the Trustee, would materially and adversely affect
the ability of the Trustee to carry out the transactions contemplated in
the Pooling and Servicing Agreement.
I. The Underwriters shall have received a favorable opinion or opinions,
dated the date of the Closing Date, of counsel for the Underwriters, with
respect to the issue and sale of the Offered Certificates, this Agreement, the
Prospectus and such other related matters as the Underwriters may reasonably
require.
J. The Underwriters shall have received the favorable opinion dated the
Closing Date, from counsel to the Certificate Insurer, which may be in-house
counsel, in form and scope satisfactory to counsel for the Underwriters,
substantially to the effect that:
1. The Certificate Insurer is a [stock insurance corporation] duly
incorporated, validly existing, and in good standing under the laws of the
State of [New York]. The Certificate Insurer is validly licensed and
authorized to issue the Certificate Insurance Policy[, and perform its
obligations under the Insurance Agreement in accordance with the terms
thereof,] under the laws of the State of [New York].
2. The Certificate Insurer has the corporate power to execute and
deliver, and to take all action required of it under, [the Insurance
Agreement and] the Certificate Insurance Policy.
3. The execution, delivery and performance by the Certificate Insurer
of the Certificate Insurance Policy [and the Insurance Agreement] is within
the corporate power of the Certificate Insurer and has been authorized by
all necessary corporate action on the part of the Certificate Insurer, and
does not require the consent or approval of, the giving of notice to, the
prior registration with, or the taking of any other action in respect of
any state or other governmental agency or authority which has not
previously been obtained or effected.
4. The Certificate Insurance Policy [and the Insurance Agreement]
[has][have] been duly authorized, executed and delivered by the Certificate
Insurer and constitute the legal, valid and binding agreement of the
Certificate Insurer, enforceable against the Certificate Insurer in
accordance with its terms subject, as to enforcement, to (x) bankruptcy,
reorganization, insolvency, moratorium and other similar laws relating to
or affecting the enforcement of creditors' rights generally, including,
without limitation, laws relating to fraudulent transfer or conveyances,
preferential transfers and equitable subordination, presently or from time
to time in effect and general principles of equity (regardless of whether
such enforcement is considered in a proceeding in equity or at law), as
such laws may be applied in any such proceeding with respect to the
Certificate Insurer and (y) the qualification that the remedy of specific
performance and other forms of equitable relief may
-18-
be subject to equitable defenses and to the discretion of the court before
which any proceedings with respect thereto may be brought.
5. To the extent the Certificate Insurance Policy constitutes a
security within the meaning of Section 2(l) of the Securities Act, it is a
security that is exempt from the registration requirements of the
Securities Act.
6. The information set forth under the captions "The Certificate
Insurer" and "The Certificate Insurance Policy" in the Prospectus
Supplement are materially correct and, insofar as such information
constitutes a description of the Certificate Insurance Policy, accurately
summarizes the Certificate Insurance Policy.
K. The Company shall have furnished to the Underwriters a certificate,
dated the Closing Date and signed by the Chairman of the Board, the President or
a Vice President of the Company to the extent that the signer of such
certificate has carefully examined the Registration Statement (excluding any
documents incorporated therein by reference), the Pooling and Servicing
Agreement and this Agreement and that, to the best of his or her knowledge based
upon reasonable investigation:
1. The representations and warranties of the Company in this
Agreement, the Pooling and Servicing Agreement and all related agreements
are true and correct as of the Closing Date; the Company has complied with
all agreements and satisfied all the conditions on its part which are to
have been complied with on or prior to the Closing Date.
2. There has been no amendment or other document filed affecting the
certificate of incorporation or by-laws of the Company since __________,
199_ and no such amendment has been authorized. No event has occurred
since __________, 199_ which has affected the good standing of the Company
under the laws of the State of Delaware.
3. 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 the Company from ___________, 199_.
4. There are no actions, suits or proceedings pending with respect to
which it has received service of process or, to the best of such officer's
knowledge, threatened against or affecting the Company which if adversely
determined, individually or in the aggregate, would be reasonably likely to
adversely affect the Company's obligations under the Pooling and Servicing
Agreement or this Agreement in any material way; and no merger,
liquidation, dissolution or bankruptcy of the Company is pending or
contemplated.
L. The Trustee shall have furnished to the Underwriters a certificate of
the Trustee, signed by one or more duly authorized officers of the Trustee,
dated the Closing Date, as to the due authorization, execution and delivery of
the Pooling and Servicing Agreement by the Trustee and
-19-
the acceptance by the Trustee of the trusts created thereby and the due
execution, authentication and delivery of the Certificates by the Trustee
thereunder and such other matters as the Representative shall reasonably
request.
M. The Certificate Insurance Policy [and the Insurance Agreement] shall
have been issued by the Certificate Insurer and shall have been duly
authenticated by an authorized agent of the Certificate Insurer, if so required
under applicable state law or regulations.
N. The Offered Certificates shall have been rated "AAA" by Standard &
Poor's and "Aaa" by Xxxxx'x.
O. The Company shall, by the Closing Date, have furnished to the
Underwriters such further information, certificates and documents as the
Underwriters may reasonably have requested pursuant to a request made not less
than three full business days prior to the Closing Date.
P. Prior to the Closing Date, counsel for the Underwriters shall have
been furnished with such documents and opinions as they may reasonably require
for the purpose of enabling them to pass upon the issuance and sale of the
Certificates as herein contemplated and related proceedings or in order to
evidence the accuracy and completeness of any of the representations and
warranties, or the fulfillment of any of the conditions, herein contained, and
all proceedings taken by the Company in connection with the issuance and sale of
the Certificates as herein contemplated shall be satisfactory in form and
substance to the Underwriters and counsel for the Underwriters.
Q. Subsequent to the execution and delivery of this Agreement none of the
following shall have occurred: (i) trading in securities generally on the New
York Stock Exchange, the American Stock Exchange or the over-the-counter market
shall have been suspended or minimum prices shall have been established on
either of such exchanges or such market by the Commission, by such exchange or
by any other regulatory body or governmental authority having jurisdiction; (ii)
a banking moratorium shall have been declared by Federal or state authorities;
(iii) the United States shall have become engaged in hostilities, there shall
have been an escalation of hostilities involving the United States or there
shall have been a declaration of a national emergency or war by the United
States; or (iv) there shall have occurred such a material adverse change in
general economic, political or financial conditions (or the effect of
international conditions on the financial markets of the United States shall be
such) as to make it in each of the instances set forth in clauses (i), (ii),
(iii) and (iv) herein, in the reasonable judgment of the Underwriters,
impractical or inadvisable to proceed with the public offering or delivery of
the Certificates on the terms and in the manner contemplated in the Prospectus.
R. The Representative shall have received a letter from [name of the
accountants], dated on or before the Closing Date, in form and substance
satisfactory to the Representative and special counsel for the Underwriters,
addressed to each of the Underwriters to the effect that they have performed
certain specified procedures requested by the Representative with respect to the
information set forth in the Prospectus and certain matters relating to the
Company.
-20-
S. The Representative and special counsel for the Underwriters shall have
received copies of any opinions of counsel supplied to the rating organizations
relating to any matters with respect to the Certificates. Any such opinions
shall be dated the Closing Date and addressed to each of the Underwriters or
accompanied by reliance letters to the Representative or shall state that each
of the Underwriters may rely upon them.
T. On or prior to the Closing Date there shall not have occurred any
downgrading, nor shall any notice have been given of (A) any intended or
potential downgrading or (B) any review or possible change in rating the
direction of which has not been indicated, in the rating accorded the
Certificate Insurer's claims paying ability by any "nationally recognized
statistical rating organization," as such term is defined for purposes of the
Securities Act.
U. There has not occurred any change, or any development involving a
prospective change, in a condition, financial or otherwise, or in the earnings,
business or operations, since ________, 199_, of (A) the Company and its
subsidiaries or (B) the Certificate Insurer, that is, in the Representative's
judgment, material and adverse and that makes it, in the Representative's
judgment, impracticable to market the Offered Certificates on the terms and in
the manner contemplated in the Prospectus.
If any conditions specified in this Section VI shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Underwriters by notice to the Company at any time at or prior to the
Closing Date, and such termination shall be without liability of any party to
any other party except as provided in Section VII.
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 reasonable satisfactory
to counsel for the Underwriters.
SECTION VII. Payment of Expenses. If the transaction closes, or if the
transaction fails to close other than as a result of a failure of the
Underwriters to perform hereunder, the Company agrees to pay: (a) the costs
incident to the authorization, issuance, sale and delivery of the Certificates
and any taxes payable in connection therewith; (b) the costs incident to the
preparation, printing and filing under the Securities Act of the Registration
Statement and any amendments and exhibits thereto (including the Prospectus);
(c) the costs of distributing the Registration Statement as originally filed and
each amendment thereto and any post-effective amendments thereof (including, in
each case, exhibits), the Prospectus and any amendment or supplement to the
Prospectus or any document incorporated by reference therein, all as provided in
this Agreement; (d) the costs of reproducing and distributing this Agreement;
(e) the fees and expenses of qualifying the Certificates under the securities
laws of the several jurisdictions as provided in Section V(G) hereof and of
preparing, printing and distributing a Blue Sky Memorandum (including related
fees and expenses of counsel to the Representative); (f) any fees charged by
securities rating services for rating the Offered Certificates; (g) the cost of
the accountant's letter relating to the Prospectus; (h) the fees and expenses of
the Certificate Insurer (other than the fees payable pursuant to the Pooling
-21-
and Servicing Agreement); and (i) all other costs and expenses incident to the
performance of the obligations of the Company (including costs and expenses of
its counsel); provided, however, that, except as provided in this Section VII,
the Underwriters shall pay their own costs and expenses, including the costs and
expenses of their counsel, any transfer taxes on the Offered Certificates which
they may sell and the expenses of advertising any offering of the Offered
Certificates made by the Underwriters, and the Underwriters shall pay the cost
of any accountant's comfort letters which such Underwriters choose to request
relating to any Computational Materials or ABS Term Sheets.
If this Agreement is terminated by the Underwriters in accordance with the
provisions of Section VI or Section XI, whether or not the transactions
contemplated hereunder are consummated, the Company shall cause the Underwriters
to be reimbursed for all reasonable out-of-pocket expenses, including fees and
disbursements of counsel for the Underwriters, except that the Company shall not
be obligated under this Agreement to reimburse the Underwriters for reasonable
out-of-pocket expenses, excluding fees and disbursements of counsel for the
Underwriters, if this Agreement is terminated by the Underwriters in accordance
with Section VI(Q) herein.
SECTION VIII. Indemnification and Contribution. A. The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls such Underwriter within the meaning of Section 15 of the Securities Act
or Section 12 of the Exchange Act from and against any and all loss, claim,
damage or liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage, liability or action
relating to purchases and sales of the Offered Certificates), to which such
Underwriter or any such controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, or
any amendment thereof or supplement thereto, (ii) the omission or alleged
omission to state in the Registration Statement a material fact required to be
stated therein or necessary to make the statements therein not misleading, (iii)
any untrue statement or alleged untrue statement of a material fact contained in
the Prospectus, or any amendment thereof or supplement thereto, or (iv) the
omission or alleged omission to state in the Prospectus a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading and shall reimburse, as provided
herein, such Underwriter and each such controlling person promptly upon demand
for any legal or other expenses reasonably incurred by such Underwriter or such
controlling person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or alleged untrue
statement or omission or alleged omission made in the Prospectus, or any
amendment thereof or supplement thereto, or the Registration Statement, or any
amendment thereof or supplement thereto, in reliance upon and in conformity with
written information furnished to the Company by or on behalf of such Underwriter
specifically for inclusion therein (except to the extent that any untrue
statement or alleged untrue statement or omission or alleged omission is a
result of Seller Provided Information (hereinafter defined) which is not
accurate and complete in all
-22-
material respects). The foregoing indemnity agreement is in addition to any
liability which the Company may otherwise have to any Underwriter or any
controlling person of any such Underwriter.
B. Each Underwriter severally agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act against
any and all loss, claim, damage or liability, joint or several, or any action in
respect thereof, (including, but not limited to, any loss, claim, damage,
liability or action relating to purchases and sales of the Offered
Certificates), to which the Company or any such director, officer or controlling
person may become subject, under the Securities Act or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or is based upon,
(i) any untrue statement or alleged untrue statement of a material fact
contained in the Prospectus, or any amendment thereof or supplement thereto, or
(ii) the omission or alleged omission to state therein a material fact necessary
to make the statements in the Prospectus, in the light of the circumstances
under which they were made, not misleading, but in each case only to the extent
that the untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company by or on behalf of such Underwriter specifically for
inclusion therein, and shall reimburse, as provided herein, the Company and any
such director, officer or controlling person for any legal or other expenses
reasonably incurred by the Company or any director, officer or controlling
person in connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such expenses are
incurred. The foregoing indemnity agreement is in addition to any liability
which any Underwriter may otherwise have to the Company or any such director,
officer or controlling person.
C. Promptly after receipt by any indemnified party under this Section
VIII of notice of any claim or the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against any
indemnifying party under this Section VIII, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section VIII except to the extent it has
been materially prejudiced by such failure and, provided further, however, that
the failure to notify any indemnifying party shall not relieve it from any
liability which it may have to any indemnified party otherwise than under this
Section VIII except as otherwise provided by law.
If any such claim or action shall be brought against an indemnified party,
and it shall notify the indemnifying party thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it wishes, jointly
with any other similarly notified indemnifying party, to assume the defense
thereof with counsel reasonably satisfactory to the indemnified party. After
notice from the indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, except to the extent provided in the
next following paragraph, the indemnifying party shall not be liable to the
indemnified party under this Section VIII for any legal or other expenses
-23-
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation.
Any indemnified party shall have the right to employ separate counsel in
any such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless: (i) the employment thereof has been specifically authorized by the
indemnifying party in writing; (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and such indemnifying party shall have been advised by such
counsel that there may be one or more legal defenses available to it which are
different from or additional to those available to the indemnifying party and in
the reasonable judgment of such counsel it is advisable for such indemnified
party to employ separate counsel; or (iii) the indemnifying party has failed to
assume the defense of such action and employ counsel reasonably satisfactory to
the indemnified party within a reasonably prompt period following the receipt of
notification in writing from the indemnified party, in which case, if such
indemnified party notifies the indemnifying party in writing that it elects to
employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such action
on behalf of such indemnified party, it being understood, however, the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to one local counsel per jurisdiction) which counsel shall be
reasonably acceptable to the indemnifying party at any time for all such
indemnified parties, which firm shall be designated in writing by the related
Underwriter, if the indemnified parties under this Section VIII consist of one
or more Underwriters or any of its or their controlling persons, or the Company,
if the indemnified parties under this Section VIII consist of the Company or any
of the Company's directors, officers or controlling persons.
Each indemnified party, as a condition of the indemnity agreements
contained in Section VIII(A) and (B), shall use its best efforts to cooperate
with the indemnifying party in the defense of any such action or claim. No
indemnifying party shall be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a final
judgment for the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss or
liability by reason of such settlement or judgment.
Notwithstanding the foregoing paragraph, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel as required by this Agreement, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, (which consent shall not be unreasonably withheld),
effect any settlement of any
-24-
pending or threatened proceeding in respect of which any indemnified party is
or could have been a party and indemnity could have been sought hereunder by
such indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that are the
subject matter of such proceeding.
D. Computational Materials and ABS Term Sheets. Not later than 10:30
a.m. New York City time, on the business day before the date on which the
applicable Current Report relating to the Certificates is required to be filed
by the Company with the Commission pursuant to Section V(L) hereof, each
Underwriter shall deliver to the Company five complete copies of all materials,
if any, provided by such Underwriter to prospective investors in such
Certificates which constitute Computational Materials or ABS Term Sheets. Each
delivery of Computational Materials or ABS Term Sheets to the Company pursuant
to this paragraph (D) shall be effected by delivering four copies of such
material to counsel for the Company on behalf of the Company and one copy of
such materials to the Company.
"Computational Materials" shall mean those materials delivered by an
Underwriter to the Company within the meaning of the no-action letter dated May
20, 1994, issued by the Division of Corporation Finance of the Commission to
Xxxxxx, Peabody Acceptance Corporation I, Xxxxxx, Xxxxxxx & 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, for which the filing of such material is a
condition of the relief granted in such letters. "ABS Term Sheets" shall mean
those materials delivered by an Underwriter to the Company in the form of
"Structural Term Sheets" or "Collateral Term Sheets," in each case 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,
for which the filing of such material is a condition of the relief granted in
such letter.
E. Each Underwriter severally and not jointly agrees, except to the
extent that the Seller Provided Information is not accurate and complete in all
material respects, to indemnify and hold harmless the Company, each of the
Company's officers and directors and each person who controls the Company within
the meaning of Section 15 of the Securities Act and Section 12 of the Exchange
Act against any and all losses, claims, damages or liabilities, joint or
several, to which they may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) (including, but not limited to, any loss, claim, damage, liability or
action relating to purchases and sales of the Offered Certificates), arise out
of or are based upon any untrue statement of a material fact contained in the
Computational Materials provided by such Underwriter, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
necessary to make the statements therein, when considered in conjunction with
the Prospectus, and in the light of the circumstances under which they were
made, not misleading, except to the extent that such untrue statement or
omission is based upon the Seller Provided Information and agrees to reimburse
each such indemnified party for any legal or other expenses reasonably incurred
by him, her or it in connection with investigating or defending or preparing to
defend any such loss, claim, damage, liability or action as such expenses are
incurred. The
-25-
obligations of an Underwriter under this Section VIII (E) shall be in
addition to any liability which such Underwriter may otherwise have.
The procedures set forth in Section VIII (C) shall be equally applicable to
this Section VIII(E).
F. If the indemnification provided for in this Section VIII shall for any
reason be unavailable to or insufficient to hold harmless an indemnified party
under Section VIII (A), (B) or (E) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company on the one hand and the related Underwriters on the
other from the offering of the related Offered Certificates or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and the related Underwriter on the other with respect to the
statements or omissions which resulted in such loss, claim, damage or liability,
or action in respect thereof, as well as any other relevant equitable
considerations.
The relative benefits of an Underwriter and the Company shall be deemed to
be in such proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the related Underwriter from time to time
in negotiated sales of the related Offered Certificates.
The relative fault of an Underwriter and the Company shall be determined by
reference to whether the untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied or prepared by the Company or by such Underwriter, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such statement or omission and other equitable
considerations.
The Company and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section VIII (F) were to be
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purposes) or by any other method of allocation which does not
take into account the equitable considerations referred to herein. The amount
paid or payable by an indemnified party as a result of the loss, claim, damage
or liability, or action in respect thereof, referred to above in this Section
VIII (F) shall be deemed to include, for purposes of this Section VIII (F), any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
For purposes of this Section VIII, in no case shall any Underwriter (except
with respect to any document (other than the Computational Materials or ABS Term
Sheets) incorporated by reference into the Registration Statement or Prospectus
at the request of such Underwriter and except
-26-
as may be provided in any agreement among the Underwriters relating to the
offering of the Offered Certificates) be responsible for any amount in excess
of (x) the amount received by such Underwriter in connection with its resale
of the Offered Certificates over (y) the amount paid by such Underwriter to
the Company for the Offered Certificates by such Underwriter hereunder. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
"Seller Provided Information" means any computer tape (or other information
provided to Underwriter for the purpose of preparation of the Prospectus
Supplement, Computational Materials or ABS Term Sheets) furnished to any
Underwriter by the Company concerning the assets comprising the Trust.
G. The Underwriters confirm that the information set forth in the last
paragraph on the front cover page of the Prospectus Supplement, the information
under the heading "Underwriting" therein and the Computational Materials and ABS
Term Sheets are correct, and the Company acknowledges that such information
constitutes the only information furnished in writing to the Company by or on
behalf of any Underwriter specifically for inclusion in the Registration
Statement and the Prospectus.
SECTION IX. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or contained in agreements delivered pursuant hereto or certificates
of officers of the Company submitted pursuant hereto shall remain operative and
in full force and effect, regardless of any investigation made by or on behalf
of the Underwriters or controlling persons thereof, or by or on behalf of the
Company and shall survive delivery of any Offered Certificates to the
Underwriters.
SECTION X. Default by One or More of the Underwriters. If one or more of
the Underwriters participating in the public offering of the Offered
Certificates shall fail at the Closing Date to purchase the Offered Certificates
which it is (or they are) obligated to purchase hereunder (the "Defaulted
Certificates"), then the non-defaulting Underwriters shall have the right,
within 48 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Certificates in such amounts as may be agreed
upon and upon the terms herein set forth (as used in this Agreement, the term
"Underwriter" includes any underwriter substituted for an Underwriter under this
Section X). If, however, the Underwriters have not completed such arrangements
within such 48-hour period, then:
(i) if the aggregate original principal amount of Defaulted
Certificates does not exceed 10% of the aggregate original principal amount
of the Offered Certificates to be purchased pursuant to this Agreement, the
non-defaulting Underwriters named in this Agreement shall be obligated to
purchase the full amount thereof in the proportions that their respective
obligations hereunder bear to the underwriting obligations of all such
non-defaulting Underwriters; or
-27-
(ii) if the aggregate original principal amount of Defaulted
Certificates exceeds 10% of the aggregate original principal amount of the
Offered Certificates to be purchased pursuant to this Agreement, this
Agreement shall terminate, without any liability on the part of any
non-defaulting Underwriters.
No action taken pursuant to this Section X shall relieve any defaulting
Underwriter from the liability with respect to any default of such Underwriter
under this Agreement.
In the event of a default by any Underwriter as set forth in this Section
X, each of the Underwriters and the Company shall have the right to postpone the
Closing Date for a period not exceeding seven Business Days in order that any
required changes in the Registration Statement or Prospectus or in any other
documents or arrangements may be effected.
SECTION XI. Termination of Agreement. The Underwriters may terminate
this Agreement immediately upon notice to the Company, at any time at or prior
to the Closing Date if any of the events or conditions described in Section
VI(Q) of this Agreement shall occur and be continuing. In the event of any such
termination, the provisions of Section VII, the indemnity agreement set forth in
Section VIII, and the provisions of Sections IX and XIV shall remain in effect.
SECTION XII. Notices. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(i) if to the Underwriters, shall be delivered or sent by mail, telex
or facsimile transmission to the Representative at its address set forth
above; and
(ii) if to the Company, shall be delivered or sent by overnight mail
or facsimile transmission to 00000 Xxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxx 00000, Attn.: General Counsel, Fax No. (000) 000-0000.
SECTION XIII. Persons Entitled to the Benefit of this Agreement. This
Agreement shall inure to the benefit and be binding upon the Underwriters and
the Company, and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
the representations, warranties, indemnities and agreements contained in this
Agreement shall also be deemed to be for the benefit of the person or persons,
if any, who control any of the Underwriters within the meaning of Section 15 of
the Securities Act, and for the benefit of directors of the Company, officers of
the Company who have signed the Registration Statement and any person
controlling the Company within the meaning of Section 15 of the Securities Act.
Nothing in this Agreement is intended or shall be construed to give any person,
other than the persons referred to in this Section XIII, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision
contained herein.
SECTION XIV. Survival. The respective indemnities, representations,
warranties and agreements of the Company and the Underwriters contained in this
Agreement, or made by or on
-28-
behalf of them, respectively, pursuant to this Agreement, shall survive the
delivery of and payment for the Certificates and shall remain in full force
and effect, regardless of any investigation made by or on behalf of any of
them or any person controlling any of them. The provisions of Sections V,
VII and VIII hereof shall survive the termination or cancellation of this
Agreement.
SECTION XV. Definition of the Term "Business Day". For purposes of this
Agreement, "Business Day" means any day on which the New York Stock Exchange,
Inc. is open for trading.
SECTION XVI. Governing Law; Submission to Jurisdiction. This Agreement
shall be governed by and construed in accordance with the laws of the State of
New York without giving effect to the conflict of law rules thereof.
The parties hereto submit to the jurisdiction of the United States District
Court for the Southern District of New York and any court in the State of New
York located in the City and County of New York, and appellate court from any
thereof, in any action, suit or proceeding brought against it or in connection
with this Agreement or any of the related documents or the transactions
contemplated hereunder or for recognition or enforcement of any judgment, and
the parties hereto hereby agree that all claims in respect of any such action or
proceeding may be heard or determined in New York State court or, to the extent
permitted by law, in such federal court.
SECTION XVII. Counterparts. This Agreement may be executed in
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
SECTION XVIII. Headings. The headings herein are inserted for
convenience of reference only and are not intended to be part of, or to affect
the meaning or interpretation of, this Agreement.
SECTION XIX. Amendments and Waivers. This Agreement may be amended,
modified, altered or terminated, and any of its provisions waived, only in a
writing signed on behalf of the Company and the Representative.
-29-
If the foregoing correctly sets forth the agreement between the Company and
the Underwriters, please indicate your acceptance in the space provided for the
purpose below.
Very truly yours,
EQUIVANTAGE ACCEPTANCE CORP.
By:
-----------------------------
Name: Xxxx X. Xxxxx
Title: President
CONFIRMED AND ACCEPTED, as
of the date first above written:
[NAME OF REPRESENTATIVE],
Acting on its own behalf and as Representative
of the several Underwriters referred to in Schedule A hereto
By:
------------------------------
Name:
Title:
-30-
SCHEDULE A
Class of Certificates Principal Amount of
Purchased by the Certificates
Name of Underwriter Underwriter Purchased by the Purchase Price
Underwriter (% of Par)
$ %
$ %
------------------
$
------------------
------------------
A-1
