Exhibit 1.1
UNDERWRITING AGREEMENT
Charlotte, North Carolina
June 27, 0000
Xxxx xx Xxxxxxx Securities LLC
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Xxxxxxx, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
EQCC Receivables Corporation (the "Seller" or the
"Depositor"), proposes to sell to the underwriters named in Schedule II hereto
(collectively, the "Underwriters" and each, an "Underwriter"), the principal
amount of the EQCC Asset Backed Certificates, Series 2001-1F, identified in
Schedule I hereto (the "Underwritten Certificates").
Each class of Underwritten Certificates listed in Schedule I
hereto represents an undivided beneficial ownership interest in EQCC Trust
2001-1F (the "Trust"). The Trust was formed pursuant to the pooling and
servicing agreement (the "Pooling and Servicing Agreement"), dated as of
December 1, 2001, among EQCC Receivables Corporation, as depositor, EquiCredit
Corporation of America, as transferor (in such capacity, the "Transferor") and
as initial servicer (in such capacity, the "Initial Servicer"), Fairbanks
Capital Corp., as successor servicer (in such capacity, the "Successor
Servicer," and together with the Initial Servicer, individually and
collectively, the "Servicer"), and The Bank of New York, as trustee (in such
capacity, the "Trustee").
This Underwriting Agreement shall hereinafter be referred to
as the "Agreement." This Agreement , the Pooling and Servicing Agreement, the
Transfer Agreement and the Custodial Agreement are collectively hereinafter
referred to as the "Basic Documents." Capitalized terms used herein and not
otherwise defined shall have the respective meanings ascribed thereto in the
Pooling and Servicing Agreement.
1. Representations and Warranties. The Seller represents and
warrants to, and agrees with, each Underwriter that:
(a) The Seller meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the "Act"), and has filed
with the Securities and Exchange Commission (the "Commission") a
registration statement on such Form (the file number of which is set
forth in Schedule I hereto), which has become effective, for the
registration under the Act of the Underwritten Certificates. Such
registration statement, as amended to the date of this Agreement, meets
the requirements set forth in Rule 415(a)(1) under the Act and complies
in all other material respects with said Rule. The Seller proposes to
file with the Commission pursuant to Rule 424(b)(5) under the Act a
supplement to the prospectus supplement that was filed pursuant to Rule
424(b)(2)
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under the Act in December 2001 (the "Prospectus Supplement") to the
form of prospectus included in such registration statement relating to
the Underwritten Certificates and the plan of distribution thereof and
has previously advised the Underwriters of all further information
(financial and other) with respect to the Seller and the Pool
Information (as defined in Section 8(f) below) to be set forth therein.
Such registration statement, including the exhibits thereto, as amended
to the date of this Agreement, is hereinafter called the "Registration
Statement"; such prospectus in the form in which it appears in the
Registration Statement is hereinafter called the "Basic Prospectus";
and such supplemented form of prospectus, in the form in which it shall
be filed with the Commission pursuant to Rule 424(b)(5) (including the
Basic Prospectus and the Prospectus Supplement as so supplemented) is
hereinafter called the "Final Prospectus." Any reference herein to the
Registration Statement, the Basic Prospectus or the Final Prospectus
shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were filed
under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), on or before the date of this Agreement, or the issue date of
the Basic Prospectus or the Final Prospectus, as the case may be; and
any reference herein to the terms "amend," "amendment" or "supplement"
with respect to the Registration Statement, the Basic Prospectus or the
Final Prospectus shall be deemed to refer to and include the filing of
any document under the Exchange Act after the date of this Agreement,
or the issue date of the Basic Prospectus or the Final Prospectus, as
the case may be, and deemed to be incorporated therein by reference.
(b) As of the date hereof, when the Final Prospectus is first
filed pursuant to Rule 424 under the Act, when, prior to the Closing
Date (as hereinafter defined), any amendment to the Registration
Statement becomes effective (including the filing of any document
incorporated by reference in the Registration Statement), when any
supplement to the Final Prospectus is filed with the Commission and at
the Closing Date (as hereinafter defined), (i) the Registration
Statement, at its effective date and as amended as of any such time,
and the Final Prospectus, as amended or supplemented as of any such
time, comply and will comply in all material respects with the Act and
the respective rules thereunder, (ii) the Registration Statement, at
its effective date and as amended as of any such time, will not contain
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the
statements therein not misleading, and (iii) the Final Prospectus, at
its filing date and as amended or supplemented as of any such time,
will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances
under which they were made, not misleading; provided, however, that the
Seller makes no representations or warranties as to (A) the information
contained in or omitted from the Registration Statement or the Final
Prospectus or any amendment thereof or supplement thereto in reliance
upon and in conformity with information furnished in writing to the
Seller by or on behalf of any Underwriter specifically for use in
connection with the preparation of the Registration Statement and the
Final Prospectus or (B) any Derived Information contained in any
Collateral Term Sheet, Structural Term Sheet, Series Term Sheet or
Computational Materials (each as defined in Section 5(b) below).
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(c) The Seller has been duly incorporated and is validly
existing as a corporation under the laws of the State of Delaware and
is in good standing as a foreign corporation in each jurisdiction in
which its ownership or lease of property or conduct of its business so
requires and has corporate and other power and authority to own its
properties and conduct its business, as now conducted by it, and to
enter into and perform its obligations under this Agreement and the
other Basic Documents.
(d) Since the respective dates as of which information is
given in the Prospectus, there has not been any material adverse change
in the general affairs, management, financial condition or results of
operations of the Seller or the Transferor, otherwise than as set forth
or contemplated in the Prospectus as supplemented or amended as of the
Closing Date.
(e) The Seller, to the best of its knowledge after due
inquiry, is not aware of (i) any request by the Commission for any
further amendment of the Registration Statement or the Basic Prospectus
or for any additional information or (ii) the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation or threat by the Commission of
any proceeding for that purpose.
(f) This Agreement has been duly authorized, executed and
delivered by the Seller, and each of the other Basic Documents, when
delivered by the Seller, will have been duly authorized, executed and
delivered by the Seller, and will constitute a legal, valid and binding
agreement of the Seller, enforceable against the Seller in accordance
with its respective terms, subject, as to the enforcement of remedies,
to applicable bankruptcy, insolvency, reorganization, moratorium,
receivership and similar laws affecting creditors' rights generally and
to general principles of equity (regardless of whether the enforcement
of such remedies is considered in a proceeding in equity or at law),
and except as rights to indemnity and contribution hereunder may be
limited by federal or state securities laws or principles of public
policy.
(g) The Underwritten Certificates have been duly executed,
authenticated, issued and delivered and are validly issued and legally
outstanding and entitled to the benefits provided by the Pooling and
Servicing Agreement in the form filed as an exhibit to the Registration
Statement.
(h) The issue and sale of the Underwritten Certificates and
the compliance by the Seller with all of the provisions of the
Underwritten Certificates, this Agreement and the Basic Documents, and
the consummation of the transactions herein and therein contemplated
will not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Seller is a party or by which the Seller is
bound or to which any of the property or assets of the Seller is
subject, nor will such action result in any violation of the provisions
of the Certificate of Incorporation or By-laws of the Seller or any
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Seller or any of its
properties; and no consent, approval, authorization, order,
registration or qualification of
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or with any such court or governmental agency or body is required for
the sale of the Underwritten Certificates or the consummation by the
Seller of the transactions contemplated by this Agreement or the
Pooling and Servicing Agreement, except such as have been, or will have
been prior to the Closing Date, obtained under the Act and such
consents, approvals, authorizations, registrations or qualifications as
may be required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Underwritten Certificates by
the Underwriters.
(i) Other than as set forth or contemplated in the
Registration Statement, there are no legal or governmental proceedings
pending to which the Seller or any of its subsidiaries is a party or of
which any property of the Seller or any of its subsidiaries is the
subject which, if determined adversely to the Seller or any of its
subsidiaries, would individually or in the aggregate have a material
adverse effect on the current or future consolidated financial
position, stockholders' equity or results of operations of the Seller
and its subsidiaries; and, to the best of the Seller's knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(j) The Seller is not an "investment company" within the
meaning of such term under the Investment Company Act of 1940 (the
"1940 Act") and the rules and regulations of the Commission thereunder.
(k) At the time of execution and delivery of this Agreement,
the Seller will: (i) have equitable title to the interest in the
Underwritten Certificates conveyed by the Seller, free and clear of any
lien, mortgage, pledge, charge, encumbrance, adverse claim or other
security interest (collectively, "Liens"); (ii) not have assigned to
any person any of its right, title or interest in the Underwritten
Certificates; and (iii) have the power and authority to sell the
Underwritten Certificates to the Underwriters. Upon delivery to the
Underwriters of the Underwritten Certificates, the Underwriters will
have good title to the Underwritten Certificates free of any Liens.
(l) As of the Cut-Off Date, the Mortgage Loans will conform to
the descriptions thereof contained in the Final Prospectus.
(m) At the Closing Date, the Underwritten Certificates and the
Pooling and Servicing Agreement will conform in all material respects
to the descriptions thereof contained in the Final Prospectus.
(n) Any taxes, fees and other governmental charges in
connection with the execution, delivery and issuance of the Basic
Documents and the Underwritten Certificates have been paid or will be
paid at or prior to the Closing Date.
(o) Any certificate signed by an officer of the Seller and
delivered to the Underwriters or counsel to the Underwriters in
connection with the offering of the Underwritten Certificates shall be
deemed, and shall state that it is, a representation and warranty as to
the matters covered thereby to each person to whom the representations
and warranties in this Section 1 are made.
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(p) As of the Closing Date, each of the respective
representations and warranties of the Transferor and the Depositor set
forth in the Basic Documents will be true and correct, except for
representations and warranties as to statistical characteristics of the
Mortgage Loans, which were made only as of the "Cut-off Date" specified
in the Pooling and Servicing Agreement, and the Underwriters may rely
on such representations and warranties as if they were set forth herein
in full.
2. Purchase and Sale. Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the Seller
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Seller, at the purchase price set forth in
Schedule II hereto, the principal amount or percentage interest of the
Underwritten Certificates set forth opposite such Underwriter's name therein.
3. Delivery and Payment. Delivery of and payment for the
Underwritten Certificates shall be made at the office, on the date and at the
time specified in Schedule I hereto, which date and time may be postponed by
agreement between the Underwriters and the Seller or as provided in Section 9
hereof (such date and time of delivery and payment for the Underwritten
Certificates being herein called the "Closing Date"). Delivery of the
Underwritten Certificates shall be made to the Underwriters for their respective
accounts against payment by the several Underwriters of the purchase price
thereof in the manner set forth in Schedule II hereto. If Schedule I indicates
that the Underwritten Certificates are to be issued in book-entry form, delivery
of the Underwritten Certificates shall be made through the facilities of the
depository or depositories set forth on Schedule I. Alternatively, certificates
for the Underwritten Certificates shall be registered in such names and in such
denominations as the Underwriters may request not less than three full business
days in advance of the Closing Date.
The Seller agrees to have the Underwritten
Certificates available for inspection, checking and packaging by the
Underwriters in Charlotte, North Carolina, not later than 1:00 p.m.,
Charlotte, North Carolina time, on the business day prior to the
Closing Date.
4. Offering by the Underwriters. It is understood that the
Underwriters propose to offer the Underwritten Certificates for sale to the
public (which may include selected dealers) as set forth in the Prospectus.
5. Agreements. The Seller agrees with the several Underwriters
that:
(a) Prior to the termination of the offering of the
Underwritten Certificates, the Seller will not file any amendment of
the Registration Statement or supplement (including the Final
Prospectus) to the Basic Prospectus unless the Seller has furnished to
each Underwriter a copy for review prior to filing and will not file
any such proposed amendment or supplement to which each Underwriter
reasonably objects after reasonable notice thereof. Subject to the
foregoing sentence, the Seller will cause the Final Prospectus to be
filed with the Commission in a timely manner pursuant to Rule 424. The
Seller will advise the Underwriters promptly (i) when the Final
Prospectus shall have been filed with the Commission pursuant to Rule
424, (ii) when any amendment to the Registration Statement relating to
the Underwritten Certificates shall have become
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effective, (iii) of any request by the Commission for any amendment of
the Registration Statement or amendment of or supplement to the Final
Prospectus or for any additional information, (iv) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose and (v) of the receipt by the Seller of any
notification with respect to the suspension of the qualification of the
Underwritten Certificates for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The
Seller will use its best efforts to prevent the issuance of any such
stop order or suspension of qualification and, if issued, to obtain as
soon as possible the withdrawal thereof.
(b) The Seller will cause any Computational Materials,
Collateral Term Sheets and ABS Term Sheets (each as defined in Section
10 below) with respect to the Underwritten Certificates which are
delivered by the Underwriters to the Seller pursuant to Section 10 to
be filed with the Commission on a Current Report on Form 8-K (the
"Current Report") pursuant to Rule 13a-11 under the Exchange Act not
later than the business day immediately following the day on which such
Computational Materials, Collateral Term Sheets or ABS Term Sheets are
delivered to counsel for the Seller by the Underwriters as provided in
Section 10, and will promptly advise the Underwriters when such Current
Report has been so filed. Such Current Report shall be incorporated by
reference in the Final Prospectus and the Registration Statement.
Notwithstanding the two preceding sentences, the Seller shall have no
obligation to file materials provided by the Underwriters pursuant to
Section 10 at its own cost which, in the reasonable determination of
the Seller after making reasonable efforts to consult with the
Underwriters, are not required to be filed pursuant to the No-Action
Letters (as defined in Section 10 below), or which contain erroneous
information or contain any untrue statement of a material fact or,
which, when read in conjunction with the Final Prospectus, omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading; it being understood,
however, that the Seller shall have no obligation to review or pass
upon the accuracy or adequacy of, or to correct, any Computational
Materials, Collateral Term Sheets or ABS Term Sheets provided by the
Underwriters to the Seller pursuant to Section 10 hereof.
(c) If, at any time when a prospectus relating to the
Underwritten Certificates is required to be delivered under the Act,
any event occurs as a result of which the Final Prospectus as then
amended or supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading, or if it shall be necessary to amend or
supplement the Final Prospectus to comply with the Act or the Exchange
Act or the respective rules thereunder, the Seller promptly will
prepare and file with the Commission, subject to the first sentence of
paragraph (a) of this Section 5, an amendment or supplement which will
correct such statement or omission or an amendment which will effect
such compliance and will use its best efforts to cause any required
post-effective amendment to the Registration Statement containing such
amendment to be made effective as soon as possible and to notify the
Underwriters thereof and prepare and furnish without charge to each
Underwriter and to any dealer in securities as many electronic and
written copies as the Underwriters may from time to
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time reasonably request of an amended Final Prospectus or a supplement
to the Final Prospectus which will correct such statement or omission
or effect such compliance;
(d) The Seller will furnish to the Underwriters and counsel
for the Underwriters, without charge, executed copies of the
Registration Statement (including exhibits thereto) and each amendment
thereto which shall become effective on or prior to the Closing Date
and, so long as delivery of a prospectus by an Underwriter or dealer
may be required by the Act, as many written and electronic copies of
the Final Prospectus and any amendments thereof and supplements thereto
(other than exhibits to the related Current Report) as the Underwriters
may reasonably request. The Seller will pay the expenses incident to
the performance of its obligations under this Agreement, including (i)
the printing and filing of all documents relating to the offering
(including the Registration Statement and the Final Prospectus), (ii)
the preparation, issuance and delivery of Underwritten Certificates to
the Underwriters, (iii) fees and disbursements of the Seller's counsel
and accountants, (iv) the qualification of the Underwritten
Certificates under state securities laws, including filing fees and the
fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of any blue sky or
legal investment survey, if any, (v) any fees charged by rating
agencies for the rating of the Underwritten Certificates, (vi) the fees
and disbursements of the Trustee and its counsel (except ongoing fees
to be paid pursuant to the Trust Agreement), and (vii) all other costs
and expenses incident to the performance of its obligations hereunder
which are not otherwise specifically provided for in this section,
provided that (i) the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel and any advertising
expenses in connection with offers they may make, and (ii) Banc of
America Securities LLC will pay any additional expenses incurred in
connection with the requirement of delivery of a market-making
prospectus.
(e) The Seller will take all actions which are reasonably
necessary to arrange for the qualification of the Underwritten
Certificates for sale under the laws of such jurisdictions as the
Underwriters reasonably may designate and to maintain such
qualifications in effect so long as required for the distribution of
the Underwritten Certificates; provided, however, that the Seller shall
not be required to qualify to do business in any jurisdiction where it
is not now so qualified or to take any action which would subject it to
general or unlimited service of process in any jurisdiction where it is
not now so subject.
(f) The Seller will make generally available to its
securityholders as soon as practicable, but in any event not later than
eighteen months after the effective date of the Registration Statement
(as defined in Rule 158 (c) under the Act, an earnings statement of the
Seller and its subsidiaries (which need not be audited) complying with
Section 11(a) of the Act and the rules and regulations thereunder
(including, at the option of the Seller, Rule 158).
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwritten Certificates shall
be subject to the accuracy of the representations and warranties on the part of
the Seller contained herein as of the date hereof, as
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of the date of the effectiveness of any amendment to the Registration Statement
filed prior to the Closing Date (including the filing of any document
incorporated by reference therein) and as of the Closing Date, to the accuracy
of the statements of the Seller made in any certificates delivered pursuant to
the provisions hereof, to the performance by the Seller of its obligations
hereunder and to the following additional conditions:
(a) The Underwriters shall have received from
PriceWaterhouseCoopers, LLP (i) a letter, dated the date hereof,
confirming that they are independent public accountants within the
meaning of the Act and the Rules and Regulations and otherwise in form
and substance reasonably satisfactory to the Underwriters and counsel
to the Underwriters and (ii) a letter dated the Closing Date, updating
the letters referred to in clause (i) above, in form and substance
reasonably satisfactory to the Underwriters and counsel for the
Underwriters.
(b) All actions required to be taken and all filings required
to be made by the Seller under the Act prior to the sale of the
Underwritten Certificates shall have been duly taken or made. At and
prior to the Closing Date, no stop order suspending the effectiveness
of the Registration Statement shall have been issued and no proceedings
for that purpose shall have been instituted or, to the knowledge of the
Seller, shall be contemplated by the Commission, and all requests for
additional information on the part of the Commission shall have been
complied with to the Underwriters' reasonable satisfaction.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development involving a prospective change, in or affecting
particularly the business or properties of the Seller, the Transferor,
the Servicer or the Insurer which, in the judgment of the Underwriters,
materially impairs the investment quality of the Underwritten
Certificates; (ii) any downgrading in the rating of the securities of
the Seller, the Transferor, Bank of America or the Insurer by any
"nationally recognized statistical rating organization" (as such term
is defined for purposes of Rule 436(g) under the Act), or any public
announcement that any such organization has under surveillance or
review its rating of any securities of the Seller, the Transferor, Bank
of America or the Insurer (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any suspension or limitation of
trading in securities generally on the American Stock Exchange or New
York Stock Exchange, or any setting of minimum prices for trading on
such exchange; (iv) any banking moratorium declared by federal, New
York or North Carolina authorities or a material disruption in
commercial banking or securities settlement or clearance services in
the United States or elsewhere; or (v) any outbreak or escalation of
major hostilities in which the United States is involved, any
declaration of war by Congress or any other substantial national or
international calamity or emergency if, in the judgment of the
Underwriters, the effects of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable
to proceed with completion of the sale of and payment for the
Underwritten Certificates.
(d) The Underwriters, unless otherwise agreed to by them,
shall have received a favorable opinion of Hunton & Xxxxxxxx, counsel
to the Seller, addressed to the
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Underwriters, dated the Closing Date in form and substance reasonably
satisfactory to the Underwriters and their counsel.
Such counsel will also deliver to the Underwriters a
reliance letter relating to such opinion rendered to the Rating
Agencies.
With respect to the opinion of Hunton & Xxxxxxxx,
insofar as such opinions involve matters of law of any jurisdiction
other than the State of New York, the State of North Carolina, the
General Corporation Law of the State of Delaware or the United States
of America, such opinions may be given in reliance upon an opinion of
counsel in such jurisdiction reasonably acceptable to the Underwriters,
a copy of which shall be delivered to the Underwriters.
(e) The Underwriters shall have received a letter of Hunton &
Xxxxxxxx, counsel for the Seller, addressed to the Underwriters and
dated the Closing Date and reasonably satisfactory in form and
substance to the Underwriters, permitting the Underwriters to rely on
the tax and other opinions rendered upon the initial issuance of the
Underwritten Certificates.
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(f) The Underwriters shall have received a favorable opinion
of Hunton & Xxxxxxxx, special counsel for the Seller, addressed to the
Underwriters and dated the Closing Date and reasonably satisfactory in
form and substance to the Underwriters, with respect to the validity of
the Certificates, ERISA matters and such other related matters as the
Underwriters shall require, and the Seller shall have furnished or
caused to be furnished to such counsel such documents as such counsel
may reasonably request for the purpose of enabling such counsel to pass
upon such matters.
(g) [Reserved]
(h) [Reserved]
(i) [Reserved]
(j) The Underwriters shall have received a certificate dated
the Closing Date of the President, any Vice President or the Secretary
of the Seller (and, in the case of clause (i) below, the Transferor) in
which such officer shall state that, to the best of his knowledge after
reasonable investigation, (i) the representations and warranties of the
Seller or the Transferor with respect to the Mortgage Loans and the
Underwritten Certificates contained in any Basic Document are true and
correct, (ii) the representations and warranties of the Seller in this
Agreement are true and correct, (iii) the Seller has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date, (iv) no stop order
suspending the effectiveness of the Registration Statement has been
issued, (v) no proceedings for that purpose have been instituted or are
contemplated by the Commission, and (vi) there has been no amendment or
other document filed affecting the Certificate of Incorporation of the
Seller since August 29, 2001, or to the bylaws of the Seller since
March 1, 1998, and no such amendment has been authorized.
(k) On or before the Closing Date, the Underwriters shall have
received evidence satisfactory to the Underwriters that each class of
Underwritten Certificates is rated as set forth on Schedule I hereto.
(l) At the Closing Date, the Underwritten Certificates and the
Pooling and Servicing Agreement will conform in all material respects
to the descriptions thereof contained in the Prospectus.
(m) The Underwriters shall not have discovered and disclosed
to the Seller on or prior to the Closing Date that the Registration
Statement or the Prospectus or any amendment or supplement thereto
contains an untrue statement of a fact or omits to state a fact which,
in the opinion of XxXxx Xxxxxx LLP, counsel to the Underwriters, is
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material and is required to be stated therein or is necessary to make
the statements therein not misleading.
(n) All corporate proceedings and other legal matters relating
to the authorization, form and validity of this Agreement, the
Underwritten Certificates, the Registration Statement and the Final
Prospectus, and all other legal matters relating to this Agreement and
the transactions contemplated hereby, shall be reasonably satisfactory
in all respects to counsel for the Underwriters, and the Seller shall
have furnished to such counsel all documents and information that such
counsel may reasonably request to enable such counsel to pass upon such
matters.
(o) [Reserved].
(p) At the Closing Date, the Underwriters shall have received
from XxXxx Xxxxxx LLP, counsel to the Underwriters, a letter with
respect to the Final Prospectus, in form and substance satisfactory to
the Underwriters. The Seller will provide or cause to be provided to
the Underwriters such conformed copies of such opinions, certificates,
letters and documents as the Underwriters may reasonably request.
All opinions, letters, evidence and certificates
mentioned above or elsewhere in this Agreement shall be deemed to be in
compliance with the provisions hereof only if they are in form and
substance reasonably satisfactory to counsel for the Underwriters.
If any condition specified in this Section 6 shall
not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Underwriters by notice to the Seller
at any time at or prior to the Closing Date, and such termination shall
be without liability of any party to any other party except as provided
in Sections 7 and 8 hereof.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Underwritten Certificates provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth in Section 6 hereof
is not satisfied or because of any refusal, inability or failure on the part of
the Seller to perform any agreement herein or comply with any provision hereof
other than by reason of a default by any of the Underwriters, the Seller will
reimburse the Underwriters severally upon demand for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
reasonably incurred by them in connection with the proposed purchase and sale of
the Underwritten Certificates.
8. Indemnification and Contribution.
(a) The Seller agrees to indemnify and hold harmless each
Underwriter and each person who controls any Underwriter within the
meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the Act, the Exchange Act or
other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained
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in the Registration Statement for the registration of the Underwritten
Certificates as originally filed or in any amendment thereof, or in the
Basic Prospectus or the Final Prospectus, or in any amendment thereof
or supplement thereto, or arise out of or are based upon omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party for any legal or other expenses
reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided,
however, that (i) the Seller will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or
is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein (A) in reliance upon and in
conformity with written information furnished to the Seller by or on
behalf of any Underwriter specifically for use in connection with the
preparation thereof or (B) in any Derived Information furnished to the
Seller by any Underwriter in writing or by electronic transmission,
except to the extent that any untrue statement or alleged untrue
statement therein results (or is alleged to have resulted) directly
from an error (a "Collateral Error") in the Pool Information furnished
by the Seller to any Underwriter in writing or by electronic
transmission, which information was used by any Underwriter in the
preparation of any Computational Materials, Collateral Term Sheets or
ABS Term Sheets included in such Current Report (or amendment or
supplement thereof) and (ii) such indemnity with respect to any
Collateral Error shall not inure to the benefit of any Underwriter (or
any person controlling any Underwriter) from whom the person asserting
any loss, claim, damage or liability received any Computational
Materials, Collateral Term Sheets or ABS Term Sheets that were prepared
on the basis of such Collateral Error, if the Seller notified such
Underwriter in writing of the Collateral Error or provided in written
or electronic form information superseding or correcting such
Collateral Error (in any such case, a "Corrected Collateral Error") in
sufficient time prior to the confirmation of the sale of the
Underwritten Certificates to such person to permit the Underwriters to
prepare and deliver corrected Computational Materials, Collateral Term
Sheets and/or ABS Term Sheets, as the case may be, and such Underwriter
failed to notify such person thereof or to deliver such person
corrected Computational Materials, Collateral Term Sheets and/or ABS
Term Sheets, as applicable. This indemnity agreement will be in
addition to any liability which the Seller otherwise may have.
(b) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless the Seller, each of its directors, each of
its officers who signs the Registration Statement, and each person who
controls the Seller within the meaning of either the Act or the
Exchange Act, to the same extent as the foregoing indemnity from the
Seller to each Underwriter, but only with reference to (A) written
information relating to such Underwriter furnished to the Seller by or
on behalf of such Underwriter specifically for use in the preparation
of the Registration Statement or Prospectus, and any amendment or
supplement thereto in the foregoing indemnity, or (B) any Derived
Information furnished to the Seller by such Underwriter pursuant to
Section 10 and incorporated by reference in the Registration Statement
or the Final Prospectus (except that no such indemnity shall be
available for any losses, claims, damages or liabilities, or actions in
respect thereof resulting from any Collateral Error). This indemnity
agreement will be in addition to any
-12-
liability which any Underwriter otherwise may have. The Seller
acknowledges that the statements set forth in the Final Prospectus (i)
in the first two sentences of the second paragraph of text under the
caption "Plan of Distribution," concerning the terms of the offering by
the Underwriters, (ii) in the first sentence of the third paragraph of
text under the caption "Plan of Distribution," concerning market making
by the Underwriters, and (iii) solely in the case of Banc of America
Securities LLC, in the fourth paragraph of text under the caption "Plan
of Distribution," concerning market making by such Underwriter,
constitute the only information furnished in writing by or on behalf of
the several Underwriters for inclusion in the documents referred to in
the foregoing indemnity (other than any Derived Information in any
Computational Materials, Collateral Term Sheets or ABS Term Sheets
furnished to the Seller by any Underwriter).
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8 (a) or (b), notify the
indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than
under this Section 8. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein, and, to the extent that it may elect by written
notice delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified
party; provided, however, that if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be
legal defenses available to it and/or other indemnified parties which
are different from or additional to those available to the indemnifying
party, the indemnified party or parties shall have the right to select
separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified
party or parties. Upon receipt of notice from the indemnifying party to
such indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under
this Section 8 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof unless
(i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the
proviso to the next preceding sentence (it being understood, however,
that the indemnifying party shall not be liable for the expenses of
more than one separate counsel (in addition to local counsel), approved
by the Underwriters in the case of subparagraph (a), representing the
indemnified parties under subparagraph (a) who are parties to such
action), (ii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement
of the action, or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of the
indemnifying party; and except that if clause (i) or (iii) is
applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii). No indemnifying party shall,
without the written consent of the indemnified party, effect the
settlement or compromise of, or consent to the entry of any
-13-
judgment with respect to, any pending or threatened action or claim in
respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the
indemnified party from all liability arising out of such action or
claim and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act, by or on behalf of any
indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to
therein, the Seller and the Underwriters shall contribute to the
aggregate losses, claims, damages and liabilities (including legal or
other expenses reasonably incurred in connection with investigating or
defending same) to which the Seller and one or more of the Underwriters
may be subject, as follows:
(i) in the case of any losses, claims, damages and
liabilities (or actions in respect thereof) which do not arise
out of or are not based upon any untrue statement or omission
of a material fact in any Derived Information, in such
proportion so that the Underwriters are responsible for that
portion represented by the percentage that the underwriting
discount bears to the sum of such discount and the purchase
price of the Underwritten Certificates specified in Schedule
II hereto and the Seller is responsible for the balance;
provided, however, that in no case shall any Underwriter
(except as may be provided in any agreement among underwriters
relating to the offering of the Underwritten Certificates) be
responsible under this subparagraph (i) for any amount in
excess of the underwriting discount applicable to the
Underwritten Certificates purchased by such Underwriter
hereunder; and
(ii) in the case of any losses, claims, damages and
liabilities (or actions in respect thereof) which arise out of
or are based upon any untrue statement or omission of a
material fact in any Derived Information, in such proportion
as is appropriate to reflect the relative fault of the Seller
on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities (or actions in
respect thereof) as well as any other relevant equitable
considerations. The relative fault shall be determined by
reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact in such
Computational Materials, Collateral Term Sheets or ABS Term
Sheets results from information prepared by the Seller on the
one hand or the Underwriters on the other and the parties'
relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to in the above subsection (d) shall
be deemed to include any reasonable legal or other expenses
reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim.
-14-
The amount paid or payable by an indemnified party as
a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to in this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding anything to the contrary in this
paragraph (d), no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person who
controls an Underwriter within the meaning of either the Act or the
Exchange Act shall have the same rights to contribution as such
Underwriter, and each person who controls the Seller within the meaning
of either the Act or the Exchange Act, each officer of the Seller who
shall have signed the Registration Statement and each director of the
Seller shall have the same rights to contribution as the Seller,
subject in each case to the preceding sentence of this paragraph (d).
The obligations of the Underwriters of Underwritten Certificates in
this subsection (d) to contribute are several in proportion to their
respective underwriting obligations with respect to such Underwritten
Certificates and not joint.
(e) For purposes hereof, as to each Underwriter, the term
"Derived Information" means such information, if any, in the Series
Term Sheets, Collateral Term Sheets, Structural Term Sheets and/or
Computational Materials that is not (i) contained in the Final
Prospectus taking into account information incorporated therein by
reference (other than information incorporated by reference from the
Series Term Sheets, Collateral Terms Sheets, Structural Terms Sheets
and/or Computational Materials) or (ii) Pool Information, except to the
extent that any omission or alleged omission in Derived Information
result from a Collateral Error.
(f) As used herein, "Pool Information" means information with
respect to the characteristics of the Mortgage Loans backing the
Underwritten Certificates, and administrative and servicing fees, as
provided by or on behalf of the Depositor to the Underwriters in final
form and set forth in the Final Prospectus.
9. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Underwritten Certificates agreed
to be purchased by such Underwriter or Underwriters hereunder and such failure
to purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the amount
of Underwritten Certificates set forth opposite their names in Schedule II
hereto bear to the aggregate amount of Underwritten Certificates set forth
opposite the names of all the remaining Underwriters) the Underwritten
Certificates which the defaulting Underwriter or Underwriters agreed but failed
to purchase; provided, however, that in the event that the aggregate amount of
Underwritten Certificates which the defaulting Underwriter or Underwriters
agreed but failed to purchase shall exceed 10% of the aggregate amount of
Underwritten Certificates set forth in Schedule II hereto, the remaining
Underwriter(s) shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Underwritten Certificates, and if such
nondefaulting Underwriter(s) do not purchase all the Underwritten Certificates,
this Agreement will terminate without liability to any nondefaulting Underwriter
or the Seller. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing
-15-
Date shall be postponed for such period, not exceeding seven days, as the
Underwriters shall determine in order that the required changes in the
Registration Statement and the Final Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Seller and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
10. Computational Materials and ABS Term Sheets.
(a) Not later than 10:30 a.m., Charlotte, North Carolina time,
on a date no later than four business days before delivery of the Final
Prospectus to the Underwriters, the Underwriters shall deliver to the
Seller five complete copies of all materials provided by the
Underwriters to prospective investors in the Underwritten Certificates
which constitute either (i) "Computational Materials" within the
meaning of the no-action letter dated May 20, 1994 issued by the
Division of Corporation Finance of the Commission to Xxxxxx, 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 (together, the "Xxxxxx
Letters") or (ii) "ABS Term Sheets" within the meaning of the no-action
letter dated February 17, 1995 issued by the Division of Corporation
Finance of the Commission to the Public Securities Association (the
"PSA Letter" and together with the Xxxxxx Letters, the "No-Action
Letters"), if the filing of such materials with the Commission is a
condition of the relief granted in such letters. In the case of any
such materials that constitute "Collateral Term Sheets" within the
meaning of the PSA Letter, if such Collateral Term Sheets have not
previously been delivered to the Seller as contemplated by Section
10(b)(i) below, five complete copies of such Collateral Term Sheets
shall be delivered by the Underwriters to the Seller no later than
10:30 a.m., Charlotte, North Carolina time, on the first business day
following the date on which such Collateral Term Sheets were initially
provided to a potential investor. Each delivery of Computational
Materials, Collateral Term Sheets and/or ABS Term Sheets to the Seller
pursuant to this paragraph (a) shall be effected by delivering four
copies of such materials to counsel for the Seller on behalf of the
Seller at the address specified in Section 13 hereof and one copy of
such materials to the Seller.
(b) Each Underwriter represents and warrants to and agrees
with the Seller, as of the date hereof and as of the Closing Date, that
as to itself:
(i) if an Underwriter has provided any Collateral
Term Sheets to potential investors in the Underwritten
Certificates prior to the date hereof and if the filing of
such materials with the Commission is a condition of the
relief granted in the PSA Letter, then in each such case such
Underwriter delivered four copies of such materials to counsel
for the Seller on behalf of the Seller at the address
specified in Section 13 hereof and one copy of such materials
to the Seller no later than 10:30 a.m., Charlotte, North
Carolina time, on the first business day following the date on
which such materials were initially provided to a potential
investor;
-16-
(ii) the Computational Materials (either in original,
aggregated or consolidated form), Collateral Term Sheets and
ABS Term Sheets furnished to the Seller pursuant to Section
10(a) or as contemplated in Section 10(b)(i) constitute all of
the materials furnished to prospective investors by the
Underwriters (whether in written, electronic or other format)
prior to the time of delivery thereof to the Seller with
respect to the Underwritten Certificates in accordance with
the No-Action Letters, and such Computational Materials,
Collateral Term Sheets and ABS Term Sheets comply with the
requirements of the No-Action Letters;
(iii) except as resulting directly from any
Collateral Error, on the respective dates any such
Computational Materials, Collateral Term Sheets and/or ABS
Term Sheets with respect to the Underwritten Certificates were
last furnished to each prospective investor and on the Closing
Date, the Derived Information in such Computational Materials,
Collateral Term Sheets and/or ABS Term Sheets did not and will
not include any untrue statement of a material fact, or, when
read in conjunction with the Final Prospectus, omit to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading;
(iv) all Computational Materials, Collateral Term
Sheets and ABS Term Sheets contained and will contain a
legend, prominently displayed on the first page thereof, to
the effect that the Seller has not prepared, reviewed or
participated in the preparation of such Computational
Materials, Collateral Term Sheets or ABS Term Sheets, is not
responsible for the accuracy thereof and has not authorized
the dissemination thereof;
(v) all Collateral Term Sheets with respect to the
Underwritten Certificates furnished to potential investors
contained and will contain a legend, prominently displayed on
the first page thereof, indicating that the information
contained therein will be superseded by the description of the
Mortgage Loans contained in the Final Prospectus and, except
in the case of the initial Collateral Term Sheet, that such
information supersedes the information in all prior Collateral
Term Sheets; and
(vi) on and after the date hereof, the Underwriters
shall not deliver or authorize the delivery of any
Computational Materials, Collateral Term Sheets, ABS Term
Sheets or other materials relating to the Underwritten
Certificates (whether in written, electronic or other format)
to any potential investor unless such potential investor has
received a Final Prospectus prior to or at the same time as
the delivery of such Computational Materials, Collateral Term
Sheets, ABS Term Sheets or other materials.
Notwithstanding the foregoing, the Underwriters make
no representation or warranty as to whether the Derived Information in
any Computational Materials, Collateral Term Sheets or ABS Term Sheets
included or will include any untrue statement resulting directly from
any Collateral Error (except any Corrected Collateral
-17-
Error, with respect to materials prepared after the receipt by the
Underwriters from the Seller of notice of such Corrected Collateral
Error or materials superseding or correcting such Collateral Error).
(c) The Underwriters acknowledge and agree that the Seller has
not authorized and will not authorize the distribution of any
Computational Materials, Collateral Term Sheets or ABS Term Sheets to
any prospective investor, and agree that any Computational Materials,
Collateral Term Sheets or ABS Term Sheets with respect to the
Underwritten Certificates furnished to prospective investors shall
include a disclaimer in the form set forth in paragraph (b)(v) above.
The Underwriters agree that they will not represent to investors that
any Computational Materials, Collateral Term Sheets and/or ABS Term
Sheets were prepared or disseminated on behalf of the Seller.
(d) If, at any time when a prospectus relating to the
Underwritten Certificates is required to be delivered under the Act, it
shall be necessary to amend or supplement the Final Prospectus as a
result of an untrue statement of a material fact contained in the
Derived Information in any Computational Materials, Collateral Term
Sheets or ABS Term Sheets provided by the Underwriters pursuant to this
Section 10 or the omission to state therein a material fact required,
when considered in conjunction with the Final Prospectus, to be stated
therein or necessary to make the statements therein, when read in
conjunction with the Final Prospectus, not misleading, the
Underwriters, at their expense, promptly will prepare and furnish to
the Seller for filing with the Commission an amendment or supplement to
such Computational Materials, Collateral Term Sheets or ABS Term
Sheets, as the case may be, which will correct such statement or
omission or an amendment which will effect such compliance. The
Underwriters, severally and not jointly, represent and warrant to the
Seller, as of the date of delivery of such amendment or supplement to
the Seller, that the Derived Information in such amendment or
supplement will not include any untrue statement of a material fact or,
when read in conjunction with the Final Prospectus, omit to state a
material fact necessary to make the statements therein not misleading.
The Seller shall have no obligation to file such amendment or
supplement if the Seller determines that (i) such amendment or
supplement contains any untrue statement of a material fact or, when
read in conjunction with the Final Prospectus, omits to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; it being understood, however, that
the Seller shall have no obligation to review or pass upon the accuracy
or adequacy of, or to correct, any such amendment or supplement
provided by the Underwriters to the Seller pursuant to this paragraph
(d) or (ii) such filing is not required under the Act.
(e) Each Underwriter (at its own expense) further agrees to
provide to the Seller any accountants' letters obtained relating to the
Computational Materials, Collateral Term Sheets and/or ABS Term Sheets,
which accountants' letters shall be addressed to the Seller or shall
state that the Seller may rely thereon; provided that the Underwriters
shall have no obligation to procure such letter.
11. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Underwriters, by notice given to
the Seller prior to delivery of and payment for the Underwritten Certificates,
if prior to such time (i) trading in securities generally
-18-
on the New York Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on such Exchange, (ii) a banking moratorium
shall have been declared by Federal authorities or (iii) there shall have
occurred any outbreak or material escalation of hostilities or other calamity or
crisis the effect of which on the financial markets of the United States is such
as to make it, in the reasonable judgment of the Representative, impracticable
to market the Underwritten Certificates.
12. Bank of America Obligations. Bank of America, N.A. agrees
with each Underwriter, for the sole and exclusive benefit of such Underwriter
and each person who controls such Underwriter within the meaning of either the
Act or the Exchange Act and not for the benefit of any assignee thereof or any
other person or persons dealing with such Underwriter, to indemnify and hold
harmless each Underwriter and each person who controls an Underwriter within the
meaning of either the Act or the Exchange Act against (i) any failure by the
Seller to perform any of its obligations under this Agreement or (ii) the
failure of any representations or warranties of the Seller under this Agreement
or the failure of any representations or warranties of Bank of America, N.A.
under the Certificate Purchase Agreement to be true and correct when made
hereunder or thereunder. Bank of America, N.A. agrees that there are no
conditions precedent to the obligations of Bank of America, N.A. hereunder other
than written demand to the Seller to perform its obligations under this
Agreement.
13. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Seller or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Seller or any of
the officers, directors or controlling persons referred to in Section 8 hereof,
and will survive delivery of and payment for the Underwritten Certificates. The
provisions of Sections 7, 8 and 12 hereof and this Section 13 shall survive the
termination or cancellation of this Agreement.
14. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Representative, will be
mailed, delivered or telegraphed and confirmed to them, at the address specified
in Schedule I hereto, with a copy to: Hunton & Xxxxxxxx, Bank of America Plaza,
Suite 3500, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attn:
Xxxxxxx Xxxxxxxx, Esq.; or, if sent to the Seller, will be mailed, delivered or
telegraphed and confirmed to it c/o EquiCredit Corporation of America, 00000
Xxxxxxxx Xxxx Xxxx., Xxxxxxxxxxxx, Xxxxxxx 00000, Attention: Chief Financial
Officer.
15. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 8 hereof,
and no other person will have any right or obligation hereunder.
16. Applicable Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS, WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW (BUT WITH
REFERENCE TO
-19-
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW, WHICH BY ITS TERMS
APPLIES TO THIS AGREEMENT)
17. Miscellaneous.
(a) This Agreement supersedes all prior or contemporaneous
agreements and understandings relating to the subject matter hereof.
(b) Neither this Agreement nor any term hereof may be changed,
waived, discharged or terminated except by a writing signed by the
party against whom enforcement of such change, waiver, discharge or
termination is sought.
(c) This Agreement may be signed in any number of counterparts
each of which shall be deemed an original, which taken together shall
constitute one and the same instrument.
(d) The headings of the Sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
[SIGNATURES ON FOLLOWING PAGE]
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If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Seller and each Underwriter.
Very truly yours,
EQCC RECEIVABLES CORPORATION
By:
-----------------------------------
Name:
----------------------------
Title:
----------------------------
BANK OF AMERICA, N.A.,
solely for the purposes of Section 12 hereof
By:
-----------------------------------
Name:
----------------------------
Title:
----------------------------
The foregoing Agreement is hereby
confirmed and accepted as of the
date specified in Schedule I hereto.
BANC OF AMERICA SECURITIES LLC
By:
-----------------------------------
Name:
----------------------------
Title:
----------------------------
XXXXXXX, SACHS & CO.
By:
-----------------------------------
Name:
----------------------------
Title:
----------------------------
-21-
SCHEDULE I
Underwriting Agreement dated June 27, 2002
Registration Statement No. 333-67984
Title: EQCC Asset Backed Certificates, Series 2001-1F:
Description of the Underwritten Certificates:
Form of
Certificates Principal Balance Pass-Through Rate(1) Certificates Required Rating
------------ ----------------- ----------------- ------------ S&P* Moody's** Fitch***
--- ------- -----
Class A-1 $1,631,812,253.11 6.55% Book-Entry AAA Aaa AAA
Class A-2 $1,227,448,175.90 6.55% Book-Entry AAA Aaa AAA
Class A-3 $1,306,805,609.38 6.24% Book-Entry AAA Aaa AAA
------------
* Standard & Poor's Ratings Services
** Xxxxx'x Investors Service, Inc.
*** Fitch Ratings
(1) In each case subject to caps as provided in the Final Prospectus.
Depositories for Book-Entry Certificates: The Depository Trust Company; CEDEL
S.A.; Euroclear System
Closing Date, Time and Location: June 28, 2002, 10:00 a.m., Charlotte, North
Carolina time, Xxxxxx xx Xxxxxx & Xxxxxxxx, Xxxx xx Xxxxxxx Xxxxx,
Xxxxx 0000, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000.
SCHEDULE II
Underwriters and Certificates Purchase Prices
---------------------------------------------
Class A-1 Principal
--------- Amount of
% of Certificates Purchase
Underwriters Total Purchased* Price**
------------ ----- ---------- -----
Banc of America
Securities LLC. ............ 50% $815,906,126.61 103.21875%
Xxxxxxx, Xxxxx & Co. ......... 50% $815,906,126.50 103.21875%
Total ................... 100% $1,631,812,253.11 103.21875%
* Subject to final Class sizes.
** As a percentage of the Principal Amount of the Certificates Purchased.
Class A-2 Principal
--------- Amount of
% of Certificates Purchase
Underwriters Total Purchased* Price**
------------ ----- ---------- -----
Banc of America
Securities LLC. ............ 50% $613,724,088.45 103.21875%
Xxxxxxx, Sachs & Co. ......... 50% $613,724,087.45 103.21875%
Total ................... 100% $1,227,448,175.90 103.21875%
* Subject to final Class sizes.
** As a percentage of the Principal Amount of the Certificates Purchased.
Class A-3 Principal
--------- Amount of
% of Certificates Purchase
Underwriters Total Purchased* Price**
------------ ----- ---------- -----
Banc of America
Securities LLC. ............ 50% $653,402,804.88 102.546875%
Xxxxxxx, Xxxxx & Co. ......... 50% $653,401,804.50 102.546875%
Total ................... 100% $1,306,805,609.38 102.546875%
* Subject to final Class sizes.
** As a percentage of the Principal Amount of the Certificates Purchased.
