Exhibit 1.1
$____________
CENTEX HOME EQUITY LOAN TRUST 2000-__
Home Equity Loan Asset-Backed Certificates
Series 2000-__
UNDERWRITING AGREEMENT
___________ __, 2000
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as Representative of the Underwriters
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Ladies and Gentlemen:
The Seller CHEC Funding LLC (the "Depositor"), a Delaware limited
liability company, has authorized the issuance and sale of Home Equity Loan
Asset-Backed Certificates, Series 2000-__, Class A-1, Class ▇-▇, ▇▇▇▇▇ ▇-▇,
Class A-4, Class A-5, Class A-6 and Class A-7 (collectively, the "Class A
Certificates"). Also issued are the Class X-IO Certificates and the Class R
Certificates (collectively, the "Non-Offered Certificates"). The Class A
Certificates and the Non-Offered Certificates are collectively referred to as
the "Certificates."
Only the Class A Certificates are being purchased by the Underwriters
named in Schedule A hereto, and _____________ ("________") and ________________
(collectively, the "Underwriters") are purchasing, severally, only the Class A
Certificates set forth opposite their names in Schedule A, except that the
amounts purchased by the Underwriters may change in accordance with Section 10
of this Agreement. Salomon is acting as representative of the Underwriters and
in such capacity is hereinafter referred to as the "Representative."
The Certificates will be issued under a pooling and servicing agreement
(the "Pooling and Servicing Agreement"), to be dated as of __________ __, 2000
among the Depositor, Centex Credit Corporation d/b/a Centex Home Equity
Corporation ("the Seller"), as the servicer and a seller (in such capacity, the
"Servicer" or a "Seller," as the case may be), and _______________________, as
the Trustee (in such capacity, the "Trustee"). Capitalized but undefined terms
shall have the meanings set forth in the Pooling and Servicing Agreement.
The Certificates will evidence fractional undivided interests in the
Trust (the "Trust") formed pursuant to the Pooling and Servicing Agreement. The
assets of the Trust will initially include, among other things, two pools of
home equity loans, one comprised of first and second lien, closed-end fixed-rate
home equity loans and one comprised of first lien closed-end adjustable-rate
home equity loans, having a Cut-Off Date as of the opening of business on
_________________ (the "Home Equity Loans"), and such amounts as may be held by
the Trustee in any accounts held by the Trustee for the Trust. The Home Equity
Loans are secured primarily by first and second deeds of trust or mortgages on
one- to four-family residential properties. A form of the Pooling and Servicing
Agreement has been filed as an exhibit to the Registration Statement.
The Certificates are more fully described in a Registration Statement
which the Depositor has furnished to the Underwriters. The Class A Certificates
will be entitled to the benefits of two certificate guaranty insurance policies
(the "Policies") issued by ________________ ("_____"). The Depositor and the
Seller will enter into an Insurance Agreement (the "Insurance Agreement") dated
as of _____________ among the Depositor, the Seller, the Trustee and
____________________. the Seller will also enter into an Indemnification
Agreement (the "Indemnification Agreement") dated as of _______________ among
the Underwriters, the Seller and ____________________, governing the liability
of the several parties with respect to the losses resulting from material
misstatements or omissions contained in the Prospectus Supplement.
Pursuant to the Pooling and Servicing Agreement, each Seller will
transfer to the Depositor and the Depositor will transfer to the Trust all of
its right, title and interest in and to the unpaid principal balances of the
Home Equity Loans as of the Cut-Off Date and interest due on and after the
Cut-Off Date and the collateral securing each Home Equity Loan.
SECTION 1. REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR. The
Depositor represents and warrants to, and agrees with the Underwriters that as
of the date hereof and as of the Closing Date:
(a) A Registration Statement on Form S-3 (No. 333-93255), has (i) been
prepared by the Depositor 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 and is still effective as of
the date hereof under the Securities Act. Copies of such Registration Statement
have been delivered by the Depositor to the Underwriters. 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 such final prospectus
dated __________ __; 2000; and "Prospectus Supplement" means the final
prospectus supplement relating to the Class A 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 and 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 (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
Depositor 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 or the effectiveness of the Registration
Statement and no proceedings for such purpose are pending or, to the Depositor's
knowledge, threatened by the Commission. There are no contracts or documents of
the Depositor which are required to be filed as exhibits to the Registration
Statement pursuant to the Securities Act or the Rules and Regulations 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 Depositor pursuant to
Section 8(d) hereof for filing on Form 8-K. The conditions for use of Form S-3,
as set forth in the General Instructions thereto, have been satisfied. To the
extent that any Underwriter has provided to the Depositor Computational
Materials that such Underwriter has provided to a prospective investor, the
Depositor will file or cause to be filed with the Commission a report on Form
8-K containing such Computational Materials, as soon as reasonably practicable
after the date of this Agreement, but in any event, not later than 11:00 a.m.
New York time the date on which the Prospectus is made available to the
Underwriter and is filed with the Commission pursuant to Rule 424 of the Rules
and Regulations.
(b) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, when they become effective or are filed with the
Commission, as the case may be, 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 that no representation or warranty is made as to (i) information
contained in or omitted from the Registration Statement or the Prospectus in
reliance upon and in conformity with written information furnished to the
Depositor in writing by any Underwriter through the Representative expressly for
use therein, it being understood that such information is limited to the
information set forth in the last paragraph of the cover page and in the first
two paragraphs under the caption "Underwriting" in the Prospectus Supplement
(the
"Underwriters' Information") or (ii) other than with respect to any Pool
Information, any information contained in any Collateral Term Sheet,
Structural Term Sheet, Series Term Sheet or Computational Materials (each as
defined in Section 5(b) below) in each case to the extent not included in the
Prospectus.
(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 equirements of the Securities Act
or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder; and 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.
(d) The Depositor is a Delaware limited liability company duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has all licenses necessary to carry on its business as now being
conducted. The Depositor 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 and the Insurance Agreement (the "Agreements") and to cause the
Certificates to be issued.
(e) There are no actions, proceedings or investigations pending with
respect to which the Depositor has received service of process before or
threatened by any court, administrative agency or other tribunal to which the
Depositor is a party or of which any of its properties is the subject (a) which
if determined adversely to the Depositor would have a material adverse effect on
the business or financial condition of the Depositor, (b) asserting the
invalidity of any of the Agreements or the Certificates, (c) seeking to prevent
the issuance of the Certificates or the consummation by the Depositor of any of
the transactions contemplated by any of the Agreements or (d) which might
materially and adversely affect the performance by the Depositor of its
obligations under, or the validity or enforceability of any of the Agreements or
the Certificates.
(f) This Agreement has been, and the other Agreements when executed and
delivered as contemplated hereby and thereby will have been, duly authorized,
executed and delivered by the Depositor, and this Agreement constitutes, and the
other Agreements when executed and delivered as contemplated herein will
constitute, legal, valid and binding instruments enforceable against the
Depositor 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.
(g) The execution, delivery and performance of the Agreements by the
Depositor and the consummation of the transactions contemplated hereby and
thereby, 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
Depositor is a party, by which the Depositor is bound or to which any of the
properties or assets of the Depositor 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 Depositor or its ability
to perform its obligations under any of the Agreements, nor will such actions
result in any violation of the provisions of the Certificate of Formation or
the Amended and Restated Limited Liability Company Agreement of the Depositor
or any statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Depositor 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 Depositor or
its ability to perform its obligations under any of the Agreements.
(h) The direction by the Depositor to the Trustee to execute,
authenticate, issue and deliver the Certificates has been or will have been duly
authorized by the Depositor, and, assuming the Trustee has been duly authorized
to undertake such actions, 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 the holders of the
Certificates will be entitled to the rights and benefits of the Certificates
as provided by the Pooling and Servicing Agreement.
(i) 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
Class A Certificates to the Underwriters, or the consummation by the Depositor
of the other transactions contemplated by the 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 Class A Certificates by the Underwriters or as have been
obtained.
(j) At the time of execution and delivery of the Pooling and Servicing
Agreement, the Depositor will: (i) have equitable title to the interest in the
Home Equity Loans conveyed by The Sellers, 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 (other than the
Trustee) any of its right, title or interest in the Home Equity Loans in the
Pooling and Servicing Agreement; and (iii) have the power and authority to sell
its interest in the Home Equity Loans to the Trustee and to sell the Class A
Certificates to the Underwriters. Upon execution and delivery of the Pooling and
Servicing Agreement by the Trustee, the Trustee will have acquired beneficial
ownership of all of the Depositor's title and interest in and to the Home Equity
Loans. Upon delivery to the Underwriters of the Class A Certificates, the
Underwriters will have good title to the Class A Certificates free of any Liens.
(k) 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.
(l) Neither the Depositor nor the Trust is 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.
(m) At the Closing Date, the Class A Certificates and the Pooling and
Servicing Agreement will conform in all material respects to the descriptions
thereof contained in the Prospectus.
(n) Any taxes, fees and other governmental charges in connection with
the execution, delivery and issuance of the Agreements and the Certificates have
been paid or will be paid at or prior to the Closing Date.
(o) 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
Depositor or either Seller, otherwise than as set forth or contemplated in the
Prospectus as supplemented or amended as of the Closing Date.
(p) Any certificate signed by an officer of the Depositor and delivered
to the Representative or counsel for the Representative in connection with an
offering of the Class A 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.
SECTION 2. PURCHASE AND SALE. The commitment of the Underwriters to
purchase the Class A 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
Depositor agrees to instruct the Trustee to issue the Certificates and agrees to
sell to the Underwriters, and the Underwriters agree (except as provided in
Sections 10 and 11 hereof) severally and not jointly to purchase from the
Depositor, the aggregate initial principal amounts or percentage interests of
the Class A Certificates of each Class, as set forth opposite their names on
Schedule A, at the purchase price or prices (plus accrued interest, as
appropriate) as set forth on Schedule A.
SECTION 3. DELIVERY AND PAYMENT. Delivery of and payment for the Class
A Certificates shall be made at the offices of Stroock & Stroock & ▇▇▇▇▇ LLP,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other place as shall be
agreed upon by the Representative and the Depositor at 10:00 a.m. New York City
time on __________ __, 2000 or at such other time or date as shall be agreed
upon in writing by the Representative and the Depositor (such date being
referred to as the "Closing Date"). Payment shall be made to the Depositor by
wire transfer of same day funds payable to the account of the Depositor.
Delivery of the Class A Certificates shall be made to the Representative for the
accounts of the Underwriters against payment of the purchase price thereof. The
Class A Certificates so delivered will be initially represented by one or more
certificates registered in the name of Cede & Co., the nominee of The Depository
Trust Company ("DTC"). The interests of the beneficial owners of the Class A
Certificates will be represented by book entries on the records of DTC and
participating members thereof. Definitive Certificates will be available only
under the limited circumstances specified in the Pooling and Servicing
Agreement. The Class A Certificates will be made available for examination by
the Underwriters no later than 2:00 p.m. New York City time on the Business Day
immediately prior to the Closing Date.
SECTION 4. OFFERING BY THE UNDERWRITERS. It is understood that, subject
to the terms and conditions hereof, the Underwriters propose to offer the Class
A Certificates for sale to the public as set forth in the Prospectus.
SECTION 5. AGREEMENTS. The Depositor agrees as follows:
(i) 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, 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 termination of the offering of the Class A Certificates
or any supplement to the Prospectus or any amended Prospectus has been filed and
to furnish the Underwriters or their counsel with copies thereof without charge;
to file promptly all reports and any definitive proxy or information statements
required to be filed by the Depositor with the Commission pursuant to Section
13(a), 13(c), 14 or l5(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 Class A Certificates; to promptly
advise the Underwriters of its receipt of notice of the issuance by the
Commission of any stop order or the institution of or, to the knowledge of the
Depositor, the threatening of any proceeding for such purpose, or of: (i) any
order preventing or suspending the use of the Prospectus; (ii) the suspension of
the qualification of the Class A Certificates for offering or sale in any
jurisdiction; (iii) the initiation of or threat of any proceeding for any such
purpose; or (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
Depositor promptly shall use its best efforts to obtain the withdrawal of such
order by the Commission.
(ii) 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.
(iii) To deliver promptly to the Underwriters without
charge 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 Closing
Date in connection with the offering or sale of the Class A 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 Depositor
shall notify the Underwriters and, upon any Underwriters' 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 Class A Certificates at any time nine
months or more after the Effective Time, upon the request of the Underwriters
but at their expense, the Depositor shall prepare and deliver to the
Underwriters as many copies as the Underwriters may reasonably request of an
amended or supplemented Prospectus complying with Section 10(a)(3) of the
Securities Act.
(iv) 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 Depositor or the Underwriters, be required by
the Securities Act or requested by the Commission. Neither the Underwriters'
consent to nor their distribution of any amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 6.
(v) 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) any Post-Effective Amendment to the Registration Statement or
supplement to the Prospectus, or document incorporated by reference in the
Prospectus, or (ii) Prospectus pursuant to Rule 424 of the Rules and
Regulations.
(vi) To use reasonable commercial efforts, in cooperation with
the Underwriters, to qualify the Class A 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 Class A Certificates. The Depositor will
file or cause the filing of such statements and reports as may be required by
the laws of each jurisdiction in which the Class A Certificates have been so
qualified; provided, however, that the Depositor shall not be required to
qualify to do business in any jurisdiction where it is not now so qualified or
to take any action which would subject it to general or unlimited service of
process in any jurisdiction where it is now so subject.
(vii) Not to permit, unless the Underwriters shall otherwise
have given their written consent, any collateralized mortgage obligations or
other similar securities representing interests in or secured by other non-prime
mortgage-related assets originated or owned by either Seller to be publicly
offered or sold, nor to permit either Seller to enter into any contractual
arrangements that contemplate the public offering or sale of such securities,
until the earlier to occur of the termination of the syndicate or the Closing
Date.
(viii) To cause, so long as the Class A Certificates shall
be outstanding, 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 7.08 of the Pooling and Servicing Agreement; and (iv) the monthly
reports furnished to the Certificateholders pursuant to Section 7.09 of the
Pooling and Servicing Agreement.
(a) Each Underwriter represents, warrants, covenants and agrees with
the Depositor that:
(i) It either (A) has not provided any potential investor with
a Collateral Term Sheet (that is required to be filed with the Commission within
two Business Days of first use under the terms of the Public Securities
Association Letter as described below), or (B) has, prior to its first delivery
of such Collateral
Term Sheet to a potential investor, delivered such Collateral Term Sheet to
the Depositor or its counsel and has substantially contemporaneously with its
first delivery of such Collateral Term Sheet to a potential investor,
delivered such Collateral Term Sheet to the Seller or its counsel, which
Collateral Term Sheet, if any is attached hereto as Exhibit A.
(ii) It either (A) has not provided any potential investor
with a Structural Term Sheet, Series Term Sheets or Computational Materials, or
(B) has, prior to its first delivery of any such Structural Term Sheet, Series
Term Sheets or Computational Materials to a potential investor, delivered such
Structural Term Sheet, Series Term Sheets or Computational Materials to the
Depositor or its counsel and has promptly provided any such Structural Term
Sheet, Series Term Sheets or Computational Materials to the Depositor or its
counsel, which Structural Term Sheet, Series Term Sheets and Computational
Materials, if any, are attached hereto as Exhibit B.
(iii) Each Collateral Term Sheet bears a legend indicating
that the information contained therein will be superseded by the description of
the collateral contained in the Prospectus Supplement and, except in the case of
the initial Collateral Term Sheet, that such information supersedes the
information in all prior Collateral Term Sheets.
(iv) Each Structural Term Sheet, Series Term Sheet and all
Computational Materials bear a legend substantially in the form which has been
agreed to by the Underwriters and the Depositor.
(v) It (at its own expense) agrees to obtain and provide to
the Depositor and the Seller one or more accountants' letters in form and
substance reasonably satisfactory to the Underwriters, the Depositor and the
Seller relating to the Collateral Term Sheets, Structural Term Sheets, Series
Term Sheets and Computational Materials, which accountants' letters shall be
addressed to the Depositor and the Seller.
(vi) It has not, and will not, without the prior written
consent of the Depositor, provide any Collateral Term Sheets, Structural Term
Sheets, Series Term Sheets or Computational Materials to any investor after the
date of this Agreement and prior to the delivery of the Prospectus to such
investor.
For purposes of this Agreement, Series Term Sheets, Collateral Term
Sheets and Structural Term Sheets shall have the respective meanings assigned
to them (a) in the case of Series Term Sheets, in the no-action letter
addressed to Greenwood Trust Company, Discover Card Master Trust I dated
April 5, 1996, and (b) in the case of Collateral Term Sheets and Structural
Term Sheets, in the February 13, 1995 letter of Cleary, Gottlieb, ▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ on behalf of the Public Securities Association (which letter, and
the SEC staff's response thereto, are publicly available February 17, 1995).
The term "Collateral Term Sheet" as used herein includes any subsequent
Collateral Term Sheet that reflects a substantive change in the information
presented. Computational Materials has the meaning assigned to it in the
no-action letter dated May 20, 1994 issued by the Division of Corporation
Finance of the Commission to ▇▇▇▇▇▇, Peabody Acceptance Corporation I,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Co. Incorporated, and ▇▇▇▇▇▇ Structured Asset Corporation,
the no-action letter dated May 27, 1994 issued by the Division of Corporation
Finance of the Commission to the Public Securities Association and the
no-action letter of February 17, 1995 issued by the Commission to the Public
Securities Association.
SECTION 6. CONDITIONS TO THE UNDERWRITERS' OBLIGATION. The obligations
of the Underwriters hereunder to purchase the Class A 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 Depositor herein
contained; (ii) the performance by the Depositor of all of its obligations
hereunder; and (iii) the following additional conditions as of the Closing Date:
(a) Each of the obligations of the Depositor required to be performed
by it on or prior to the Closing Date pursuant to the terms of the Agreements
shall have been duly performed and complied with and all of the representations
and warranties of the Depositor under any of the Agreements shall be true and
correct as of the Closing Date and no event shall have occurred which, with
notice or the passage of time, would
constitute a default under any of the Agreements, and the Underwriters shall
have received certificates to the effect of the foregoing, each signed by an
authorized officer of the Depositor.
(b) Prior to the Closing Date, (i) the Underwriters shall have received
confirmation of the effectiveness of the Registration Statement and (ii) 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 Depositor, shall be contemplated 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.
(c) The Representative shall have received a letter dated on or before
the date on which the Prospectus Supplement is dated and printed, in form and
substance acceptable to the Underwriters and their counsel, prepared by
________________ (a) regarding certain numerical information contained or
incorporated by reference in the Prospectus Supplement and (b) relating to
certain agreed upon procedures as requested by the Underwriters relating to the
Home Equity Loans.
(d) The Home Equity Loans shall be acceptable to ____________________,
▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's") and Standard & Poor's Ratings
Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("Standard & Poor's"),
in their sole discretion.
(e) The Representative shall have received the following additional
closing documents, in form and substance satisfactory to the Representative and
its counsel:
(i) the Agreements and all documents required thereunder, duly
executed and delivered by each of the parties thereto other than the
Underwriters and their affiliates;
(ii) an officer's certificate of an officer of the Seller, an
officer's certificate of an officer of the Seller LLC and an officer's
certificate of an officer of the Depositor, in each case dated as of the Closing
Date and reasonably satisfactory in form and substance to the Underwriters and
counsel for the Underwriters with resolutions of the applicable board of
directors and a copy of the charter and by-laws of the Seller and the Depositor,
as applicable, and a copy of the certificate of formation and membership
agreement of the Seller LLC, in each case attached thereto;
(iii) an opinion of ________________, ________________ of the
Seller or such other counsel reasonably acceptable to the Underwriters and
counsel for the Underwriters, dated the Closing Date, reasonably satisfactory in
form and substance to the Underwriters and counsel for the Underwriters as to
various matters relating to each Seller and the Depositor;
(iv) opinions of ______________________, counsel to the Seller
and the Depositor or such other counsel reasonably acceptable to the
Underwriters and counsel for the Underwriters, dated the Closing Date,
reasonably satisfactory in form and substance to the Underwriters and counsel
for the Underwriters as to various corporate matters;
(v) an opinion of Stroock & Stroock & ▇▇▇▇▇ LLP, special
counsel to the Seller, and the Depositor, or such other counsel reasonably
acceptable to the Underwriters and counsel for the Underwriters, dated the
Closing Date, reasonably satisfactory in form and substance to the Underwriters
and counsel for the Underwriters as to various corporate matters;
(vi) an opinion of _______________, counsel for the
Underwriters, dated the Closing Date, reasonably satisfactory in form and
substance to the Underwriters;
(vii) opinions of counsel for the Depositor, in forms
reasonably acceptable to the Underwriters, their counsel, Standard & Poor's and
Moody's as to such matters as shall be required for the assignment of a rating
to the Class A Certificates of "AAA" by Standard & Poor's, and "Aaa" by Moody's;
(viii) an opinion of _________________, counsel for the
Seller, dated the Closing Date, reasonably satisfactory in form and substance to
the Underwriters;
(ix) a letter from Moody's that it has assigned a rating of
"Aaa" to the Class A Certificates;
(x) a letter from Standard & Poor's that it has assigned a
rating of "AAA" to the Class A Certificates;
(xi) an opinion of counsel for the Trustee dated the Closing
Date, in form and substance reasonably acceptable to the Underwriters, their
counsel, Moody's and Standard & Poor's;
(xii) an officer's certificate of an officer of the Trustee,
dated as of the Closing Date, reasonably satisfactory in form and substance to
the Underwriters and counsel for the Underwriters;
(xiii) an opinion or opinions of counsel for
____________________ dated the Closing Date, in each case in form and substance
reasonably acceptable to the Underwriters, their counsel, Moody's and Standard &
Poor's; and
(xiv) an officer's certificate of an Authorized Officer of
__________________, dated as of the Closing Date reasonably satisfactory in form
and substance to the Underwriters and counsel for the Underwriters.
(f) The Policies shall have been duly executed, delivered and issued
with respect to the Class A Certificates and shall conform in all material
respects to the description thereof in the Prospectus Supplement as of the date
thereof.
(g) All proceedings in connection with the transactions contemplated by
this Agreement and all documents incident hereto shall be reasonably
satisfactory in form and substance to the Representative and its counsel.
(h) The Seller and the Depositor shall have furnished the
Representative with such other certificates of its officers or others and such
other documents or opinions as the Representative or its counsel may reasonably
request.
(i) 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 New York state
authorities; (iii) the United States shall have become engaged in material
hostilities, there shall have been an escalation of such hostilities involving
the United States or there shall have been a declaration of 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) which is material and adverse, and in the case of any of the events
specified in clauses (i), through (iv), such event makes it in the reasonable
judgment of the Representative, impractical to market the Certificates.
(j) 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 Depositor 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.
SECTION 7. PAYMENT OF EXPENSES. The Depositor 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; (c)
the costs of producing and distributing the Registration Statement as originally
filed and each amendment thereto and any post-effective amendments thereof
(including, in each case, exhibits), any preliminary prospectus, 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
Stroock & Stroock & ▇▇▇▇▇ LLP in qualifying the Certificates under the
securities laws of the several jurisdictions as provided in Section 5(a)(vi)
hereof and of preparing, printing and distributing a Blue Sky Memorandum and a
Legal Investment Survey; (f) any fees charged by securities rating services for
rating the Class A Certificates; (g) the cost of the accountant's comfort letter
relating to the Prospectus; and (h) all other costs and expenses incidental to
the performance of the obligations of the Depositor and the Seller (including
costs and expenses of counsel to the Depositor and the Seller); provided that,
except as provided in this Section 7, the Underwriters shall pay their own costs
and expenses, including the costs and expenses of their counsel, any transfer
taxes on the Class A Certificates which they may sell and the expenses of
advertising any offering of the Class A Certificates made by the Underwriters,
and the Underwriters shall pay the cost of any accountant's comfort letters
relating to any Computational Materials (as defined herein).
If this Agreement is terminated because of a breach by the Depositor of
any covenant or agreement hereunder including in accordance with Section 6 or
the failure of any closing condition set forth in Section 6 (other than the
closing condition set forth in Section 6(i)) to be met, the Depositor shall
cause the Underwriters to be reimbursed for all reasonable out of pocket
expenses, including fees and disbursements of _________________, counsel for the
Underwriters.
SECTION 8. INDEMNIFICATION AND CONTRIBUTION. The Depositor indemnifies
and holds harmless each Underwriter, each Underwriter's respective officers and
directors and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
as follows:
(i) against any and all losses, claims, expenses, damages
or liabilities, joint or several, to which such Underwriter or such
controlling person may become subject under the Securities Act or otherwise,
insofar as such losses, claims, expenses, damages or liabilities (or actions
in respect thereof including, but not limited to, any loss, claim, expense,
damage or liability related to purchases and sales of the Class A
Certificates) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration
Statement, the Prospectus, or any amendment or supplement thereto, or arise
out of, or are based upon, the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements made therein not misleading; and will reimburse each Underwriter
and each such controlling person for any legal or other expenses reasonably
incurred by such Underwriter or such controlling person in connection with
investigating or defending any such loss, claim, expense, damage, liability
or action as such expenses are incurred; PROVIDED, HOWEVER, that the
Depositor will not be liable in any such case to the extent that any such
loss, claim, expense, damage or liability arises out of or is based upon an
untrue statement or omission, or alleged untrue statement or omission, made
in any of such documents (x) in reliance upon and in conformity with any
Underwriters' Information or (y) in any Collateral Term Sheet, Structural
Term Sheet, Series Term Sheet or Computational Materials, except in the case
of this clause (y) to the extent that any untrue statement or omission or
alleged untrue statement or alleged omission therein results (or is alleged
to have resulted) from an error or material omission in the information
concerning the characteristics of the Home Equity Loans furnished by the
Seller, as applicable, to the Underwriters for use in the preparation of any
Collateral Term Sheet, Structural Term Sheet, Series Term Sheet and/or
Computational Materials (any such information, the "Pool Information"), which
error was not superseded or corrected by the delivery to the Underwriters of
corrected written or electronic information, or for which the Depositor did
not provide written notice of such error to the Underwriters prior to the
confirmation of the sale of the applicable Certificates (any such uncorrected
Pool Information, a "Pool Error");
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, to the extent of the aggregate amount paid in settlement of
any litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or of any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the written consent of the
Depositor; and
(iii) against any and all expense whatsoever (including the
fees and disbursements of counsel chosen by any such Underwriter), reasonably
incurred in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under clause (i) or clause (ii) above.
This indemnity agreement will be in addition to any liability which the
Depositor may otherwise have.
(a) Each Underwriter, severally and not jointly, agrees to indemnify
and hold harmless each of the Depositor, each of its directors, each of its
officers who have signed the Registration Statement and each person, if any,
who controls the Depositor within the meaning of Section 15 the Securities
Act or Section 20 the Exchange Act, against any and all losses, claims,
expenses, damages or liabilities to which the Depositor or any such director,
officer or controlling person may become subject, under the Securities Act 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 any material fact contained in (i) Derived
Information provided by such Underwriter (except to the extent resulting from
an uncorrected Pool Error) and (ii) the Registration Statement, the
Prospectus or any amendment or supplement thereto, or arise out of, or are
based upon, the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements made
therein not misleading, in each case to the extent, but with respect to
clause (b)(ii) above, only to the extent that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with any Underwriters' Information; and will reimburse
any legal or other expenses reasonably incurred by the Depositor or any such
director, officer or controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action. This indemnity
agreement will be in addition to any liability which such Underwriter may
otherwise have.
(b) Promptly after receipt by an indemnified party under this Section 8
of notice of the commencement of any action described therein, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
the indemnifying party from any liability that it may have to any indemnified
party otherwise than under this Agreement. 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 wish to do so, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party under this
Section 8, such indemnifying party shall not be liable for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and in respect of which
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 any claims that are the subject matter of such action.
(c) If the indemnification provided for in Section 8(a) or 8(b)(ii)
is unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a) or (b)
above (i) in such proportion as is appropriate to reflect the relative
benefits received by the Depositor on the one hand and the Underwriters on
the other from the offering of the Class A 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
Depositor 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 as well as any other relevant
equitable considerations. If the indemnification provided for in Section
8(b)(i) is unavailable or insufficient to hold harmless the indemnified party
under Section 8(b)(i), then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in Section (b)(i) in such
proportion as appropriate to reflect the relative fault of the Depositor on
one hand and the Underwriters on the other in connection with the statements
or omissions which resulted in such losses, claims, damages or liabilities as
well as any other relevant equitable considerations. The relative benefits
received by the Depositor on the one hand and the Underwriters on the other
shall be deemed to be in the same proportion as the total net proceeds from
the offering (before deducting expenses) received by the Depositor bear to
the total underwriting discounts and commissions received by the
Underwriters. 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 relates to
information supplied by the Depositor or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct
or prevent such untrue statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to above in the first sentence of 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 action or
claim which is the subject of this subsection (d). Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount of underwriting discounts and
commissions received by such Underwriter. 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. The Underwriters' obligations in this
subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(d) 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 contained or corrected in either (i) the Prospectus taking into
account information incorporated therein by reference (other than information
incorporated by reference from the Series Term Sheets, Collateral Term Sheets,
Structural Term Sheets and/or Computational Materials) or (ii) any Pool
Information.
(e) Each Underwriter agrees to deliver to the Depositor any Collateral
Term Sheets, Structural Term Sheets, Computational Materials and Series Term
Sheets which it has prepared in connection with the Class A Certificates prior
to the dissemination of such materials to any potential investor.
SECTION 9. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Agreement or contained in certificates of officers of the Depositor or the
Seller 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 Depositor, and shall
survive delivery of any Class A Certificates to the Underwriters.
SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more
of the Underwriters participating in the public offering of the Class A
Certificates shall fail at the Closing Date to purchase the Class A Certificates
which it is (or they are) obligated to purchase hereunder (the "Defaulted
Certificates"), then the non-defaulting Underwriters shall have the right,
within 24 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. If, however, the Underwriters have not
completed such arrangements within such 24-hour period, then
(i) if the aggregate principal amount of Defaulted
Certificates does not exceed 10% of the aggregate principal amount of the Class
A 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 underwriting obligations
hereunder bear to the underwriting obligations of all such non-defaulting
Underwriters, or
(ii) if the aggregate principal amount of Defaulted
Certificates exceeds 10% of the aggregate principal amount of the Class A
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 10 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 10, each of the Underwriters and the Depositor shall have the right to
postpone the Closing Date for a period not exceeding five 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 11. TERMINATION OF AGREEMENT. The Underwriters may terminate
this Agreement immediately upon notice to the Depositor, at any time at or prior
to the Closing Date if the events set forth in Section 6(i) of this Agreement
shall occur and be continuing, or if any other closing condition set forth in
Section 6 shall not have been fulfilled when required to be fulfilled. In the
event of any such termination, the provisions of Section 7, the indemnity and
contribution agreements set forth in Section 8, and the provisions of Sections
9, 14 and 16 shall remain in effect.
SECTION 12. NOTICES. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail, telex
or facsimile transmission to ____________________; and
(b) if to the Depositor or the Seller, shall be delivered or sent by
mail, telex or facsimile transmission to care of CHEC Funding LLC, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇.
SECTION 13. PERSONS ENTITLED TO THE BENEFIT OF THIS AGREEMENT. This
Agreement shall inure to the benefit of and be binding upon the Underwriters,
the Seller, and the Depositor, 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 each Underwriter's respective officers and directors and for the benefit
of directors of the Depositor, officers of the Depositor who have signed the
Registration Statement and any person controlling the Depositor 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 13, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained herein.
SECTION 14. SURVIVAL. The respective indemnities, representations,
warranties and agreements of the Depositor and the Underwriters contained in
this Agreement, or made by or on 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.
SECTION 15. 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 16. GOVERNING LAW: SUBMISSION TO JURISDICTION; WAIVER OF JURY
TRIAL. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York without giving effect to the principles of
conflicts of law thereof.
The parties hereto hereby 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.
The parties hereto hereby irrevocably waive, to the fullest extent
permitted by law, any and all rights to trial by jury in any legal proceeding
arising out of or relating to this Agreement or the transactions contemplated
hereby.
SECTION 17. 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 18. 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 19. OBLIGATIONS OF THE SELLER. the Seller agrees with the
Underwriters, for the sole and exclusive benefit of each such Underwriter,
each such Underwriter's officers and directors and each person controlling
such Underwriter within the meaning of the Securities Act, and not for the
benefit of any assignee thereof or any other person or persons dealing with
such Underwriter as follows: in consideration of and as an inducement to
their agreement to purchase the Class A Certificates from the Depositor, to
indemnify and hold harmless each Underwriter against any failure by the
Depositor to perform its obligations to the Underwriters hereunder,
including, without limitation, any failure by the Depositor to honor any
obligation to any Underwriter pursuant to Section 8 hereof. In the case of
any claim against the Seller by any Underwriter, any officer or director of
any Underwriter or any person controlling any Underwriter, it shall not be
necessary for such claimant to first pursue any remedy from or exhaust any
procedures against the Depositor.
If the foregoing correctly sets forth the agreement between the
Depositor and the Underwriters, please indicate your acceptance in the space
provided for the purpose below.
Very truly yours,
CHEC FUNDING, LLC
By: _______________________________
Name:
Title:
SOLELY WITH RESPECT TO SECTION 19
CENTEX CREDIT CORPORATION d/b/a
CENTEX HOME EQUITY
CORPORATION`
By: _______________________________
Name:
Title:
CONFIRMED AND ACCEPTED, as of the date first above written:
--------------------------
Acting on its own behalf and as
Representative of the Underwriters
referred to in the foregoing Agreement
By: ___________________________________
Name:
Title:
SCHEDULE A
Class A-1 Certificates
Underwriting
Underwriters Discount Principal Amount
------------ -------- ----------------
% $
% $
Class A-2 Certificates
Underwriting
Underwriters Discount Principal Amount
------------ -------- ----------------
% $
% $
Class A-3 Certificates
Underwriting
Underwriters Discount Principal Amount
------------ -------- ----------------
% $
% $
Class A-4 Certificates
Underwriting
Underwriters Discount Principal Amount
------------ -------- ----------------
% $
% $
Class A-5 Certificates
Underwriting
Underwriters Discount Principal Amount
------------ -------- ----------------
% $
% $
Class A-6 Certificates
Underwriting
Underwriters Discount Principal Amount
------------ -------- ----------------
% $
% $
Class A-7 Certificates
Underwriting
Underwriters Discount Principal Amount
------------ -------- ----------------
% $