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AMRESCO RESIDENTIAL SECURITIES CORPORATION
AND
XXXXXX XXXXXXX & CO. INCORPORATED
As Representative of the several Underwriters
UNDERWRITING AGREEMENT
FOR
AMRESCO RESIDENTIAL SECURITIES CORPORATION MORTGAGE LOAN TRUST 1997-3
MORTGAGE LOAN PASS THROUGH CERTIFICATES,
6.75% CLASS A-1 FIXED RATE CERTIFICATES
6.61% CLASS A-2 FIXED RATE CERTIFICATES
6.60% CLASS A-3 FIXED RATE CERTIFICATES
6.68% CLASS A-4 FIXED RATE CERTIFICATES
6.88% CLASS A-5 FIXED RATE CERTIFICATES
6.98% CLASS A-6 FIXED RATE CERTIFICATES
7.14% CLASS A-7 FIXED RATE CERTIFICATES
7.60% CLASS A-8 FIXED RATE CERTIFICATES
6.96% CLASS A-9 FIXED RATE CERTIFICATES
CLASS A-10 ADJUSTABLE RATE CERTIFICATES
7.24% CLASS M-1F FIXED RATE CERTIFICATES
CLASS M-1A ADJUSTABLE RATE CERTIFICATES
7.47% CLASS M-2F FIXED RATE CERTIFICATES
CLASS M-2A ADJUSTABLE RATE CERTIFICATES
7.77% CLASS B-1F FIXED RATE CERTIFICATES
CLASS B-1A ADJUSTABLE RATE CERTIFICATES
September 5, 1997
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AMRESCO RESIDENTIAL SECURITIES CORPORATION MORTGAGE LOAN TRUST 1997-3
MORTGAGE LOAN PASS THROUGH CERTIFICATES,
6.75% CLASS A-1 FIXED RATE CERTIFICATES
6.61% CLASS A-2 FIXED RATE CERTIFICATES
6.60% CLASS A-3 FIXED RATE CERTIFICATES
6.68% CLASS A-4 FIXED RATE CERTIFICATES
6.88% CLASS A-5 FIXED RATE CERTIFICATES
6.98% CLASS A-6 FIXED RATE CERTIFICATES
7.14% CLASS A-7 FIXED RATE CERTIFICATES
7.60% CLASS A-8 FIXED RATE CERTIFICATES
6.96% CLASS A-9 FIXED RATE CERTIFICATES
CLASS A-10 ADJUSTABLE RATE CERTIFICATES
7.24% CLASS M-1F FIXED RATE CERTIFICATES
CLASS M-1A ADJUSTABLE RATE CERTIFICATES
7.47% CLASS M-2F FIXED RATE CERTIFICATES
CLASS M-2A ADJUSTABLE RATE CERTIFICATES
7.77% CLASS B-1F FIXED RATE CERTIFICATES
CLASS B-1A ADJUSTABLE RATE CERTIFICATES
UNDERWRITING AGREEMENT
September 5, 1997
Xxxxxx Xxxxxxx & Co. Incorporated
as Representative of the
several Underwriters
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Ladies and Gentlemen:
AMRESCO Residential Securities Corporation (the "Depositor"), a
Delaware corporation, has authorized the issuance and sale of Mortgage Loan
Pass-Through Certificates, Class A-1, Class A-2, Class A-3, Class A-4, Class
A-5, Class A-6, Class A-7, Class A-8, Class A-9 and Class A-10 (the "Class A
Certificates"), Class M-1F and Class M-1A (the "Class M-1 Certificates"), Class
M-2F and Class M-2A (the "Class M-2 Certificates" and, collectively with the
Class M-1 Certificates, the "Mezzanine Certificates"), Class B-1F and Class
B-1A (the "Class B-1 Certificates"), the Class B-2F Certificates, Class C-FIO
and Class C-AIO Certificates (collectively, the "Class C-IO Certificates" and,
collectively, with the Mezzanine Certificates, the Class B-1 Certificates and
the Class B-2F Certificates, the "Subordinate Certificates") and the Class S
Certificates, the Class D and the Class R Certificates (the "Retained
Certificates," and, collectively with the Class A Certificates and the
Subordinate Certificates, the "Certificates"), evidencing interests in a pool
of fixed and adjustable rate mortgage loans (the "Mortgage Loans"). The
Mortgage Loans are secured primarily by first and second deeds of trust or
mortgages on one- to four-family residential properties. The Class A
Certificates, the Mezzanine Certificates and the Class B-1 Certificates
(collectively, the "Offered Certificates") will be publicly offered pursuant to
the Prospectus described below. The Class B-2 Certificates, the Class C-IO
Certificates and the Retained Certificates will not be publicly offered.
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Only the Offered Certificates are being purchased by the Underwriters
named in Schedule A hereto, and the Underwriters are purchasing, severally,
only the Offered Certificates set forth opposite their names in Schedule A,
except that the amounts purchased by the Underwriters may change in accordance
with Section X of this Agreement. Xxxxxx Xxxxxxx & Co. Incorporated is acting
as representative of the several Underwriters and in such capacity, is
hereinafter referred to as the "Representative."
The Certificates will be issued under a pooling and servicing
agreement (the "Pooling and Servicing Agreement"), dated as of September 1,
1997 among the Depositor, AMRESCO Residential Capital Markets, Inc., as Seller
(the "Seller"), Advanta Mortgage Corp. USA ("Advanta"), Long Beach Mortgage
Company ("Long Beach") and Option One Mortgage Corporation ("Option One") as
Servicers (the "Servicers") and The Bank of New York, as trustee (the
"Trustee"). The Certificates will evidence fractional undivided interests in
the trust (the "Trust"). The assets of the Trust will initially include, among
other things, a pool of fixed and adjustable rate Mortgage Loans (the "Initial
Mortgage Loans") and such amounts as may be held by the Trustee in the
Pre-Funding Account (the "Pre-Funding Account"), the Capitalized Interest
Account (the "Capitalized Interest Account") and any other accounts held by the
Trustee for the Trust. The Initial Mortgage Loans will be acquired, in part,
from the various Originators pursuant to the various "Transfer Agreements" as
such term is defined in the Pooling and Servicing Agreement.
On the Closing Date, approximately $137,300,000 will be deposited by
the Depositor in the name of the Trustee in the Pre-Funding Account from the
sale of the Certificates. It is intended that additional Mortgage Loans
satisfying the criteria specified in the Pooling and Servicing Agreement (the
"Subsequent Mortgage Loans") will be purchased by the Trust for inclusion in
the Trust from the Depositor from time to time on or before October 31, 1997
from funds on deposit in the Pre-Funding Account at the time of execution and
delivery of each Subsequent Transfer Agreement ("Subsequent Transfer
Agreement"). Funds in the Capitalized Interest Account will be applied by the
Trustee to cover shortfalls in interest during the Funding Period. The
Certificates will initially represent an undivided ownership interest in the
sum of (i) a pool of Initial Mortgage Loans in an amount of $812,653,659.64 as
of the close of business on September 1, 1997 (the "Cut-Off Date") and (ii)
approximately $137,300,000 on deposit in the Pre-Funding Account. A form of
the Pooling and Servicing Agreement has been filed as an exhibit to the
Registration Statement (hereinafter defined).
The Offered Certificates are more fully described in a Registration
Statement which the Depositor has furnished to the Underwriters. Capitalized
terms used but not defined herein shall have the meanings given to them in the
Pooling and Servicing Agreement.
SECTION I. Representations and Warranties of the Depositor. The
Depositor represents and warrants to, and agrees with the Underwriters that:
A. A Registration Statement on Form S-3 (No. 333-30759, has (i)
been prepared by the Depositor in conformity with the requirements of the
Securities Act of 1933 (the "Securities Act") and the rules and regulations
(the "Rules and Regulations") of the United States Securities and Exchange
Commission (the "Commission") thereunder, (ii) been filed with the Commission
under the Securities Act and (iii) become effective under the Securities Act.
Copies of such Registration Statement have been delivered by the Depositor to
the Representative. As used in this Agreement, "Effective Time" means the date
and the time as of which such Registration Statement, or the most recent
post-effective amendment thereto, if any, was declared effective by the
Commission; "Effective Date" means the date of the Effective Time;
"Registration Statement" means such registration statement, at the Effective
Time, including any documents incorporated by reference therein at such time;
"Basic Prospectus" means such final prospectus dated September 4, 1997; and
"Prospectus Supplement" means the final prospectus supplement relating
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to the Offered Certificates, to be filed with the Commission pursuant to
paragraphs (2), (3) or (5) of Rule 424(b) of the Rules and Regulations.
"Prospectus" means the Basic Prospectus together with the Prospectus
Supplement. Reference made herein to the Prospectus shall be deemed to refer
to and include any documents incorporated by reference therein pursuant to Item
12 of Form S-3 under the Securities Act as of the date of the Prospectus, any
reference to any amendment or supplement to the Prospectus shall be deemed to
refer to and include any document filed under the Securities Exchange Act of
1934 (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. 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 VIII D hereof for filing on Form 8-K.
B. The Registration Statement conforms, and the Prospectus and
any further amendments or supplements to the Registration Statement or the
Prospectus will, when they become effective or are filed with the Commission,
as the case may be, conform in all respects to the requirements of the
Securities Act and the Rules and Regulations. The Registration Statement, as of
the Effective Date thereof and of any amendment thereto, did not contain an
untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading. The Prospectus as of its date, and as amended or supplemented as of
the Closing Date does not and will not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that no representation or warranty is made as to
information contained in or omitted from the Registration Statement or the
Prospectus in reliance upon and in conformity with written information
furnished to the Depositor in writing by the Underwriters expressly for use
therein.
C. The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Securities
Act or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; 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 and will 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;
provided that no representation is made as to documents deemed to be
incorporated by reference in the Prospectus as the result of filing a Form 8-K
at the request of the Underwriters except to the extent such documents reflect
information furnished by the Depositor to the Underwriters for the purpose of
preparing such documents.
D. Since the respective dates as of which information is given in
the Prospectus, there has not been any material adverse change, or any
development involving a prospective material adverse change, in the general
affairs, management, financial condition, or results of operations of the
Depositor, otherwise than as set forth or contemplated in the Prospectus as
supplemented or amended as of the Closing Date.
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E. The Depositor has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its jurisdiction
of incorporation, is duly qualified to do business and is in good standing as a
foreign corporation in each jurisdiction in which its ownership or lease of
property or the conduct of its business requires such qualification, and has
all power and authority necessary to own or hold its properties, to conduct the
business in which it is engaged and to enter into and perform its obligations
under this Agreement, the Pooling and Servicing Agreement or any Subsequent
Transfer Agreement and to cause the Certificates to be issued.
F. 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 this Agreement, the Pooling and Servicing Agreement, the
Certificates, or any Subsequent Transfer Agreement, (c) seeking to prevent the
issuance of the Certificates or the consummation by the Depositor of any of the
transactions contemplated by the Pooling and Servicing Agreement, this
Agreement or any Subsequent Transfer Agreement, as the case may be, (d) which
might individually or in the aggregate materially and adversely affect the
performance by the Depositor of its obligations under, or the validity or
enforceability of, the Pooling and Servicing Agreement, and this Agreement, the
Certificates or any Subsequent Transfer Agreement or (e) which might adversely
affect the federal income tax attributes of the Certificates as described in
the Prospectus.
G. This Agreement has been, and the Pooling and Servicing
Agreement and each Subsequent Transfer Agreement 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 Pooling and
Servicing Agreement 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, limitations of public policy under applicable securities
laws.
H. The execution, delivery and performance of this Agreement, the
Pooling and Servicing Agreement and any Subsequent Transfer Agreement by the
Depositor and the consummation of the transactions contemplated hereby and
thereby, compliance with the provisions thereof, and the issuance and delivery
of the Certificates do not and will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the 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, nor will such actions result in any violation of the provisions of
the articles of incorporation or by-laws of the Depositor (which breach or
violation would have a material adverse effect on the business, operations or
financial condition 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. The Depositor is not a
party to, bound by, or in breach or violation of, any indenture or other
agreement or instrument, or subject to or in violation of any statute, order,
rule or regulation of any court, governmental agency or body or other tribunal
having jurisdiction over the Depositor, which materially and adversely affects,
or is reasonably likely in the future to materially and adversely affect, (i)
the ability of the Depositor to perform its obligations under this Agreement
and the Pooling and Servicing Agreement or (ii) the business, operations,
results of operations, financial position, income, properties or assets of the
Depositor.
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I. The Depositor has no reason to know that Deloitte & Touche,
LLP are not independent public accountants with respect to the Depositor as
required by the Securities Act and the Rules and Regulations.
J. The direction by the Depositor to the Trustee to execute,
authenticate, issue and deliver the Certificates has been duly authorized by
the Depositor, and assuming the Trustee has been duly authorized to do so, when
executed, authenticated, issued and delivered by the Trustee in accordance with
the Pooling and Servicing Agreement, the Certificates will be validly issued
and outstanding and will be entitled to the benefits provided by the Pooling
and Servicing Agreement.
K. No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body of the United
States is required for the issuance of the Certificates and the sale of the
Offered Certificates to the Underwriters, or the consummation by the Depositor
of the other transactions contemplated by this Agreement, the Pooling and
Servicing Agreement and any Subsequent Transfer Agreement, except such
consents, approvals, authorizations, registrations or qualifications as may be
required under State securities or Blue Sky laws in connection with the
purchase and distribution of the Offered Certificates by the Underwriters or as
have been obtained.
L. The Depositor possesses all material licenses, certificates,
authorities or permits issued by the appropriate State, Federal or foreign
regulatory agencies or bodies necessary to conduct the business now conducted
by it and as described in the Prospectus, and there are no proceedings pending
with respect to which the Depositor has received service of process or, to the
best knowledge of the Depositor threatened, relating to the revocation or
modification of any such license, certificate, authority or permit which if
decided adversely to the Depositor would, singly or in the aggregate,
materially and adversely affect the conduct of its business, operations or
financial condition.
M. At the time of execution and delivery of the Pooling and
Servicing Agreement, the Depositor will: (i) have good title to the Initial
Mortgage Loans 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
or title in the Initial Mortgage Loans, in the Pooling and Servicing Agreement
or in the Certificates being issued pursuant thereto; and (iii) have the power
and authority to sell its interest in the Initial Mortgage Loans to the Trustee
and to sell the Offered 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 right, title
and interest in and to the Initial Mortgage Loans. Upon delivery to the
Underwriters of the Offered Certificates, the Underwriters will have good title
to the Offered Certificates, free of any Liens.
N. At the time of execution and delivery of any Subsequent
Transfer Agreement, the Depositor will: (i) have good title to the Subsequent
Mortgage Loans conveyed by the Seller, free and clear of any Liens; (ii) not
have assigned to any person any of its right or title in the Subsequent
Mortgage Loans or in the Pooling and Servicing Agreement; and (iii) have the
power and authority to sell the Subsequent Mortgage Loans to the Trustee. Upon
execution and delivery of the Subsequent Transfer Agreement by the Trustee, the
Trustee will have acquired beneficial ownership of all of the Depositor's
right, title and interest in and to the Subsequent Mortgage Loans.
O. As of the Cut-Off Date, each of the Initial Mortgage Loans
will meet the eligibility criteria described in the Prospectus and will conform
to the descriptions thereof contained in the Prospectus.
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P. As of any Subsequent Transfer Date, each of the Subsequent
Mortgage Loans will meet the eligibility criteria described in the Prospectus
and will conform to the descriptions thereof contained in the Pooling and
Servicing Agreement.
Q. Neither the Depositor nor the Trust created by the Pooling and
Servicing Agreement 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.
R. At the Closing Date, the Offered Certificates, each Transfer
Agreement and the Pooling and Servicing Agreement will conform in all material
respects to the descriptions thereof contained in the Prospectus.
S. At the Closing Date, the Class A Certificates shall have been
rated in the highest rating category by Xxxxx'x Investors Service, Inc.
("Moody's"), Standard & Poor's, a division of the XxXxxx-Xxxx Companies
("Standard & Poor's"), Fitch Investors Service, L.P. ("Fitch") and Duff &
Xxxxxx Credit Rating Co. ("DCR"). In addition, the Class M-1, Class M-2 and
Class B-1 Certificates shall receive ratings of at least "Xx0," "X0" and
"Baa3," respectively from Moody's and at least "AA," "A" and "BBB-,"
respectively, from each of Standard & Poor's, Fitch and DCR.
T. Any taxes, fees and other governmental charges in connection
with the execution, delivery and issuance of this Agreement, the Pooling and
Servicing Agreement and the Certificates have been paid or will be paid at or
prior to the Closing Date.
U. At the Closing Date, each of the representations and
warranties of the Depositor set forth in the Pooling and Servicing Agreement
will be true and correct in all material respects.
V. The transfer of the Initial Mortgage Loans to the Trust at the
Closing Date and Subsequent Mortgage Loans on each Subsequent Transfer Date,
will be treated by the Depositor for financial accounting and reporting
purposes as a sale of assets and not as a pledge of assets to secure debt.
W. The Depositor is not aware of (i) any request by the
Commission for any further amendment of the Registration Statement or the
Prospectus or for any additional information, or (ii) any notification with
respect to the suspension of the qualification of the Certificates for sale in
any jurisdiction or the initiating or threatening of any proceeding for such
purpose.
X. The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended.
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 Offered Certificates shall be deemed, and shall state that it
is, a representation and warranty as to the matters covered thereby to each
person to whom the representations and warranties in this Section I are made.
SECTION II. Purchase and Sale. The commitment of the Underwriters to
purchase the Offered Certificates pursuant to this Agreement shall be deemed to
have been made on the basis of the representations and warranties herein
contained and shall be subject to the terms and conditions herein set forth.
The Depositor agrees to instruct the Trustee to issue the Offered Certificates
and agrees to sell to the Underwriters, and the Underwriters agree (except as
provided in Sections X and XI hereof) severally and not jointly to purchase
from the Depositor the aggregate initial principal amounts or percentage
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interests of the Offered Certificates set forth opposite their names on
Schedule A, at the purchase price or prices set forth in Schedule A.
SECTION III. Delivery and Payment. Delivery of and payment for the
Offered Certificates to be purchased by the Underwriters shall be made at the
offices of Xxxxx & Xxxxxx in Irvine, California, or at such other place as
shall be agreed upon by the Representative and the Depositor at 9:00 A.M.
pacific standard time on September 17, 1997 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 Offered Certificates shall be made to the
Representative for the accounts of the Underwriters against payment of the
purchase price thereof. The Certificates shall be in such authorized
denominations and registered in such names as the Underwriters may request in
writing at least two business days prior to the Closing Date. The Offered
Certificates will be made available for examination by the Representative no
later than 2:00 p.m. eastern time on the first business day prior to the
Closing Date.
SECTION IV. Offering by the Underwriters. It is understood that,
subject to the terms and conditions hereof, the Underwriters propose to offer
the Offered Certificates for sale to the public as set forth in the Prospectus.
SECTION V. Covenants of the Depositor. The Depositor agrees as
follows:
A. To prepare the Prospectus in a form approved by the
Underwriters and to file such Prospectus pursuant to Rule 424(b) under the
Securities Act not later than the Commission's close of business on the second
business day following the availability of the Prospectus to the Underwriters;
to make no further amendment or any supplement to the Registration Statement or
to the Prospectus prior to the Closing Date except as permitted herein; to
advise the Underwriters, promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or becomes
effective prior to the Closing Date or any supplement to the Prospectus or any
amended Prospectus has been filed prior to the Closing Date and to furnish the
Underwriters with copies thereof; to file promptly all reports and any
definitive proxy or information statements required to be filed by the
Depositor with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act subsequent to the date of the Prospectus and, for so long as
the delivery of a prospectus is required in connection with the offering or
sale of the Offered Certificates; to promptly advise the Underwriters of its
receipt of notice of the issuance by the Commission of any stop order or of:
(i) any order preventing or suspending the use of the Prospectus; (ii) the
suspension of the qualification of the Offered Certificates for offering or
sale in any jurisdiction; (iii) the initiation of or threat of any proceeding
for any such purpose; (iv) any request by the Commission for the amending or
supplementing of the Registration Statement or the Prospectus or for additional
information. In the event of the issuance of any stop order or of any order
preventing or suspending the use of the Prospectus or suspending any such
qualification, the Depositor promptly shall use its best efforts to obtain the
withdrawal of such order by the Commission.
B. To furnish promptly to the Underwriters and to counsel for the
Underwriters a signed copy of the Registration Statement as originally filed
with the Commission, and of each amendment thereto filed with the Commission,
including all consents and exhibits filed therewith.
C. To deliver promptly to the Underwriters such number of the
following documents as the Underwriters shall reasonably request: (i) conformed
copies of the Registration Statement as originally filed with the Commission
and each amendment thereto (in each case including exhibits); (ii) the
Prospectus and any amended or supplemented Prospectus; and (iii) any document
incorporated by reference in the
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Prospectus (including exhibits thereto). If the delivery of a prospectus is
required at any time prior to the expiration of nine months after the Effective
Time in connection with the offering or sale of the Offered Certificates, and
if at such time any events shall have occurred as a result of which the
Prospectus as then amended or supplemented would include any untrue statement
of a material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if for any
other reason it shall be necessary during such same period to amend or
supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the
Securities Act or the Exchange Act, the Depositor shall notify the Underwriters
and, upon any Underwriter's request, shall file such document and prepare and
furnish without charge to the Underwriters and to any dealer in securities as
many copies as the Underwriters may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which corrects such
statement or omission or effects such compliance, and in case the Underwriters
are required to deliver a Prospectus in connection with sales of any of the
Offered Certificates at any time nine months or more after the Effective Time,
upon the request of an Underwriter but at its expense, the Depositor shall
prepare and deliver to such Underwriter as many copies as such Underwriter may
reasonably request of an amended or supplemented Prospectus complying with
Section 10(a)(3) of the Securities Act. If such amendment or supplement to the
Prospectus is required to be contained in a post-effective amendment to the
Registration Statement, the Depositor will use its best efforts to cause such
amendment of the Registration Statement to be made effective as soon as
possible.
D. To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the Prospectus
that may, in the judgment of the Depositor or the Underwriters, be required by
the Securities Act or requested by the Commission.
E. To furnish the Underwriters and counsel for the Underwriters,
prior to filing with the Commission, and to obtain the consent of the
Underwriters for the filing of the following documents relating to the
Certificates: (i) amendment to the Registration Statement or supplement to the
Prospectus, or document incorporated by reference in the Prospectus, or (ii)
Prospectus pursuant to Rule 424 of the Rules and Regulations.
F. To make generally available to holders of the Offered
Certificates as soon as practicable, but in any event not later than 90 days
after the close of the period covered thereby, a statement of earnings of the
Trust (which need not be audited) complying with Section 11(a) of the
Securities Act and the Rules and Regulations (including, at the option of the
Depositor, Rule 158) and covering a period of at least twelve consecutive
months beginning not later than the first day of the first fiscal quarter
following the Closing Date.
G. To use its best efforts, in cooperation with the Underwriters,
to qualify the Offered Certificates for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States or
elsewhere as the Underwriters may designate, and maintain or cause to be
maintained such qualifications in effect for as long as may be required for the
distribution of the Offered Certificates. The 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 Offered Certificates have been so qualified.
H. So long as the Offered Certificates shall be outstanding the
Depositor shall cause the Trustee, pursuant to the Pooling and Servicing
Agreement, to deliver to the Underwriters as soon as such statements are
furnished to the Trustee: (i) the annual statement as to compliance delivered
to the Trustee pursuant to Section 8.16 of the Pooling and Servicing Agreement;
(ii) the annual statement of a firm of independent public accountants furnished
to the Trustee pursuant to Section 8.17 of the Pooling and
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Servicing Agreement; (iii) the monthly servicing report furnished to the
Trustee pursuant to Section 8.29 of the Pooling and Servicing Agreement; (iv)
the monthly reports furnished to the Owners of the Offered Certificates
pursuant to Section 7.09 of the Pooling and Servicing Agreement; and (v) from
time to time, any other information concerning the Trust filed with any
government or regulatory authority that is otherwise publicly available, as the
Representative may reasonably request.
I. To apply the net proceeds from the sale of the Offered
Certificates in the manner set forth in the Prospectus.
J. During a period of seven calendar days from the Closing Date,
neither the Depositor nor any trust established, directly or indirectly, by the
Depositor will, without the Representative's prior written consent (which
consent shall not be unreasonably withheld), offer or sell mortgage
pass-through certificates backed by mortgage loans, except pursuant to this
Agreement.
K. The Depositor will enter into the applicable agreements, to
which it is a party pursuant to the Pooling and Servicing Agreement, on or
prior to the Closing Date.
L. On each Subsequent Transfer Date, the Depositor shall cause
its special counsel to deliver a favorable opinion substantially to the effect
set forth in Section VI.G (except as it applies to subdivisions 5 and 6
therein) hereof, appropriately modified to refer to the applicable Subsequent
Mortgage Loans, Subsequent Transfer Agreement, Subsequent Cut-Off Date and
Subsequent Transfer Date.
M. The Depositor will cause the Computational Materials (as
defined in Section VIII.D below) with respect to the Certificates which are
delivered to the Depositor as provided in Section VIII.D below to be filed with
the Commission on a Current Report on Form 8-K (the "Current Report") not later
than the date on which such materials are required to be filed pursuant to the
Xxxxxx/PSA Letters (as defined in Section VIII.D below) or as otherwise
required by the Commission.
SECTION VI. Conditions to the Underwriters' Obligations. The
obligations of the Underwriters to purchase the Offered Certificates pursuant
to this Agreement are subject to: (i) the accuracy on and as of the Closing
Date of the representations and warranties on the part of the Depositor herein
contained (including those representations and warranties set forth in the
Pooling and Servicing Agreement and incorporated herein); (ii) the performance
by the Depositor of all of its obligations hereunder; (iii) the accuracy of the
statements of the Depositor made in any certificate or other document delivered
pursuant to the provisions hereof; and (iv) the following conditions as of the
Closing Date:
A. The Underwriters shall have received confirmation of the
effectiveness of the Registration Statement. No stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have been
issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission. Any request of the Commission for inclusion of
additional information in the Registration Statement or the Prospectus shall
have been complied with. The Prospectus shall have been filed pursuant to Rule
424(b).
B. The Underwriters shall not have discovered and disclosed to
the Depositor 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
Xxxxxxxxxx, counsel for the Underwriters, is material and is required to be
stated therein or is necessary to make the statements therein not misleading.
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C. All corporate proceedings and other legal matters relating to
the authorization, form and validity of this Agreement, the Pooling and
Servicing Agreement, the Certificates, the Registration Statement and the
Prospectus, and all other legal matters relating to this Agreement and the
transactions contemplated hereby shall be satisfactory in all respects to
counsel for the Underwriters, and the Depositor shall have furnished to such
counsel all documents and information that they may reasonably request to
enable them to pass upon such matters. The Representative shall have received
the Pooling and Servicing Agreement and the Offered Certificates in form and
substance satisfactory to the Representative, duly executed by all signatories
required pursuant to the respective terms thereof.
X. Xxxxx & Xxxxxx shall have furnished to the Underwriters their
written opinion, as counsel to the Depositor, addressed to the Underwriters and
dated the Closing Date, in form and substance satisfactory to the Underwriters,
to the effect that:
1. The conditions to the use by the Depositor of a registration
statement on Form S-3 under the Securities Act, as set forth in the General
Instructions to Form S-3, have been satisfied with respect to the Registration
Statement and the Prospectus.
2. The Registration Statement and any amendments thereto have
become effective under the 1933 Act; to the best of such counsel's knowledge,
no stop order suspending the effectiveness of the Registration Statement has
been issued and not withdrawn and no proceedings for that purpose have been
instituted or threatened and not terminated; and the Registration Statement,
the Prospectus and each amendment or supplement thereto, as of their respective
effective or issue dates (other than the financial and statistical information
contained therein, as to which such counsel need express no opinion), complied
as to form in all material respects with the applicable requirements of the
1933 Act and the rules and regulations thereunder, and such counsel does not
know of any amendment to the Registration Statement required to be filed.
3. There are no material contracts, indentures or other documents
of a character required to be described or referred to in the Registration
Statement or the Prospectus or to be filed as exhibits to the Registration
Statement other than those described or referred to therein or filed or
incorporated by reference as exhibits thereto.
4. The statements set forth in the Basic Prospectus under the
captions "Description of The Securities" and in the Prospectus Supplement under
the captions "Description of The Offered Certificates" and "The Pooling and
Servicing Agreement," to the extent such statements purport to summarize
certain provisions of the Offered Certificates or of the Pooling and Servicing
Agreement, are fair and accurate in all material respects.
5. The statements set forth in the Basic Prospectus and the
Prospectus Supplement under the captions "ERISA Considerations," "Certain
Federal Income Tax Consequences," "Legal Investment Matters" and, "Certain
Legal Aspects of the Mortgage Assets" to the extent that they constitute
matters of federal law, provide a fair and accurate summary of such law or
conclusions.
6. The Pooling and Servicing Agreement and the Transfer
Agreements conform in all material respects to the description thereof
contained in the Prospectus and the Pooling and Servicing Agreement is not
required to be qualified under the Trust Indenture Act of 1939, as amended, and
the Trust is not required to be registered under the Investment Company Act of
1940, as amended.
7. Neither the Depositor nor the Trust is an "investment company"
or under the "control" of an "investment company" as such terms are defined in
the 1940 Act.
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8. Assuming that (a) the Trustee causes certain assets of the
Trust Estate, as the Trustee has covenanted to do in the Pooling and Servicing
Agreement, to be treated as a "real estate mortgage investment conduit"
("REMIC"), as such term is defined in the Internal Revenue Code of 1986, as
amended (the "Code"), and (b) the parties to the Pooling and Servicing
Agreement comply with the terms thereof, the Lower-Tier REMIC and the
Upper-Tier REMIC will be treated as a REMIC, each Class of the Offered
Certificates, the Class B-2F Certificates, the Class C-IO Certificates, the
Class S Certificates and the Class D Certificates will be treated as the
"regular interests" in the Upper-Tier REMIC and the Class R Certificates will
be treated as the sole "residual interest" in the Upper-Tier REMIC and each
Lower-Tier Interest will be treated as the "regular interests" in the
Lower-Tier REMIC and the Lower-Tier REMIC Residual Class will be the sole
"residual interest" in the Lower-Tier REMIC. Neither the Trust nor certain
assets and accounts are subject to tax upon its income or assets by any taxing
authority of the State of New York or the City of New York.
9. Assuming that the Class A-10 Certificates and the Class M-1A
Certificates are rated at the time of issuance in one of the two highest rating
categories by a nationally recognized statistical rating organization, such
Certificates at such time will be a "mortgage related security" as such term is
defined in Section 3(a)(41) of the Securities Exchange Act of 1934, as amended.
10. To the best of such counsel's knowledge, there are no actions,
proceedings or investigations pending that would adversely affect the status of
the Lower-Tier REMIC and the Upper-Tier REMIC as a REMIC.
11. As a consequence of the qualification of the Lower-Tier REMIC
and the Upper-Tier REMIC as a REMIC, the Offered Certificates will be treated
as "regular . . . interest(s) in a REMIC" under Section 7701(a)(19)(C) of the
Code and "real estate assets" under Section 856(c) of the Code in the same
proportion that the assets in the Trust consist of qualifying assets under such
Sections. In addition, as a consequence of the qualification of the Upper-Tier
REMIC as a REMIC interest on the Offered Certificates will be treated as
"interest on obligations secured by mortgages on real property" under Section
856(c) of the Code to the extent that such Offered Certificates are treated as
"real estate assets" under Section 856(c) of the Code.
12. The Certificates will, when issued, conform to the description
thereof contained in the Prospectus.
Such counsel shall also have furnished to the Underwriters a written statement,
addressed to the Underwriters and dated the Closing Date, in form and substance
satisfactory to the Underwriters to the effect that no facts have come to the
attention of such counsel which lead them to believe that: (a) the Registration
Statement, at the time such Registration Statement became effective, contained
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading (except as to financial or statistical data contained in the
Registration Statement); (b) the Prospectus, as of its date and as of the
Closing Date, contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; or (c) any document
incorporated by reference in the Prospectus or any further amendment or
supplement to any such incorporated document made by the Depositor prior to the
Closing Date (other than any document filed at the request of an Underwriter to
the extent such document relates to Computational Materials) contained, as of
the time it became effective or was filed with the Commission, as the case may
be, an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
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E. The Underwriters shall have received the favorable opinion,
dated the Closing Date, of Xxxxx & Xxxxxx, special counsel to the Depositor,
addressed to the Depositor and satisfactory to Xxxxx'x, Standard & Poor's,
Fitch, DCR and the Underwriters, with respect to certain matters relating to
the transfer of the Mortgage Loans to the Depositor and from the Depositor to
the Trust, and such counsel shall have consented to reliance on such opinion by
Xxxxx'x, Standard & Poor's, Fitch, DCR and the Underwriters as though such
opinion had been addressed to each such party.
F. Xxxxx Xxxxxxxxxx, counsel for Advanta, Xxxxxxxx & Xxxxxxxx,
counsel for Option One and Xxxxxxx Xxxxxxx and Wood, counsel for Long Beach,
each shall have furnished to the Underwriters their written opinion, as counsel
to the related Servicer, addressed to the Underwriters and the Depositor and
dated the Closing Date, in form and substance satisfactory to the Underwriters,
to the effect that:
1. Each Servicer is validly existing in good standing as a
corporation under the laws of its State of incorporation.
2. Each Servicer has full corporate power and authority to serve
in the capacity of servicers of the related Mortgage Loans as contemplated in
the Pooling and Servicing Agreement.
3. The Pooling and Servicing Agreement has been duly authorized,
executed and delivered by each Servicer, and, assuming the due authorization,
execution and delivery of such agreements by the other parties thereto,
constitute the legal, valid and binding agreements of each Servicer,
enforceable against them in accordance with their terms, subject as to
enforceability to (x) bankruptcy, insolvency, reorganization, moratorium,
receivership or other similar laws now or hereafter in effect relating to
creditors' rights generally and (y) the qualification that the remedy of
specific performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion, with respect to such
remedies, of the court before which any proceedings with respect thereto may be
brought.
4. No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body having
jurisdiction over each Servicer is required for the consummation by either of
them of the transactions contemplated by the Pooling and Servicing Agreement,
except such consents, approvals, authorizations, registrations and
qualifications as have been obtained.
5. The execution, delivery or performance by each Servicer of the
Pooling and Servicing Agreement and the transactions contemplated thereby do
not (A) conflict with or result in a breach of, or constitute a default under,
(i) any term or provision of the certificate of incorporation or by-laws of
such Servicer; (ii) any term or provision of any material agreement, deed of
trust, mortgage loan agreement, contract, instrument or indenture, or other
agreement to which such Servicer is a party or is bound or to which any of the
property or assets of such Servicer or any of its subsidiaries is subject;
(iii) to the best of such firm's knowledge without independent investigation
any order, judgment, writ, injunction or decree of any court or governmental
authority having jurisdiction over such Servicer; or (iv) any law, rule or
regulations applicable to such Servicer; or (B) to the best of such firm's
knowledge without independent investigation, results in the creation or
imposition of any lien, charge or encumbrance upon the Trust Estate or upon the
Certificates.
6. There are, to the best of such counsel's knowledge without
independent investigation, no actions, proceedings or investigations pending or
threatened against a Servicer before any court, administrative agency or other
tribunal (a) asserting the validity of the Pooling and Servicing Agreement or
the Certificates, (b) seeking to prevent the consummation of any of the
transactions contemplated by the Pooling and Servicing Agreement or (c) which
would materially and adversely affect the performance by
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the Servicers of its obligations under, or the validity or enforceability of,
the Pooling and Servicing Agreement.
G. Counsel for the Depositor and the Seller (which may be
in-house counsel) shall have furnished to the Underwriters such counsel's
written opinion, addressed to the Underwriters and dated the Closing Date, in
form and substance satisfactory to the Underwriters, to the effect that:
1. The Depositor has been duly organized and is validly existing
as a corporation in good standing under the laws of the State of Delaware and
is duly qualified to do business and is in good standing as a foreign
corporation in each jurisdiction in which its ownership or lease of property or
the conduct of its business requires such qualification (except where any such
failure would not have a material adverse effect on the Depositor's ability to
perform its obligations under this Agreement or the Pooling and Servicing
Agreement, and has all power and authority necessary to own or hold its
properties and to conduct the business in which it is engaged and to enter into
and perform its obligations under this Agreement and the Pooling and Servicing
Agreement, and to cause the Certificates to be issued.
2. The Depositor is not in violation of its articles of
incorporation or by-laws or in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other instrument
to which the Depositor is a party or by which it or its properties may be
bound, which default might result in any material adverse change in the
financial condition of the Depositor or which might materially and adversely
affect the properties or assets, taken as a whole, the Depositor.
3. This Agreement and the Pooling and Servicing Agreement have
been duly authorized, executed and delivered by the Depositor and the
Subsequent Transfer Agreements have been duly authorized, and when duly
executed and delivered by the Depositor and, assuming the due authorization,
execution and delivery of such agreements by the other parties thereto, such
agreements constitute and in the case of any Subsequent Transfer Agreement will
constitute valid and binding obligations, enforceable against the Depositor in
accordance with their respective terms, subject as to enforceability to (x)
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally, (y) general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law) and (z) with respect to rights of indemnity
under this Agreement, limitations of public policy under applicable securities
laws.
4. The execution, delivery and performance of this Agreement, the
Pooling and Servicing Agreement and each Subsequent Transfer Agreement by the
Depositor, the consummation of the transactions contemplated hereby and
thereby, and the issuance and delivery of the Certificates (i) do not and will
not conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Depositor
is a party or by which the Depositor is bound or to which any of the property
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, (ii) nor will such actions result in a
violation of the provisions of the articles of incorporation or by-laws of the
Depositor, which breach or violation would have a material adverse effect on
the business, operations or financial condition 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)
and (iii) nor will such actions result in the creation or imposition of any
lien, charge or encumbrance upon the Trust Estate or upon the Certificates,
except as otherwise contemplated by the Pooling and Servicing Agreement.
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5. The direction by the Depositor to the Trustee to execute,
issue, authenticate and deliver the Certificates has been duly authorized by
the Depositor and, assuming that the Trustee has been duly authorized to do so,
when executed, authenticated and delivered by the Trustee in accordance with
the Pooling and Servicing Agreement, the Certificates will be validly issued
and outstanding and will be entitled to the benefits of the Pooling and
Servicing Agreement.
6. No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body of the United
States is required for the issuance of the Certificates, and the sale of the
Offered Certificates to the Underwriters, or the consummation by the Depositor
of the other transactions contemplated by this Agreement and the Pooling and
Servicing Agreement, except such consents, approvals, authorizations,
registrations or qualifications as may be required under the 1933 Act or State
securities or Blue Sky laws in connection with the purchase and distribution of
the Offered Certificates by the Underwriters or as have been previously
obtained.
7. There are no actions, proceedings or investigations pending
with respect to which the Depositor has received service of process before or,
to the best of such counsel's knowledge, without independent investigation, to
the best of such counsel's knowledge without independent investigation,
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, results of operations or financial condition of the
Depositor; (b) asserting the invalidity of the Pooling and Servicing Agreement
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
the Pooling and Servicing Agreement or this Agreement, as the case may be; or
(d) which might materially and adversely affect the performance by the
Depositor of its obligations under, or the validity or enforceability of, the
Pooling and Servicing Agreement, this Agreement or the Certificates.
8. The Certificates have been duly and validly authorized and
issued, and, immediately prior to the sale of the Offered Certificates to the
Underwriters, such Certificates are owned by the Depositor, free and clear of
all Liens.
9. The Seller has been duly organized and is validly existing as
a corporation in good standing under the laws of the State of Delaware and is
duly qualified to do business and is in good standing as a foreign corporation
in each jurisdiction in which its ownership or lease of property or the conduct
of its business requires such qualification, and has all power and authority
necessary to own or hold its properties and to conduct the business in which it
is engaged and to enter into and perform its obligations under the Transfer
Agreements.
10. The Seller is not in violation of its articles of
incorporation or by-laws or in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other instrument
to which the Seller is a party or by which it or its properties may be bound,
which default might result in any material adverse changes in the financial
condition, earnings, affairs or business of the Seller or which might
materially and adversely affect the properties or assets, taken as a whole, of
the Seller.
11. The Transfer Agreements have been duly authorized, executed
and delivered by the Seller and, assuming the due authorization, execution and
delivery of such agreements by the parties thereto other than the Seller, such
agreements will constitute valid and binding obligations, enforceable against
the Seller in accordance with their respective terms, subject as to
enforceability to (x) bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to creditors' rights
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generally (y) general principles of equity (regardless of whether enforcement
is sought in a proceeding in equity or at law).
12. The execution, delivery and performance of the Transfer
Agreements by the Seller and the consummation of the transactions contemplated
thereby 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 Seller is a party or by which the Seller is bound or to
which any of the property or assets of the Seller 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 Seller, nor will such
actions result in a violation of the provisions of the articles 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 or assets, which breach or violation would
have a material adverse effect on the business, operations or financial
condition of the Seller.
13. The assignment of rights under each of the Transfer Agreements
by the Seller to the Depositor and by the Depositor to the Trust is effective
to permit the Trustee to exercise the Seller's rights thereunder.
H. The Underwriters shall have received the favorable opinion of
Xxxxx, Xxxxxx & Xxxxxx, counsel to the Trustee, dated the Closing Date,
addressed to the Underwriters and in form and scope satisfactory to counsel to
the Underwriters, to the effect that:
1. The Trustee is a banking corporation duly incorporated and
validly existing under the laws of the State of New York.
2. The Trustee has the full corporate trust power to execute,
deliver and perform its obligations under the Pooling and Servicing Agreement.
3. The execution and delivery by the Trustee of the Pooling and
Servicing Agreement and the performance by the Trustee of its obligations under
the Pooling and Servicing Agreement have been duly authorized by all necessary
corporate action of the Trustee.
4. The Pooling and Servicing Agreement is a valid and legally
binding obligation of the Trustee enforceable against the Trustee.
5. The execution and delivery by the Trustee of the Pooling and
Servicing Agreement does not (a) violate the organization certificate of the
Trustee or the By-laws of the Trustee, (b) to such counsel's knowledge, violate
any judgment, decree or order of any New York or United States federal court or
other New York or United States federal governmental authority by which the
Trustee is bound or (c) assuming the non-existence of any judgment, decree or
order of any court or other governmental authority that would be violated by
such execution and delivery, violate any New York or United States federal
statute, rule or regulation or require any consent, approval or authorization
of any New York or United States federal court or other New York or United
States federal governmental authority.
6. The Certificates have been duly authenticated, executed and
delivered by the Trustee.
7. If the Trustee were acting in the stead of any Servicer under
the Pooling and Servicing Agreement as of the date of such opinion, the Trustee
would have the full corporate trust power to perform the obligations of such
Servicer under the Pooling and Servicing Agreement.
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8. To the best of such counsel's knowledge, there are no actions,
proceedings or investigations pending or threatened against or affecting the
Trustee before or by any court, arbitrator, administrative agency or other
governmental authority which, if decided adversely to the Trustee, would
materially and adversely affect the ability of the Trustee to carry out the
transactions contemplated in the Pooling and Servicing Agreement.
I. The Underwriters shall have received the favorable opinion or
opinions, dated the date of the Closing Date, of counsel for the Underwriters,
with respect to the issue and sale of the Offered Certificates, this Agreement,
the Prospectus and such other related matters as the Underwriters may
reasonably require.
J. RESERVED.
K. The Depositor shall have furnished to the Underwriters a
certificate, dated the Closing Date and signed by the Chairman of the Board,
the President or a Vice President of the Depositor to the extent that the
signer of such certificate has carefully examined the Registration Statement
(excluding any documents incorporated therein by reference), the Pooling and
Servicing Agreement and this Agreement and that, to the best of his or her
knowledge based upon reasonable investigation:
1. The representations and warranties of the Depositor in this
Agreement, the Pooling and Servicing Agreement and all related agreements are
true and correct as of the Closing Date; and the Depositor has complied with
all agreements and satisfied all the conditions on its part which are to have
been complied with on or prior to the Closing Date.
2. There has been no amendment or other document filed affecting
the certificate of incorporation or bylaws of the Depositor since November 9,
1995 and no such amendment has been authorized. No event has occurred since
September ___, 1997 which has affected the good standing of the Depositor under
the laws of the State of Delaware.
3. There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of the
Depositor from June 30, 1997.
4. There are no actions, suits or proceedings pending with
respect to which it has received service of process or, to the best of such
officer's knowledge, threatened against or affecting the Depositor which if
adversely determined, individually or in the aggregate, would be reasonably
likely to adversely affect the Depositor's obligations under the Pooling and
Servicing Agreement or this Agreement in any material way; and no merger,
liquidation, dissolution or bankruptcy of the Depositor is pending or
contemplated.
L. The Trustee shall have furnished to the Underwriters a
certificate of the Trustee, signed by one or more duly authorized officers of
the Trustee, dated the Closing Date, as to the due authorization, execution and
delivery of the Pooling and Servicing Agreement by the Trustee and the
acceptance by the Trustee of the trusts created thereby and the due execution,
authentication and delivery of the Certificates by the Trustee thereunder and
such other matters as the Representative shall reasonably request.
M. RESERVED.
N. The Class A Certificates shall have been rated "Aaa" by
Xxxxx'x and "AAA" by Standard & Poor's, Fitch and DCR. The Class M-1, Class
M-2 and Class B Certificates shall have been rated
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"Xx0," "X0" and "Baa3," respectively, by Xxxxx'x and "AA," "A" and "BBB,"
respectively, by Standard & Poor's, Fitch and DCR.
O. The Depositor shall have furnished to the Underwriters such
further information, certificates and documents as the Underwriters may
reasonably have requested not less than three full business days prior to the
Closing Date.
P. Prior to the Closing Date, counsel for the Underwriters shall
have been furnished with such documents and opinions as they may reasonably
require for the purpose of enabling them to pass upon the issuance and sale of
the Certificates as herein contemplated and related proceedings or in order to
evidence the accuracy and completeness of any of the representations and
warranties, or the fulfillment of any of the conditions, herein contained, and
all proceedings taken by the Depositor in connection with the issuance and sale
of the Certificates as herein contemplated shall be satisfactory in form and
substance to the Underwriters and counsel for the Underwriters.
Q. Subsequent to the execution and delivery of this Agreement
none of the following shall have occurred: (i) trading in securities generally
on the New York Stock Exchange, the American Stock Exchange or the over-the
counter market shall have been suspended or minimum prices shall have been
established on either of such exchanges or such market by the Commission, by
such exchange or by any other regulatory body or governmental authority having
jurisdiction; (ii) a banking moratorium shall have been declared by Federal or
state authorities; (iii) the United States shall have become engaged in
hostilities, there shall have been an escalation of hostilities involving the
United States or there shall have been a declaration of a national emergency or
war by the United States; or (iv) there shall have occurred such a material
adverse change in general economic, political or financial conditions (or the
effect of international conditions on the financial markets of the United
States shall be such) as to make it in each of the instances set forth in
clauses (i), (ii), (iii) and (iv) herein, in the reasonable judgment of the
Representative, impractical or inadvisable to proceed with the public offering
or delivery of the Certificates on the terms and in the manner contemplated in
the Prospectus.
R. The Representative shall have received a letter from Deloitte
& Touche, LLP, dated on or before the Closing Date, in form and substance
satisfactory to the Representative and special counsel for the Underwriters,
addressed to each of the Underwriters to the effect that they have performed
certain specified procedures requested by the Representative with respect to
the information set forth in the Prospectus and certain matters relating to the
Depositor.
S. The Representative and special counsel for the Underwriters
shall have received copies of any opinions of counsel supplied to the rating
organizations relating to any matters with respect to the Certificates. Any
such opinions shall be dated the Closing Date and addressed to each of the
Underwriters or accompanied by reliance letters to the Representative or shall
state that each of the Underwriters may rely upon them.
T. RESERVED.
U. There has not occurred any change, or any development
involving a prospective change, in the condition, financial or otherwise, or in
the earnings, business or operations, since June 30, 1997, of the Depositor and
its subsidiaries, that is in the Representative's judgment material and adverse
and that makes it in the Representative's judgment impracticable to market the
Offered Certificates on the terms and in the manner contemplated in the
Prospectus.
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If any condition specified in this Section VI shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Underwriters by notice to the 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 Section VII.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably
satisfactory to counsel for the Underwriters.
SECTION VII. Payment of Expenses. If the transaction closes, or if
the transaction fails to close other than as a result of a failure of the
Underwriters to perform hereunder, the 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 (including the Prospectus);
(c) the costs of distributing the Registration Statement as originally filed
and each amendment thereto and any post-effective amendments thereof
(including, in each case, exhibits), the Prospectus and any amendment or
supplement to the Prospectus or any document incorporated by reference therein,
all as provided in this Agreement; (d) the costs of reproducing and
distributing this Agreement; (e) the fees and expenses of qualifying the
Certificates under the securities laws of the several jurisdictions as provided
in Section V(G) hereof and of preparing, printing and distributing a Blue Sky
Memorandum and a Legal Investment Survey (including related fees and expenses
of counsel to the Representative); (f) any fees charged by securities rating
services for rating the Offered Certificates; (g) the cost of the accountant's
letter relating to the Prospectus except for expenses relating to the
accountant's audit of the loan files; and (h) all other costs and expenses
incident to the performance of the obligations of the Depositor (including
costs and expenses of its counsel); provided that, except as provided in this
Section VII, the Underwriters shall pay their own costs and expenses, including
the costs and expenses of their counsel, any transfer taxes on the Offered
Certificates which they may sell and the expenses of advertising any offering
of the Offered Certificates made by the Underwriters, and the Underwriters
shall pay the cost of any accountant's comfort letters which such Underwriters
choose to request relating to any Computational Materials (as defined herein).
If this Agreement is terminated by the Underwriters in accordance with
the provisions of Section VI or Section XI, whether or not the transactions
contemplated hereunder are consummated, the Depositor shall cause the
Underwriters to be reimbursed for all reasonable out-of-pocket expenses.
SECTION VIII. Indemnification and Contribution. A. The Depositor
agrees to indemnify and hold harmless each Underwriter and each person, if any,
who controls such Underwriter within the meaning of Section 15 of the
Securities Act or Section 12 of the Exchange Act from and against any and all
loss, claim, damage or liability, joint or several, or any action in respect
thereof (including, but not limited to, any loss, claim, damage, liability or
action relating to purchases and sales of the Offered Certificates), to which
such Underwriter or any such controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, or
any amendment thereof or supplement thereto, (ii) the omission or alleged
omission to state in the Registration Statement a material fact required to be
stated therein or necessary to make the statements therein not misleading,
(iii) any untrue statement or alleged untrue statement of a material fact
contained in the Prospectus, or any amendment thereof or supplement thereto, or
(iv) the omission or alleged omission to state in the Prospectus a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading
and shall reimburse such Underwriter and each such controlling person promptly
upon demand for any legal or other
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20
expenses reasonably incurred by such Underwriter or such controlling person in
connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Depositor shall not be liable in any such case to
the extent that any such loss, claim, damage, liability or action arises out
of, or is based upon, any untrue statement or alleged untrue statement or
omission or alleged omission made in the Prospectus, or any amendment thereof
or supplement thereto, or the Registration Statement, or any amendment thereof
or supplement thereto, in reliance upon and in conformity with written
information furnished to the Depositor by or on behalf of such Underwriter
specifically for inclusion therein (except to the extent that any untrue
statement or alleged untrue statement or omission or alleged omission is a
result of Seller Provided Information which is not accurate and complete in all
material respects). The foregoing indemnity agreement is in addition to any
liability which the Depositor may otherwise have to any Underwriter or any
controlling person of any of such Underwriter.
B. Each Underwriter severally agrees to indemnify and hold
harmless the Depositor, each of its directors, each of its officers who signed
the Registration Statement, and each person, if any, who controls the Depositor
within the meaning of Section 15 of the Securities Act or Section 12 of the
Exchange Act against any and all loss, claim, damage or liability, or any
action in respect thereof, to which the Depositor or any such director, officer
or controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in the Prospectus, or any amendment thereof or
supplement thereto, or (ii) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
in the Prospectus, when considered in conjunction with the Prospectus, and in
the light of the circumstances under which they were made, not misleading, but
in each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Depositor by or on behalf
of such Underwriter specifically for inclusion therein, and shall reimburse the
Depositor and any such director, officer or controlling person for any legal or
other expenses reasonably incurred by the Depositor or any director, officer or
controlling person in connection with investigating or defending or preparing
to defend against any such loss, claim, damage, liability or action as such
expenses are incurred, provided, however, that no Underwriter shall be liable
to the extent that such untrue statements or alleged untrue statement or
omission or alleged omission is a result of Seller Provided Information that is
not accurate and complete in all material respects. The foregoing indemnity
agreement is in addition to any liability which any Underwriter may otherwise
have to the Depositor or any such director, officer or controlling person.
C. Promptly after receipt by any indemnified party under this
Section VIII of notice of any claim or the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against
any indemnifying party under this Section VIII, notify the indemnifying party
in writing of the claim or the commencement of that action; provided, however,
that the failure to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section VIII except to the extent it has
been materially prejudiced by such failure and, provided further, that the
failure to notify any indemnifying party shall not relieve it from any
liability which it may have to any indemnified party otherwise than under this
Section VIII.
If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume
the defense thereof with counsel reasonably satisfactory to the indemnified
party. After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, except to the extent
provided in the next following paragraph, the indemnifying party shall not be
liable to the indemnified
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party under this Section VIII for any legal or other expenses subsequently
incurred by the indemnified party in connection with the defense thereof other
than reasonable costs of investigation.
Any indemnified party shall have the right to employ separate counsel
in any such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless: (i) the employment thereof has been specifically authorized by the
indemnifying party in writing; (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party and in the reasonable judgment of such counsel it is
advisable for such indemnified party to employ separate counsel; or (iii) the
indemnifying party has failed to assume the defense of such action and employ
counsel reasonably satisfactory to the indemnified party, in which case, if
such indemnified party notifies the indemnifying party in writing that it
elects to employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such
action on behalf of such indemnified party, it being understood, however, the
indemnifying party shall not, in connection with any one such action or
separate but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to one local counsel per jurisdiction) at any time for all such
indemnified parties, which firm shall be designated in writing by the related
Underwriter, if the indemnified parties under this Section VIII consist of one
or more Underwriters or any of its or their controlling persons, or the
Depositor, if the indemnified parties under this Section VIII consist of the
Depositor or any of the Depositor's directors, officers or controlling persons.
Each indemnified party, as a condition of the indemnity agreements
contained in Section VIII(A) and (B), shall use its best efforts to cooperate
with the indemnifying party in the defense of any such action or claim. No
indemnifying party shall be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a final
judgment for the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss or
liability by reason of such settlement or judgment.
Notwithstanding the foregoing paragraph, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding.
D. Computational Materials. Not later than 10:30 a.m. New York
City time, on the business day before the date on which the Current Report
relating to the Certificates is required to be filed by the Depositor with the
Commission pursuant to Section V.M hereof, each Underwriter shall deliver to
the Depositor five complete copies of all materials, if any, provided by such
Underwriter to prospective investors in such Certificates which constitute
"Computational Materials" within the meaning of the no-action letter dated May
20, 1994, issued by the Division of Corporation Finance of the Commission to
Xxxxxx, Xxxxxxx Acceptance Corporation I, Xxxxxx, Peabody & Co. Incorporated,
and Xxxxxx Structured
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22
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 (collectively, the "Xxxxxx/PSA
Letters") and the filing of which is a condition of the relief granted in such
letters (such materials being the "Computational Materials"). Each delivery of
Computational Materials to the Depositor pursuant to this paragraph (a) shall
be effected by delivering four copies of such material to counsel for the
Depositor (including one copy on computer diskette) on behalf of the Depositor
and one copy of such materials to the Depositor.
E. Each Underwriter severally and not jointly agrees to indemnify
and hold harmless the Depositor, each of the Depositor's officers and directors
and each person who controls the Depositor within the meaning of Section 15 of
the Securities Act and Section 12 of the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement of a material fact contained in the
Computational Materials provided by such Underwriter, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, when
considered in conjunction with the Prospectus, and in the light of the
circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party for any legal or other expenses
reasonably incurred by him, her or it in connection with investigating or
defending or preparing to defend any such loss, claim, damage, liability or
action as such expenses are incurred, provided, however, that no Underwriter
shall be liable to the extent that such untrue statements or alleged untrue
statement or omission or alleged omission is a result of Seller Provided
Information that is not accurate and complete in all material respects. The
obligations of an Underwriter under this Section VIII (E) shall be in addition
to any liability which such Underwriter may otherwise have.
The procedures set forth in Section VIII (C) shall be equally
applicable to this Section VIII (E).
F. If the indemnification provided for in this Section VIII shall
for any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section VIII (A), (B) or (E) in respect of any loss,
claim, damage or liability, or any action in respect thereof, referred to
therein, then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or action in
respect thereof, (i) in such proportion as shall be appropriate to reflect the
relative benefits received by the Depositor on the one hand and the related
Underwriters on the other from the offering of the related Offered Certificates
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law or if the indemnified party failed to give the notice required
under Section VIII(C), 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 related Underwriter on the other
with respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other
relevant equitable considerations.
The relative benefits of an Underwriter and the Depositor shall be
deemed to be in such 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 related Underwriter from
time to time in negotiated sales of the related Offered Certificates.
The relative fault of an Underwriter and the Depositor shall be
determined by reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied or prepared by the Depositor or by such Underwriter,
the intent of the
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23
parties and their relative knowledge, access to information and opportunity to
correct or prevent such statement or omission and other equitable
considerations.
The Depositor and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section VIII(F) were to be
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purposes) or by any other method of allocation which does not
take into account the equitable considerations referred to herein. The amount
paid or payable by an indemnified party as a result of the loss, claim, damage
or liability, or action in respect thereof, referred to above in this Section
VIII(F) shall be deemed to include, for purposes of this Section VIII(F), any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
For purposes of this Section VIII, in no case shall any Underwriter
(except with respect to any document (other than the Computational Materials)
incorporated by reference into the Registration Statement or Prospectus at the
request of such Underwriter and except as may be provided in any agreement
among the Underwriters relating to the offering of the Offered Certificates) be
responsible for any amount in excess of (x) the amount received by such
Underwriter in connection with its resale of the Offered Certificates over (y)
the amount paid by such Underwriter to the Depositor for the Offered
Certificates by such Underwriter hereunder. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
The Depositor and each Underwriter expressly waive, and agree not to
assert, any defense to their respective indemnification and contribution
obligations under this Section VIII which they might otherwise assert based
upon any claim that such obligations are unenforceable under federal or state
securities laws or by reason of public policy.
"Seller-Provided Information" means any computer tape (or other information)
furnished to any Underwriter by the Seller concerning the assets comprising the
Trust.
G. Each Underwriter severally confirms that the information
regarding such Underwriter set forth in the last paragraph on the front cover
page of the Prospectus Supplement and the Computational Materials furnished by
such Underwriter are correct, and, the Depositor acknowledges that such
information constitutes the only information furnished in writing to the
Depositor by or on behalf of any Underwriter specifically for inclusion in the
Registration Statement and the Prospectus.
SECTION IX. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or contained in agreements delivered pursuant hereto or certificates
of officers of the Depositor 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 Offered Certificates to the
Underwriters.
SECTION X. Default by One or More of the Underwriters. If one or more
of the Underwriters participating in the public offering of the Offered
Certificates shall fail at the Closing Date to purchase the Offered
Certificates which it is (or they are) obligated to purchase hereunder (the
"Defaulted Certificates"), then the non-defaulting Underwriters shall have the
right, within 48 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but
not less than all, of the Defaulted Certificates in such amounts as may be
agreed upon and upon the terms herein set forth (as used in this Agreement, the
term "Underwriter" includes any underwriter substituted for an
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24
Underwriter under this Section X). If, however, the Underwriters have not
completed such arrangements within such 48-hour period, then:
(i) if the aggregate original principal amount of Defaulted
Certificates does not exceed 10% of the aggregate original principal amount of
the Offered Certificates to be purchased pursuant to this Agreement, the
non-defaulting Underwriters named in this Agreement shall be obligated to
purchase the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations of all
such non-defaulting Underwriters, or
(ii) if the aggregate original principal amount of Defaulted
Certificates exceeds 10% of the aggregate original principal amount of the
Offered Certificates to be purchased pursuant to this Agreement, this Agreement
shall terminate, without any liability on the part of any non-defaulting
Underwriters.
No action taken pursuant to this Section X shall relieve any
defaulting Underwriter from the liability with respect to any default of such
Underwriter under this Agreement.
In the event of a default by any Underwriter as set forth in this
Section X, each of the Underwriters and the Depositor shall have the right to
postpone the Closing Date for a period not exceeding seven Business Days in
order that any required changes in the Registration Statement or Prospectus or
in any other documents or arrangements may be effected.
SECTION XI. Termination of Agreement. The Underwriters may terminate
this Agreement immediately upon notice to the Depositor, at any time at or
prior to the Closing Date if any of the events or conditions described in
Section VI(Q) of this Agreement shall occur and be continuing. In the event of
any such termination, the provisions of Section VII, the indemnity agreement
set forth in Section VIII, and the provisions of Sections IX and XIV shall
remain in effect.
SECTION XII. Notices. All statements, requests, notices and
agreements hereunder shall be in writing, and:
A. if to the Underwriters, shall be delivered or sent by mail,
telex or facsimile transmission to the Representative at its address set forth
above;
B. if to the Depositor, shall be delivered or sent by overnight
mail or facsimile transmission to 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, XX #000,
Xxxxxx, XX 00000-0000, Attn.: General Counsel, Fax No. 000-000-0000.
SECTION XIII. Persons Entitled to the Benefit of this Agreement. This
Agreement shall inure to the benefit of and be binding upon the Underwriters
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 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 XIII, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein.
SECTION XIV. Survival. The respective indemnities, representations,
warranties and agreements of the Depositor and the Underwriters contained in
this Agreement, or made by or on behalf of them,
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25
respectively, pursuant to this Agreement, shall survive the delivery of and
payment for the Certificates and shall remain in full force and effect,
regardless of any investigation made by or on behalf of any of them or any
person controlling any of them. The provisions of Sections V, VII and VIII
hereof shall survive the termination or cancellation of this Agreement.
SECTION XV. Definition of the Term "Business Day". For purposes of
this Agreement, "Business Day" means any day on which the New York Stock
Exchange, Inc. is open for trading.
SECTION XVI. Governing Law; Submission to Jurisdiction. This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York without giving effect to the conflict of law rules thereof.
The parties hereto 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.
SECTION XVII. Counterparts. This Agreement may be executed in
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
SECTION XVIII. Headings. The headings herein are inserted for
convenience of reference only and are not intended to be part of, or to affect
the meaning or interpretation of, this Agreement.
SECTION XIX. Amendments and Waivers. This Agreement may be amended,
modified, altered or terminated, and any of its provisions waived, only in a
writing signed on behalf of the Depositor and the Representative.
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26
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,
AMRESCO RESIDENTIAL SECURITIES CORPORATION
By:
--------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED, as
of the date first above written:
XXXXXX XXXXXXX & CO. INCORPORATED
Acting on its own behalf and as
Representative of the several
Underwriters referred to in the
foregoing Agreement
By:
--------------------------------
Name:
Title:
27
SCHEDULE A
Class of Certificates Initial Principal Amount of Purchase
Name of Purchased by the Certificates Purchased by Price
Underwriter Underwriters Underwriters (% of Par)
----------- ------------ ------------ ----------
Xxxxxx Xxxxxxx & Co. Incorporated
A-1 $12,600,000 99.884375
A-2 14,400,000 99.875000
A-3 16,720,000 99.850000
A-4 11,640,000 99.800000
A-5 5,840,000 99.775000
A-6 5,680,000 99.734375
A-7 6,120,000 99.668750
A-8 7,916,000 101.143750
A-9 8,992,000 99.700000
A-10 221,616,000 99.740000
M-1F 5,852,000 99.668750
M-1A 21,888,000 99.700000
M-2F 4,788,000 99.659375
M-2A 16,416,000 99.675000
B-1F 4,256,000 99.600000
B-1A 13,680,000 99.600000
----------
TOTAL $378,404,000
-----
Credit Suisse First Boston
A-1 $7,875,000 99.884375
A-2 9,000,000 99.875000
A-3 10,450,000 99.850000
A-4 7,275,000 99.800000
A-5 3,650,000 99.775000
A-6 3,550,000 99.734375
A-7 3,825,000 99.668750
A-8 4,947,500 101.143750
A-9 5,620,000 99.700000
A-10 138,510,000 99.740000
M-1F 3,657,500 99.668750
M-1A 13,680,000 99.700000
M-2F 2,992,500 99.659375
M-2A 10,260,000 99.675000
B-1F 2,660,000 99.600000
B-1A 8,550,000 99.600000
---------
TOTAL: $236,502,500
-----
Xxxxxx Brothers
A-1 $3,150,000 99.884375
A-2 3,600,000 99.875000
A-3 4,180,000 99.850000
A-4 2,910,000 99.800000
A-5 1,460,000 99.775000
A-6 1,420,000 99.734375
A-7 1,530,000 99.668750
A-8 1,979,000 101.143750
A-9 2,248,000 99.700000
A-10 55,404,000 99.740000
M-1F 1,463,000 99.668750
M-1A 5,472,000 99.700000
M-2F 1,197,000 99.659375
M-2A 4,104,000 99.675000
B-1F 1,064,000 99.600000
B-1A 3,420,000 99.600000
---------
TOTAL $94,601,000
-----
Prudential Securities
Incorporated
A-1 7,875,000 99.884375
A-2 9,000,000 99.875000
A-3 10,450,000 99.850000
A-4 7,275,000 99.800000
A-5 3,650,000 99.775000
A-6 3,550,000 99.734375
A-7 3,825,000 99.668750
A-8 4,947,500 101.143750
A-9 5,620,000 99.700000
A-10 138,510,000 99.740000
M-1F 3,657,500 99.668750
M-1A 13,680,000 99.700000
M-2F 2,992,500 99.659375
M-2A 10,260,000 99.675000
B-1F 2,660,000 99.600000
B-1A 8,550,000 99.600000
---------
TOTAL $236,502,000
-----
TOTAL:
-----
