Exhibit 1
EXECUTION COPY
$733,343,000
(Approximate)
MADISON AVENUE MANUFACTURED HOUSING CONTRACT TRUST, 2002-A
MANUFACTURED HOUSING CONTRACT
ASSET-BACKED CERTIFICATES, SERIES 2002-A
UNDERWRITING AGREEMENT
March 21, 2001
BEAR, XXXXXXX & CO. INC.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Bear Xxxxxxx Asset Backed Securities, Inc. (the "Depositor"), a
Delaware corporation, has authorized the issuance and sale of Manufactured
Housing Contract Asset-Backed Certificates, Series 2002-A, in the classes, in
the respective original principal amounts and with the designations set forth
in Schedule A hereto (the "Underwritten Certificates"), issued by Madison
Avenue Manufactured Housing Contract Trust, 2002-A (the "Trust"). The Trust's
assets consist primarily of a pool of manufactured housing installment sale
contracts and installment loan agreements (the "Contracts"). Bear, Xxxxxxx &
Co. Inc. (the "Underwriter") pursuant to this underwriting agreement (the
"Underwriting Agreement" or this "Agreement") is purchasing the Underwritten
Certificates at the prices set forth on Schedule A hereto, and upon the terms
and conditions contained herein.
The Certificates will be issued pursuant to a Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of March 1, 2002
(the "Cut-off Date"), among the Depositor, GreenPoint Credit, LLC
("GreenPoint"), as servicer and custodian (the "Servicer"), and Xxxxx Fargo
Bank Minnesota, National Association, as trustee, backup servicer and
certificate administrator (the "Trustee"). Simultaneously with the issuance of
the Underwritten Certificates, the Trust will issue its Class B-2, Class C,
Class HL and Class R Certificates (collectively, the "Privately Offered
Certificates" and together with the Underwritten Certificates, the
"Certificates").
Pursuant to a Sale and Servicing Agreement, dated as of the Cut-off
Date (the "Sale and Servicing Agreement"), by and between GreenPoint, as
seller and servicer, and EMC Mortgage Corporation (the "Seller"), as
purchaser, GreenPoint will sell all of its right, title and interest in and to
the Contracts to the Seller as of the Cut-off Date. Pursuant to a Contract
Purchase Agreement dated as of the Cut-off Date (the "Contract Purchase
Agreement"), by and between the Seller, as seller and the Depositor, as
purchaser, the Seller will sell all of its right, title and interest in and to
the Contracts to the Depositor. Pursuant to the Pooling and Servicing
Agreement, the Depositor will transfer to the Trust all such right, title and
interest in and to the Contracts as of the Cut-off Date.
Capitalized terms used and not otherwise defined herein shall have
the meanings assigned thereto in the Pooling and Servicing Agreement. This
Underwriting Agreement, the Pooling and Servicing Agreement, the Sale and
Servicing Agreement, the Insurance Agreement, the Indemnification Agreement
and the Contract Purchase Agreement are referred to herein collectively as the
"Operative Documents."
The Class A-1, Class A-2 and Class A-IO Certificates will be covered
by a guaranty insurance policy (the "Policy") to be issued by Ambac Assurance
Corporation ("Ambac").
SECTION 1. Representations and Warranties of the Depositor. The
Depositor represents and warrants to, and agrees with you that:
(a) A Registration Statement on Form S-3 (No. 333-56242) has
(i) been prepared by the Depositor in conformity with the
requirements of the Securities Act of 1933, as amended (the
"Securities Act"), and the rules and regulations (the "Rules and
Regulations") of the United States Securities and Exchange Commission
(the "Commission") thereunder, (ii) been filed with the Commission
under the Securities Act and (iii) become effective under the
Securities Act. Copies of such Registration Statement have been
delivered by the Depositor to the Underwriter. As used in this
Underwriting 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; and "Prospectus" means the final prospectus
dated March 21, 2002, as supplemented by the final Prospectus
Supplement dated March 21, 2002 (the "Prospectus Supplement")
relating to the Underwritten Certificates, to be filed with the
Commission pursuant to paragraphs (2), (3) or (5) of Rule 424(b) of
the Rules and Regulations. Reference made herein to the Prospectus
shall be deemed to refer to and include any documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the
Securities Act as of the date of the Prospectus and any reference to
any amendment or supplement to the Prospectus shall be deemed to
refer to and include any document filed under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), after the date of such
Prospectus, as the case may be, and incorporated by reference in such
Prospectus, as the case may be, 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
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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 the Underwriter delivers to the
Depositor pursuant to Section 8(e) hereof for filing on an Additional
Materials 8-K (as defined below). The conditions for use of Form S-3,
as set forth in the General Instructions thereto, have been satisfied.
(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, will not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that no
representation or warranty is made as to information contained in or
omitted from the Registration Statement or the Prospectus in reliance
upon and in conformity with written information furnished to the
Depositor in writing by any Underwriter expressly for use therein.
The only information furnished by the Underwriter or on behalf of the
Underwriter for use in connection with the preparation of the
Registration Statement or the Prospectus is described in Section 8(k)
hereof.
(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, however, that no representation is made as to (i)
Computational Materials, Structural Term Sheets and Collateral Term
Sheets (each as defined herein) deemed to be incorporated by
reference in the Prospectus as the result of filing an Additional
Materials 8-K (as defined below) pursuant to the terms hereof except
to the extent such Computational Materials, Structural Term Sheets
and Collateral Term Sheets reflect information furnished by the
Depositor to the Underwriter or (ii) the
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information contained in Ambac's financial statements incorporated by
reference in the Prospectus.
(d) Since the respective dates as of which information is
given in the Prospectus, there has not been any material adverse
change in the general affairs, management, financial condition, or
results of operations of the Depositor, otherwise than as set forth
or contemplated in the Prospectus as supplemented or amended as of
April 5, 2002 (the "Settlement Date").
(e) The Depositor has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware, is duly qualified to do business and is in good
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 the Operative Agreements to which it is a party 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) which assert the invalidity
of any of the Operative Agreements to which it is a party or the
Certificates, (c) which seek to prevent the issuance of the
Certificates or the consummation by the Depositor of any of the
transactions contemplated by any of the Operative Agreements to which
it is a party or (d) which might materially and adversely affect the
performance by the Depositor of its obligations under, or the
validity or enforceability of any of the Operative Agreements to
which it is a party or the Certificates.
(g) This Underwriting Agreement has been, and each other
Operative Agreement to which the Depositor is a party, when executed
and delivered as contemplated hereby and thereby, will have been,
duly authorized, executed and delivered by the Depositor, and this
Underwriting Agreement constitutes, and each other Operative
Agreement when executed and delivered as contemplated hereby and
thereby, 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 Underwriting Agreement or any other Operative Agreement,
limitations of public policy under applicable securities laws.
(h) The execution, delivery and performance of the Operative
Agreements to which it is a party by the Depositor and the
consummation of the transactions contemplated hereby and thereby, and
the issuance and delivery of the Certificates do not
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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 Certificate of Incorporation
or By-Laws of the Depositor or any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Depositor or any of its properties or assets,
which breach or violation would have a material adverse effect on the
business, operations or financial condition of the Depositor.
(i) The Depositor has no reason to believe that Deloitte &
Touche LLP is not an independent public accountant with respect to
the Depositor as required by the Securities Act and the Rules and
Regulations.
(j) When the Certificates are duly and validly executed and
authenticated by the Trustee and delivered in accordance with the
Pooling and Servicing Agreement and paid for, the Certificates will
be validly issued and outstanding and entitled to the benefits and
security afforded 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 Underwritten Certificates to the Underwriter, or
the consummation by the Depositor of the other transactions
contemplated by the Operative Agreements, except such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or blue sky laws in connection with
the purchase and distribution of the Underwritten Certificates by the
Underwriter 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 the Depositor has not received notice of any proceedings 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) be the sole beneficial
owner of the Contracts 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 Contracts, in the
Contract Purchase Agreement or in the Certificates; and (iii) have
the power and authority to sell its interest in the Contracts to the
Trust and to sell the Underwritten Certificates to the Underwriter.
Upon execution and delivery of the Pooling and Servicing Agreement by
the Trustee, the Trust will have acquired beneficial ownership of all
of the Depositor's right, title and
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interest in and to the Contracts. Upon delivery to the Underwriter of
the Underwritten Certificates, the Underwriter will have good title to
the Underwritten Certificates, free and clear of any Liens.
(n) As of the Cut-off Date, each of the Contracts will meet
the eligibility criteria described in the Prospectus and will conform
in all material respects to the descriptions thereof contained in the
Prospectus.
(o) 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.
(p) At the Settlement Date, the Underwritten Certificates
and the Operative Documents will conform in all material respects to
the descriptions thereof contained in the Prospectus.
(q) At the Closing Date and at the Settlement Date, (i) the
Class A-1, Class A-2 and Class A-IO Certificates will have been rated
"Aaa" by Xxxxx'x Investors Service, Inc. ("Moody's") and "AAA" by
Standard & Poor's Ratings Services ("S&P", and together with Xxxxx'x,
the "Rating Agencies"), (ii) the Class M-1 Certificates will have
been rated "AA" by S&P and "Aa2" by Moody's, (iii) the Class M-2
Certificates will have been rated "A" by S&P and "A2" by Moody's,
(iv) the Class B-1 Certificates will have been rated "BBB" by S&P and
"Baa2" by Moody's and the Class B-2 Certificates will have been rated
"BB-" by S&P and "Ba2" by Moody's.
(r) Any taxes, fees and other governmental charges in
connection with the execution, delivery and issuance of the Operative
Agreements and the Certificates have been paid or will be paid at or
prior to the Closing Date.
(s) At the Closing Date and at the Settlement Date, each of
the representations and warranties of the Depositor set forth in the
Operative Agreements will be true and correct in all material
respects.
Any certificate signed by an officer of the Depositor and delivered
to the Underwriter or counsel for the Underwriter in connection with an
offering of the Underwritten Certificates shall be deemed to be a
representation and warranty as to the matters covered thereby to each person
to whom the representations and warranties in this Section 1 are made.
SECTION 2. Purchase and Sale. The commitment of the Underwriter to
purchase the Underwritten Certificates pursuant to this Underwriting 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
Underwritten Certificates and agrees to sell to the Underwriter, and the
Underwriter agrees (except as provided in Section 11) to purchase from the
Depositor, the aggregate principal balance (or, in the case of the Class A-IO
Certificates, the aggregate notional amount) of the Underwritten Certificates
set forth in Schedule A for the aggregate purchase price of $710,278,607.
6
SECTION 3. Delivery and Payment. Delivery of and payment for the
Underwritten Certificates to be purchased by the Underwriter shall be made at
the offices of Xxxxxx Xxxxxx Xxxxx & Xxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx, or at such other place as shall be agreed upon by the Underwriter and
the Depositor at 10:00 a.m. New York time on March 28, 2002 or at such other
time or date as shall be agreed upon in writing by the Underwriter 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 Underwritten Certificates shall be
made to the Underwriter for the account of the Underwriter against payment of
the purchase price thereof. The Underwritten Certificates shall be in such
authorized denominations and registered in such names as the Underwriter may
request in writing at least two business days prior to the Closing Date. The
Underwritten Certificates will be made available for examination by the
Underwriter no later than 2:00 p.m. New York City time on the first business
day prior to the Closing Date.
SECTION 4. Offering by the Underwriter. It is understood that,
subject to the terms and conditions hereof, the Underwriter propose to offer
the Underwritten Certificates for sale to the public as set forth in the
Prospectus.
SECTION 5. Covenants of the Depositor. The Depositor covenants and
agrees as follows:
(a) To prepare (by no later than the second business day
immediately preceding the Settlement Date) the Prospectus in a form
approved by the Underwriter 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 Underwriter and to make no
further amendment or any supplement to the Registration Statement or
to the Prospectus prior to the Settlement Date except as permitted
herein; to advise the Underwriter, 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 Settlement Date or
any supplement to the Prospectus or any amended Prospectus has been
filed prior to the Settlement Date and to furnish the Underwriter
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 Underwritten Certificates to advise the
Underwriter promptly 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 Underwritten 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.
7
(b) To furnish promptly to the Underwriter and to counsel
for the Underwriter 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 Underwriter such number of
the following documents as the Underwriter shall reasonably request:
(i) conformed copies of the Registration Statement as originally
filed with the Commission and each amendment thereto (in each case
including exhibits); (ii) the Prospectus and any amended or
supplemented Prospectus; and (iii) any document incorporated by
reference in the Prospectus (including exhibits thereto). If the
delivery of a prospectus is required at any time in connection with
the offering or sale of the Underwritten 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 Underwriter and, upon the Underwriter's request, shall file such
document and prepare and furnish without charge to the Underwriter
and to any dealer in securities as many copies as the Underwriter 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.
(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
Underwriter, be required by the Securities Act or requested by the
Commission.
(e) The Depositor will (i) cause any Computational Materials
or any Structural Term Sheet (each as defined below in this
subsection) with respect to the Underwritten Certificates which are
delivered by the Underwriter to the Depositor to be filed with the
Commission on an Additional Materials 8-K (as defined below) (A) at
or before the time of filing of the Prospectus pursuant to Rule
424(b) under the Securities Act in the case of Computational
Materials or any Structural Term Sheets provided to investors prior
to the availability of such Prospectus, and (B) within two business
days of first use in the case of Computational Materials or any
Structural Term Sheet provided to investors subsequent to the
availability of, but before the sending or giving of, such Prospectus
and (ii) cause any Collateral Term Sheet (as defined below in this
subsection) with respect to the Underwritten Certificates which are
delivered by any Underwriter to the Depositor to be filed with the
Commission on an Additional Materials 8-K within two business days
after the date on which such Underwriter advises the Depositor that
such Collateral Term Sheet was first used; provided, however, that
the Depositor shall have no obligation to file any materials which,
in the reasonable determination of the Depositor after consultation
with the Underwriter, (x) are not required to be filed pursuant to
the Xxxxxx Letters and/or the PSA Letter (each as defined below) or
(y) contain any erroneous
8
information or 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; it being understood, however, that
the Depositor shall have no obligation to review or pass upon the
accuracy or adequacy of, or to correct, any Computational Materials,
Structural Term Sheets or Collateral Term Sheets provided by the
Underwriter to the Depositor as aforesaid. For purposes of this
subsection (e), (1) the term "Computational Materials" shall mean
those materials 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 and certain affiliates and the no action
letter dated May 27, 1994 issued by the Division of Corporation
Finance of the Commission to the Public Securities Association
(together, the "Xxxxxx Letters") and the no-action letter dated
February 17, 1995 issued by the Division of Corporation Finance to
the Public Securities Association (the "PSA Letter") for which the
filing of such material on an Additional Materials 8-K is a condition
of the relief granted in such letters; (2) the terms "Structural Term
Sheet" and "Collateral Term Sheet" shall mean those materials which
constitute "structural term sheets" and "collateral term sheets"
within the meaning of the PSA Letter for which the filing of such
material on an Additional Materials 8-K is a condition of the relief
granted in such letter; and (3) the term "Additional Materials 8-K"
shall mean a Current Report on Form 8-K used to file Computational
Materials, Structural Term Sheets and/or Collateral Term Sheets.
(f) To furnish the Underwriter and counsel for the
Underwriter, prior to filing with the Commission, and to obtain the
consent of the Underwriter for the filing of the following documents
relating to the Certificates: any (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.
(g) To make generally available to holders of the
Underwritten Certificates as soon as practicable, but in any event
not later than ninety (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 (12) consecutive
months beginning not later than the first day of the first fiscal
quarter following the Closing Date.
(h) To use its best efforts, in cooperation with the
Underwriter, to qualify the Underwritten Certificates for offering
and sale under the applicable securities laws of such states and
other jurisdictions of the United States or elsewhere as the
Underwriter 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 Underwritten Certificates; provided, however,
that in connection therewith, the Depositor shall not be required to
qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction. 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 Underwritten Certificates
have been so qualified.
9
(i) Unless the Underwriter shall otherwise have given its
written consent, no pass-through certificates or debt instruments
backed by manufactured housing installment sale contracts and
installment loan agreements or other similar securities representing
interest in or secured by other manufactured housing installment sale
contracts and installment loan agreements originated or owned by the
Depositor or the Seller shall be publicly offered or sold nor shall
the Depositor or the Seller enter into any contractual arrangements
that contemplate the public offering or sale of such securities for a
period of seven (7) business days following the commencement of the
offering of the Underwritten Certificates to the public.
(j) So long as the Underwritten Certificates shall be
outstanding the Depositor shall cause the Trustee, pursuant to the
Pooling and Servicing Agreement, to deliver to the Underwriter as
soon as such statements are available to be furnished: (i) the annual
statement as to compliance delivered to the Trustee pursuant to
Section 3.20 of the Pooling and Servicing Agreement and (ii) the
annual statement of a firm of independent public accountants
furnished to the Trustee pursuant to Section 3.21 of the Pooling and
Servicing Agreement.
(k) To apply the net proceeds from the sale of the
Underwritten Certificates in the manner set forth in the Prospectus
Supplement.
SECTION 6. Conditions to the Underwriter's Obligations. The
obligations of the Underwriter to purchase the Underwritten Certificates
pursuant to this Underwriting Agreement are subject to: (i) the accuracy on
and as of the Closing Date and the Settlement Date of the representations and
warranties on the part of the Depositor herein contained; (ii) the performance
by the Depositor of all of its obligations hereunder; and (iii) the following
conditions as of the Closing Date (or, if expressly indicated below, the
Settlement Date):
(a) The Underwriter 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.
(b) The Underwriter shall not have discovered and disclosed
to the Depositor on or prior to the Settlement 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 the Underwriter and its
counsel, is material and is required to be stated therein or is
necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters
relating to the authorization, form and validity of the Operative
Agreements, the Certificates, the Registration Statement and the
Prospectus, and all other legal matters relating to this Underwriting
Agreement and the transactions contemplated hereby shall be
satisfactory in all respects to the Underwriter and its counsel, and
the Depositor shall have furnished to Underwriter
10
and its counsel all documents and information that they may
reasonably request to enable them to pass upon such matters.
(d) Xxxxxx Xxxxxx Xxxxx & Xxxx LLP shall have furnished to
the Underwriter their written opinion, as special counsel to the
Depositor and EMC, addressed to the Underwriter and dated the Closing
Date (or, in the case of clauses (i) through (v), dated the
Settlement Date, in form and substance satisfactory to the
Underwriter, to the effect that:
(i) The Registration Statement has become effective
under the Securities Act of 1933, as amended (the "Act"); to
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 and the Prospectus, as of their
respective effective or issue dates (in each case other than
the documents incorporated therein by reference (including,
without limitation, (i) the "Computational Materials",
"Structural Term Sheets" and "Collateral Term Sheets" filed
by the Depositor with the Commission on Form 8-K, (ii) the
information relating to Ambac) and the financial and
statistical information contained therein, as to which such
counsel expresses no opinion, complied as to form in all
material respects with the applicable requirements of the
Act and the rules and regulations thereunder;
(ii) The conditions to the use by the Depositor of
a registration statement on Form S-3 under the Act, as set
forth in the General Instructions to Form S-3, have been
satisfied with respect to the Registration Statement;
(iii) To such counsel's knowledge, 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;
(iv) The statements in the Prospectus under the
headings "ERISA Considerations" and "Certain Federal Income
Tax Considerations", and the statements in the Prospectus
Supplement under the headings "Summary-Federal Tax
Considerations" and "-ERISA Considerations", "Certain
Federal Income Tax Consequences" and "ERISA Considerations",
to the extent that they constitute matters of federal law or
legal conclusions with respect thereto, have been reviewed
by us and are correct in all material respects with respect
to those consequences or aspects that are discussed;
(v) The Underwritten Certificates, the Pooling and
Servicing Agreement and the Contract Purchase Agreement
conform in all material respects to the descriptions thereof
contained in the Prospectus;
11
(vi) The Underwriting Agreement has been duly and
validly authorized, executed and delivered by the Depositor;
(vii) Assuming that the Pooling and Servicing
Agreement has been duly authorized, executed and delivered
by the parties thereto, it constitutes a valid, legal and
binding agreement of the Depositor, enforceable against the
Depositor in accordance with its terms, subject, as to
enforceability, to bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights
generally and to general principles of equity regardless of
whether enforcement is sought in a proceeding in equity or
at law;
(viii) Assuming that the Insurance Agreement has
been duly authorized, executed and delivered by the parties
thereto, it constitutes a valid, legal and binding agreement
of the Depositor and the Seller, enforceable against the
Depositor and the Seller in accordance with its terms,
subject, as to enforceability, to bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting
creditors' rights generally and to general principles of
equity regardless of whether enforcement is sought in a
proceeding in equity or at law;
(ix) Assuming that the Contract Purchase Agreement
has been duly authorized, executed and delivered by the
parties thereto, it constitutes a valid, legal and binding
agreement of the Depositor and the Seller, enforceable
against the Depositor and the Seller in accordance with its
terms, subject, as to enforceability, to bankruptcy,
insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and to general
principles of equity regardless of whether enforcement is
sought in a proceeding in equity or at law;
(x) Assuming that the Certificates have been duly
and validly authorized, executed and authenticated in the
manner contemplated in the Pooling and Servicing Agreement,
when delivered and paid for, the Certificates will be
validly issued and outstanding and entitled to the benefits
of the Pooling and Servicing Agreement;
(xi) The Class A Certificates, Class A-IO
Certificates and Class M-1 Certificates will be mortgage
related securities, as defined in Section 3(a)(41) of the
Securities Exchange Act of 1934, as amended (the "1934
Act"), so long as such Certificates are rated in one of the
two highest rating categories by at least one nationally
recognized statistical rating organization; and
(xii) 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.
Such counsel shall have endeavored to see that the Registration
Statement and the Prospectus comply with the Act and the rules and
regulations of the Commission thereunder relating to registration
statements on Form S-3 and related prospectuses, but such counsel
cannot, of course, make any representation to you as to the accuracy or
12
completeness of statements of fact contained therein. Nothing,
however, shall have come to such counsel's attention that would lead
such counsel to believe that the Registration Statement, at the time
it 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 or that the
Prospectus, as of the date of the Prospectus Supplement or at the
Settlement Date, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (other than
(i) the information incorporated therein by reference (including,
without limitation, any Computational Materials, Structural Term
Sheets and Collateral Term Sheets), (ii) the information included
therein relating to the Contracts, the Originator and the Servicer,
(iii) the financial, statistical and numerical information contained
therein and (iv) any information included or incorporated by
reference therein relating to Ambac, as to which in each case such
counsel need make no statement.
(e) Xxxxxx Xxxxxx Xxxxx & Xxxx LLP shall have furnished to
the Underwriter their written opinion, as special tax counsel to the
Seller, addressed to the Underwriter and dated the Closing Date, in
form and substance satisfactory to the Underwriter, to the effect
that as of the Closing Date, each REMIC created pursuant to the
Pooling and Servicing Agreement will qualify as a REMIC within the
meaning of Section 860D of the Code, assuming (i) an election is made
to treat the assets of each REMIC as a REMIC, (ii) compliance with
the Pooling and Servicing Agreement, and (iii) compliance with
changes in the law, including any amendments to the Code or
applicable Treasury regulations thereunder. The Regular Interest
Certificates represent ownership of regular interests in the Master
REMIC. The Class R Certificates represent ownership of the sole class
of residual interest in each REMIC created pursuant to the Pooling
and Servicing Agreement. The rights of the Regular Interest
Certificates (excluding the Class A-IO Certificates) to receive
payments from the Basis Risk Reserve Fund represent, for federal
income tax purposes, contractual rights that are separate from their
regular interests within the meaning of Treasury regulations Section
1.860G-2(i).
(f) Xxxxxx Xxxxxxxxx, Esq., counsel to the Depositor and EMC,
shall have furnished to the Underwriter his written opinion, as
counsel to the Depositor and EMC, addressed to the Underwriter and
dated the Closing Date, in form and substance satisfactory to the
Underwriter, to the effect that:
(i) Each of the Depositor and EMC is a corporation
duly organized, validly existing and in good standing under
the laws of the State of Delaware, with full corporate power
and authority to own its assets and conduct its business, to
execute, deliver and perform the Operative Agreements to
which it is a party and the transactions contemplated
thereby.
(ii) Neither the Depositor nor EMC is in violation
of its Certificate of Incorporation or By-laws or in default
in the performance or observance of any material obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other
instrument to which it is a party or by which it or its
properties may be bound, which default might result
13
in any material adverse change in the financial condition,
earnings, affairs or business of the Depositor or EMC, as
applicable, or which might materially and adversely affect
the ability of the Depositor or EMC, as applicable, to
perform its obligations under any of the Operative
Agreements to which it is a party.
(iii) Each of the Operative Agreements to which the
Depositor or EMC is a party has been duly authorized,
executed and delivered by the Depositor or EMC, as
applicable, and, assuming the due authorization, execution
and delivery of such agreements by the other parties
thereto, such agreements constitute valid and binding
obligations, enforceable against the Depositor or EMC, as
applicable, 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
Underwriting Agreement and the Contract Purchase Agreement,
limitations of public policy under applicable securities
laws.
(iv) The execution, delivery and performance by the
Depositor and EMC of the Operative Agreements to which it is
a party and the consummation of the transactions
contemplated hereby and thereby, do not and will not
conflict with or result in a breach or violation of any of
the terms of provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Depositor or EMC,
as applicable, is a party or by which the Depositor or EMC,
as applicable, is bound or to which any of the property or
assets of the Depositor or EMC, as applicable, is subject,
which breach or violation would have a material adverse
effect on the business, operations or financial condition of
the Depositor or EMC, as applicable, nor will such actions
result in a violation of the provisions of the Certificate
of Incorporation or By-laws of the Depositor or EMC, as
applicable, or any statute or any order, rule or regulation
of any court or governmental agency or body having
jurisdiction over the Depositor or EMC, as applicable, or
any of its properties or assets, which breach or violation
would have a material adverse effect on the business,
operations or financial condition of the Depositor or EMC,
as applicable.
(v) To my knowledge, there are no actions,
proceedings or investigations pending before or threatened
by any court, administrative agency, or other tribunal to
which the Depositor or EMC is a party or of which any of its
properties is the subject: (a) which if determined adversely
to the Depositor or EMC, as applicable, would have a
material adverse effect on the business, results of
operations or financial condition of the Depositor or EMC,
as applicable; (b) asserting the invalidity of any of the
Operative Agreements to which it is a party; (c) seeking to
prevent the consummation by the Depositor or EMC, as
applicable, of any of the transactions contemplated by any
of the Operative Agreements to which it is a party; or (d)
which might materially and adversely affect the performance
by the Depositor or EMC, as applicable, of its obligations
under, or
14
the validity or enforceability of any of the Operative
Agreements to which it is a party.
(g) Xxxx X. Xxxxxx, counsel to Bear Xxxxxxx Financial
Products, Inc. ("BSFP") shall have furnished to the Underwriter his
written legal opinion, as counsel to BSFP, addressed to the
Underwriter and dated the Closing Date in form and substance
satisfactory to the Underwriter and its counsel.
(h) The Underwriter shall have received the favorable
opinion, dated the Closing Date, of Xxxxxx Xxxxxx Xxxxx & Xxxx LLP,
special counsel for the Seller, addressed to Ambac and the Rating
Agencies, with respect to certain matters relating to the transfer of
the Contracts, from the Seller to the Depositor.
(i) The Underwriter shall have received the favorable
opinions, dated the Closing Date, of Xxxxxx Xxxxxx Xxxxx & Xxxx LLP,
special counsel to the Depositor, addressed to Ambac and the Rating
Agencies, with respect to certain matters relating to the transfer of
the Contracts from the Depositor to the Trust.
(j) The Underwriter shall have received the favorable
opinions of Xxxxxx, Xxxxxxxxxx & Xxxxxxxx LLP, special counsel for
the Originator and the Servicer, (i) dated the Closing Date and
addressed to the Seller, the Servicer, the Depositor, Ambac, the
Underwriter and the Rating Agencies, in form and substance
satisfactory to the Underwriter and its counsel and (ii) dated the
Settlement Date and addressed to the Underwriter, in each case.
(k) The favorable opinion, dated as of the Closing Date, of
Xxxxxxx X. Xxxxxxxx, Esq., General Counsel of the Servicer, addressed
to the Underwriter and in form and substance satisfactory to the
Underwriter and its counsel.
(l) The favorable opinion of counsel to the Trustee, dated
as of the Closing Date, addressed to the Underwriter and in form and
substance satisfactory to the Underwriter and its counsel.
(m) The favorable opinion of Xxxxxxxx, Xxxxxx & Finger,
special Delaware counsel to the Depositor, dated as of the Closing
Date, addressed to the Underwriter, Ambac and the Rating Agencies and
in form and substance satisfactory to the Underwriter and its
counsel.
(n) On the Closing Date the Underwriter shall have received
any additional opinions delivered by counsel pursuant to the request
of Ambac or any Rating Agency rating the Certificates.
(o) The Depositor shall have furnished to the Underwriter:
(1) A certificate, dated the Closing Date and signed by the Chairman
of the Board, the President or a Vice President of the Depositor stating:
15
(i) Attached as Exhibit A is a true and correct
copy of the Certificate of Incorporation, By-laws of the
Depositor as in full force and effect o the date hereof and
a Certificate of Good Standing, dated as of March 22, 2002,
issued by the State of Delaware with respect to the
Depositor. No event has occurred since the date thereof that
has affected the good standing of the Depositor under the
laws of the State of Delaware. Attached as Exhibit B are the
Resolutions of the Board of Directors of the Depositor,
dated as of March 28, 2002, as in full force and effect.
(ii) To the best of such officer's knowledge, no
consent, approval, authorization or order of any State of
Delaware or federal court or governmental agency or body is
required for the execution, delivery and performance by the
Depositor of, or compliance by the Depositor with (a) the
Pooling and Servicing Agreement, dated as of March 1, 2002
(the "Pooling and Servicing Agreement") among Bear Xxxxxxx
Asset Backed Securities, Inc. (the "Depositor"), as
Depositor, GreenPoint, LLC ("GreenPoint"), as servicer and
custodian and Xxxxx Fargo Bank Minnesota, National
Association, as backup servicer, certificate administrator
and trustee (the "Trustee"); (b) the Contract Purchase
Agreement, dated as of March 1, 2002 (the "Contract Purchase
Agreement") between the EMC Mortgage Corporation ("EMC"), as
seller, and the Depositor, as purchaser; (c) the Insurance
and Indemnity Agreement, dated as of March 28, 2002 (the
"Insurance Agreement") among Ambac Assurance Corporation, as
certificate insurer, EMC, GreenPoint, the Depositor and the
Trustee; and (d) an Underwriting Agreement dated March 21,
2002 (the "Underwriting Agreement") among the Depositor, EMC
and Bear, Xxxxxxx & Co. Inc. ("Bear Xxxxxxx"). The Pooling
and Servicing Agreement, the Contract Purchase Agreement,
the Insurance Agreement, the Underwriting Agreement and the
Certificate Purchase Agreement are hereinafter referred to
as the "Agreements".
(iii) To the best of such officer's knowledge,
there are no actions, proceedings or investigations pending
or threatened against the Depositor before any court,
administrative agency or other tribunal (i) asserting the
invalidity of any of the Agreements or the Certificates,
(ii) seeking to prevent the consummation of any of the
transactions contemplated in the Agreements or (iii) that
might materially and adversely affect the performance by the
Depositor of its obligations under, or the validity or
enforceability of, any of the Agreements.
(iv) To the best of such officer's knowledge, (i)
the Depositor has not been and will not be a party to any
fraud or illegality affecting any of the Agreements or any
of the documents included or to be included in any Contract
File, (ii) no breach of any of the Agreements, or fraud or
mistake on the part of any party to any of the Agreements in
connection with the transactions contemplated by the
Agreements, has occurred, (iii) no party to any of the
Agreements has taken any action that is unreasonable,
arbitrary or capricious, or that is not taken in good faith
or in a commercially reasonable manner, affecting the
documents included in any Contract File in connection with
the transactions
16
contemplated by the Agreements and (iv) the Depositor was
solvent at the time of the issuance of the Certificates
pursuant to the Pooling and Servicing Agreement.
(v) No proceedings looking toward merger,
liquidations, dissolution or bankruptcy of the Depositor are
pending or contemplated.
(vi) Each person who, as an officer or
representative of the Depositor, executed any of the
Agreements or any other document delivered in connection
with the Agreements, was, at the time of such execution and
delivery, and is now, duly elected or appointed, qualified
and acting as such officer or representative of the
Depositor, and the signatures of such persons appearing on
such documents are their genuine signatures.
(vii) Attached as Exhibit B is a certified true
copy of the Resolutions of the Board of Directors, dated as
of March 28, 2002 a Consent of the stockholder, dated as of
March 28, 2002, and a Secretary's Certificate, dated as of
March 28, 2002, each with respect to the Agreements, the
issuance of the Certificates and other related matters.
and (2) a certificate, dated the Settlement Date and signed by the
Chairman of the Board, the President or a Vice President of the Depositor
stating nothing has come to his or her attention that would lead such officer
to believe that the Registration Statement includes, or that the Prospectus
will include, any untrue statement of a material fact or omits, or will omit,
as applicable, to state a material fact necessary to make the statements
therein not misleading.
(p) The Seller shall have furnished to the Underwriter (1) a
certificate, dated the Closing Date and signed by the Chairman of the
Board, the President or a Vice President of the Seller, stating:
(i) The representations and warranties made by the
Seller in each of the Agreements to which the Seller is a
party are true and correct as of the Closing Date.
(ii) There has been no amendment or other document
filed affecting the Certificate of Incorporation or By-Laws
of the Seller since November 28, 2001 and no such amendment
has been authorized.
(iii) 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 Seller.
(iv) The Seller 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 Supplement, and the
Seller has not received notice of any proceedings relating
to the revocation or modification of any such license,
certificate, authority or permit which if decided adversely
to the Seller would,
17
singly or in the aggregate, materially and adversely affect
the conduct of its business, operations or financial
condition.
(v) At the time of execution and delivery of the
Contract Purchase Agreement, the Seller will: (i) be the
sole beneficial owner of the Contracts conveyed by the
Seller to the Depositor, 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
Contracts; and (iii) have the power and authority to sell
its interest in the Contracts to the Depositor.
and (2) a certificate dated the Settlement Date and signed by the
Chairman of the Board, the President or a Vice President of the Seller
stating:
(i) Since the respective date as of which
information is given for use in the Prospectus, there has
not been any material adverse change in the general affairs,
management, financial condition, or results of operations of
the Seller, otherwise than as shall be set forth or
contemplated in the Prospectus, as supplemented or amended.
(ii) Such officer has carefully reviewed the
Prospectus Supplement and all statements contained therein
relating to the Seller and the Contacts are accurate in all
material respects, and nothing has come to such officer's
attention that would lead such officer to believe that the
Prospectus Supplement contains, with respect to the Seller
or the Contracts, any untrue statement of a material fact or
omits to state a material fact necessary in order to make
the statements therein relating to the Seller or the
Contracts, in light of the circumstances with which they
were made, not misleading.
(q) XxxxxXxxxx shall have furnished the Underwriter a
certificate, dated the Closing Date and signed by the Managing
Member, Chairman of the Board, President or Vice President of the
Seller stating:
(i) The representations and warranties made by
GreenPoint in each of the Operative Agreements to which
GreenPoint is a party are true and correct as of the Closing
Date.
(ii) There has been no amendment or other document
filed affecting the Certificate of Incorporation or By-Laws
of GreenPoint since September 20, 1999 and no such amendment
has been authorized.
(iii) 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 GreenPoint.
and (2) a certificate dated the Settlement Date and signed by the
Chairman of the Board, the President or a Vice President of GreenPoint
stating:
18
(iv) In connection with the delivery of the
Prospectus Supplement in connection with the transactions
contemplated by the Pooling and Servicing Agreement relating
to the Certificates, such officer certifies that there has
been no material change in the information contained in the
section "The Originator and The Servicer" as of the date
hereof.
(r) The Trustee shall have furnished to the Underwriter 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 each of the Operative
Agreements to which the Trustee is a party 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 Underwriter shall reasonably
request.
(s) At the Closing Date and at the Settlement Date, (i) the
Class A-1, Class A-2 and Class A-IO Certificates will have been rated
"Aaa" by Xxxxx'x Investors Service, Inc. ("Moody's") and "AAA" by
Standard & Poor's Ratings Services ("S&P", and together with Moody's,
the "Rating Agencies"), (ii) the Class M-1 Certificates will have
been rated "AA" by S&P and "Aa2" by Moody's, (iii) the Class M-2
Certificates will have been rated "A" by S&P and "A2" by Moody's,
(iv) the Class B-1 Certificates will have been rated "BBB" by S&P and
"Baa2" by Moody's and the Class B-2 Certificates will have been rated
"BB-" by S&P and "Ba2" by Moody's.
(t) The Depositor shall have furnished to the Underwriter
such further information, certificates and documents as the
Underwriter may reasonably have requested not less than three full
business days prior to the Closing Date.
(u) Prior to the Closing Date (and, as applicable, the
Settlement Date), counsel for the Underwriter 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
Underwritten Certificates as herein contemplated shall be
satisfactory in form and substance to the Underwriter and counsel for
the Underwriter.
(v) Subsequent to the execution and delivery of this
Underwriting 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 any
attack on, outbreak or escalation of hostilities or acts of terrorism
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
19
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 judgment of the Underwriter,
impractical or inadvisable to proceed with the public offering or
delivery of the Underwritten Certificates on the terms and in the
manner contemplated in the Prospectus.
(w) The Underwriter shall have received from Deloitte &
Touche LLP, letters, dated the Settlement Date and satisfactory in
form and substance to the Underwriter and its counsel, to the effect
that they have performed certain specified procedures, all of which
have been agreed to by the Underwriter, as a result of which they
determined that certain information of an accounting, financial or
statistical nature set forth in the Prospectus Supplement agrees with
the records of the Seller and the Servicer excluding any questions of
legal interpretation.
(x) The Underwriter shall have received from Deloitte &
Touche LLP, letters, dated the Settlement Date and satisfactory in
form and substance to the Underwriter and its counsel, confirming as
of such date the information set forth in the letter provided
pursuant to clause (w).
(y) The Underwriter shall have received from Deloitte &
Touche LLP, certified public accountants, a letter dated the date
hereof and satisfactory in form and substance to the Underwriter and
its counsel, to the effect that they have performed certain specified
procedures and recomputations as a result of which they have
confirmed the numerical information set forth in the Computational
Materials, Structural Term Sheets and Collateral Term Sheets.
If any condition specified in this Section 6 shall not have been
fulfilled when and as required to be fulfilled, this Underwriting Agreement
may be terminated by the Underwriter 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 7.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Underwriting 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 Underwriter.
SECTION 7. Payment of Expenses. As between the Depositor and the
Underwriter, the Depositor agrees to pay all expenses incident to the
performance of its obligations under this Agreement, including without
limitation those relating to: (a) the costs incident to the authorization,
issuance, sale and delivery of the Certificates and any taxes payable in
connection therewith; (b) a portion of the fees previously paid to the
Commission with respect to the filing under the Securities Act of the
Registration Statement and any amendments and exhibits thereto; (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 (including the Prospectus Supplement) or any document incorporated
by reference therein, all as provided in this Underwriting Agreement; (d) the
costs of reproducing and distributing this Underwriting
20
Agreement; (e) the fees and expenses of qualifying the Underwritten
Certificates under the securities laws of the several jurisdictions as
provided in Section 5(h), if necessary, 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 Underwriter); (f) any fees charged
by securities rating services for rating the Certificates; and (g) all other
costs and expenses incident to the performance of the obligations of the
Depositor (including costs and expenses of your counsel).
If this Underwriting Agreement is terminated by the Underwriter in
accordance with the provisions of Section 6 or Section 11, the Depositor shall
cause the Underwriter to be reimbursed for all reasonable out-of-pocket
expenses, including fees and disbursements of Xxxxxx Xxxxxx Xxxxx & Xxxx LLP,
counsel for the Underwriter.
SECTION 8. Indemnification and Contribution. (a) The Depositor agrees
to indemnify and hold harmless the Underwriter and the Seller and each person,
if any, who controls the Underwriter or the Seller within the meaning of
Section 15 of the Securities Act or Section 20 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
Underwritten Certificates), to which the Underwriter or the Seller or any such
controlling person may become subject, under the Securities Act, the Exchange
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 or any amendment thereof or supplement
thereto 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 or any amendment thereof or supplement
thereto 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 the Underwriter, the Seller and each
such controlling person promptly upon demand for any legal or other expenses
reasonably incurred by the Underwriter, the Seller 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 the
Underwriter or the Seller specifically for inclusion therein, it being
understood that the only information furnished by or on behalf of (1) the
Underwriter for use in connection with the preparation of the Registration
Statement or the Prospectus is described in Section 8(i) hereof; (2) the
Seller, is the Seller-Provided Information and the Seller Prospectus
Information. The foregoing indemnity agreement is in addition to any liability
which the Depositor may otherwise have to the Underwriter or the Seller or any
controlling person of the Underwriter or the Seller.
21
(b) The Underwriter agrees to indemnify and hold harmless the
Depositor and the Seller, each of their directors, each of the officers of the
Depositor who signed the Registration Statement, and each person, if any, who
controls the Depositor or the Seller within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act against any and all loss,
claim, damage or liability, or any action in respect thereof, to which the
Depositor, the Seller or any such director, officer or controlling person may
become subject, under the Securities Act, the Exchange 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 or any amendment thereof or supplement thereto 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, or any amendment thereof or supplement
thereto 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, 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 the Underwriter specifically for inclusion
therein, and shall reimburse the Depositor and the Seller and any such
director, officer or controlling person for any legal or other expenses
reasonably incurred by the Depositor, the Seller or any director, officer or
controlling person in connection with investigating or defending or preparing
to defend against any such loss, claim, damage, liability or action as such
expenses are incurred. The only information furnished by or on behalf of the
Underwriter for use in connection with the preparation of the Registration
Statement or the Prospectus is described in Section 8(i) hereof. The foregoing
indemnity agreement is in addition to any liability which the Underwriter may
otherwise have to the Depositor, the Seller or any such director, officer or
controlling person.
(c) The Seller agrees to indemnify and hold harmless the Underwriter
and the Depositor and each of their directors, each of their officers and each
person or entity who controls the Underwriter or the Depositor or any such
person, within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act, against any and all losses, claims, damages or
liabilities, joint and several, to which the Underwriter or the Depositor, or
any such person or entity may become subject, under the Securities Act, the
Exchange Act or otherwise, and will reimburse the Underwriter and the
Depositor, each such director and officer and each such controlling person for
any legal or other expenses incurred by the Underwriter or the Depositor or
such controlling person in connection with investigating or defending any such
loss, claims, damages or liabilities insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact
contained in (i) the Registration Statement, the Prospectus Supplement or any
amendment or supplement to the Prospectus Supplement approved in writing by
the Seller, (ii) the Seller Prospectus Information (as defined below) or (iii)
the Computational Materials, Structural Term Sheets or Collateral Term Sheets
distributed by the Underwriter, unless such untrue statement or alleged untrue
statement of a material fact was made in reliance upon and in conformity with
Derived Information (as defined in Section 8(h) below) provided by the
Underwriter expressly for use in the Computational Materials, the Structural
Term Sheets or the
22
Collateral Term Sheets and the untrue statement or alleged untrue statement
did not derive from an inaccuracy in the Seller-Provided Information (as
defined in Section 8(h) below) used in the preparation of such Computational
Materials, Structural Term Sheets or Collateral Term Sheets, the omission or
the alleged omission to state therein a material fact necessary in order to
make the statements in the Prospectus Supplement or any amendment or
supplement to the Prospectus Supplement approved in writing by the Seller or
the Seller Prospectus Information, in light of the circumstances under which
they were made, not misleading, but only to the extent that such untrue
statement or alleged untrue statement or omission or alleged omission relates
to the information contained in the Prospectus Supplement (1) that is not
GreenPoint Information and (2) is not information provided by the Underwriter,
as described in clause (i) below (such information, the "Seller Prospectus
Information"). The Seller shall not be liable to the Underwriter and the
Depositor for Seller Prospectus Information with respect to any untrue
statement or alleged untrue statement or omission or alleged omission
contained in any Seller Prospectus Information, if such Seller Prospectus
Information was corrected subsequently and provided to the Underwriter and the
Depositor by the Seller prior to the date of the Prospectus Supplement. The
only information furnished by the Seller is the Seller-Prospectus Information
and the Seller Provided-Information (as defined in Section 8(h) below). As
used herein, the term "GreenPoint Information" means all the statements
contained in the Prospectus Supplement, (i) under the heading "Transaction
Overview--The Originator and Servicer", (ii) under the heading "The Originator
and the Servicer" and (iii) the last sentence of the first paragraph under
Prepayment and Yield Considerations.
(d) Promptly after receipt by any indemnified party under this
Section 8 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 8, 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 8 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 8.
If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to
assume the defense thereof with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the indemnified
party of its election to assume the defense of such claim or action, except to
the extent provided in the next following paragraph, the indemnifying party
shall not be liable to the indemnified party under this Section 8 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
23
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 Underwriter, if the
indemnified parties under this Section 8 consist of the Underwriter or any of
its controlling persons, or the Depositor, if the indemnified parties under
this Section 8 consist of the Depositor or any of the Depositor's directors,
officers or controlling persons, or the Seller, if the indemnified parties
under this Section 8 consist of the Seller or any of the Seller's directors,
officers or controlling persons.
Each indemnified party, as a condition of the indemnity agreements
contained in Sections 8(a), (b) and (c), 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
thirty (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.
(e) The Underwriter agrees to provide the Depositor, with a
copy to the Seller, for filing with the Commission on an Additional Materials
8-K (i) no later than two (2) Business Days prior to the day on which the
Prospectus Supplement is required to be filed pursuant to Rule 424 with a copy
of any Computational Materials and Structural Term Sheets (each as defined in
Section 5(e) hereof) distributed by the Underwriter and (ii) no later than one
(1) business day after first use with a copy of any Collateral Term Sheets (as
defined in Section 5(e) hereof) distributed by the Underwriter. If the
Underwriter does not provide any Computational Materials, Structural Term
Sheets and Collateral Term Sheets to the Depositor and the Seller pursuant to
this Section, the Underwriter shall be deemed to have represented, as of the
Settlement Date, that it did not provide any prospective investors with any
information in written or electronic form in connection with the offering of
the Underwritten Certificates that is required to be filed with the Commission
in accordance with the Xxxxxx Letters and the PSA Letter.
24
(f) The Underwriter agrees, assuming all Seller-Provided
Information (as defined in Section 8(h)) is accurate and complete in all
material respects, to indemnify and hold harmless the Depositor, the Seller,
each of the their respective officers and directors and each person who
controls the Depositor or the Seller within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, or any action in respect
thereof, to which they may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in
the Computational Materials, Structural Term Sheets and Collateral Term Sheets
provided by the Underwriter and agrees to reimburse each such indemnified
party for any legal or other expenses reasonably incurred by him, her or it in
connection with investigating or defending or preparing to defend any such
loss, claim, damage, liability or action as such expenses are incurred. The
obligations of the Underwriter under this Section 8(f) shall be in addition to
any liability which the Underwriter may otherwise have. The procedures set
forth in Section 8(d) shall be equally applicable to this Section 8(f).
(g) If the indemnification provided for in this Section 8
shall for any reason be unavailable to or insufficient to hold harmless an
indemnified party under Sections 8(a), (b), (c) or (f) 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, the Seller and the
Underwriter from the offering of the Underwritten 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
8(d), 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, the Seller and the Underwriter 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 the Underwriter, the Seller 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 and
the Seller bear to the total underwriting discounts and commissions received
by the Underwriter from time to time in negotiated sales of the related
Underwritten Certificates.
The relative fault of the Underwriter, the Seller 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 by the Depositor, the Seller or
by the Underwriter, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such statement or
omission and other equitable considerations.
The Depositor, the Seller and the Underwriter agree that it would not
be just and equitable if contributions pursuant to this Section 8(g) were to
be determined by pro rata allocation or by any other method of allocation
which does not take into account the equitable
25
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 8(g) shall be
deemed to include, for purposes of this Section 8(g), 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 8, in no case shall the Underwriter be
responsible for any amount in excess of (x) the amount received by the
Underwriter in connection with its resale of the Underwritten Certificates
over (y) the amount paid by the Underwriter to the Depositor for the
Underwritten Certificates 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.
(h) For purposes of this Section 8 (except as otherwise
provided) the terms "Computational Materials", "Structural Term Sheets" and
"Collateral Term Sheets" mean such portion, if any, of the information
delivered to the Depositor by the Underwriter pursuant to Section 8(e) for
filing with the Commission on an Additional Materials 8-K as:
(i) is not contained in the Prospectus without
taking into account information incorporated therein by
reference through an Additional Materials 8-K; and
(ii) does not constitute Seller-Provided Information.
"Seller-Provided Information" means the information and data set forth on any
computer tape (or other electronic or printed medium) furnished to the
Underwriter by or on behalf of the Seller concerning the assets comprising the
corpus of the Trust.
(i) Bear, Xxxxxxx & Co. Inc. confirms that the information
set forth in (i) the third sentence of the last paragraph on the cover page of
the Prospectus Supplement, (ii) the first sentence under the caption "RISK
FACTORS-A secondary market may not develop or may not continue to provide
sufficient liquidity for the offered certificates" and (iii) in the second
paragraph, the third paragraph and the fourth paragraph (as such information
relates to the Underwriter) under the caption "PLAN OF DISTRIBUTION" in the
Prospectus Supplement and the parties hereto acknowledge that such information
constitutes the only information furnished in writing by or on behalf of the
Underwriter for use in connection with the preparation of the Registration
Statement or the Prospectus.
SECTION 9. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Underwriting Agreement or contained in certificates of officers of the
Depositor or the Seller submitted pursuant hereto shall remain operative and
in full force and effect, regardless of any investigation made by or on behalf
of the Underwriter or controlling persons thereof, or by or on behalf of the
Depositor or the Seller, as applicable and shall survive delivery of any
Underwritten Certificates to the Underwriter.
SECTION 10. [RESERVED].
26
SECTION 11. Termination of this Underwriting Agreement. The
Underwriter may terminate this Underwriting 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 6(v) of this Underwriting Agreement
shall occur and be continuing. In the event of any such termination, the
covenant set forth in Section 5(g), the provisions of Section 7, the indemnity
agreement set forth in Section 8, and the provisions of Sections 9 and 16
shall remain in effect.
SECTION 12. Notices. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to Bear, Xxxxxxx & Co. Inc., shall be delivered or
sent by mail, telex or facsimile transmission to Bear, Xxxxxxx & Co.
Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attention: Asset
Backed Securities Group (Fax: 000-000-0000);
(b) if to the Depositor, shall be delivered or sent by mail,
telex or facsimile transmission to Bear Xxxxxxx Asset Backed
Securities, Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Chief Counsel (Fax: 000-000-0000);
(c) if to the Seller, shall be delivered or sent by mail,
telex or facsimile transmission to EMC Mortgage Corporation, 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Chief Counsel
(Fax: 000-000-0000).
SECTION 13. Persons Entitled to the Benefit of this Underwriting
Agreement. This Underwriting Agreement shall inure to the benefit of and be
binding upon the Underwriter, the Seller and the Depositor and their
respective successors. This Underwriting 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
Underwriting Agreement shall also be deemed to be for the benefit of the
person or persons, if any, who control the Underwriter within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange 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 or Section 20 of the
Exchange Act. Nothing in this Underwriting Agreement is intended or shall be
construed to give any person, other than the persons referred to in this
Section 13, any legal or equitable right, remedy or claim under or in respect
of this Underwriting Agreement or any provision contained herein.
SECTION 14. Survival. The respective indemnities, representations,
warranties and agreements of the Depositor, the Seller and the Underwriter
contained in this Underwriting Agreement, or made by or on behalf of them,
respectively, pursuant to this Underwriting Agreement shall survive the
delivery of and payment for the Underwritten Certificates and shall remain in
full force and effect, regardless of any investigation made by or on behalf of
any of them or any person controlling any of them.
SECTION 15. Definition of the Term "Business Day". For purposes of
this Underwriting Agreement, "Business Day" means any day on which the New
York Stock Exchange is open for trading.
27
SECTION 16. Governing Law; Submission to Jurisdiction. This
Underwriting Agreement shall be governed by and construed in accordance with
the laws of the State of New York without giving effect to the conflicts of
laws 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 Underwriting 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 17. Counterparts. This Underwriting Agreement may be executed
in counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
SECTION 18. Headings. The headings herein are inserted for
convenience of reference only and are not intended to be part of, or to affect
the meaning or interpretation of, this Underwriting Agreement.
* * *
28
If the foregoing correctly sets forth the agreement among the
Depositor, the Seller and the Underwriter, please indicate your acceptance in
the space provided for the purpose below.
Very truly yours,
BEAR XXXXXXX ASSET BACKED
SECURITIES, INC.
By: ________________________
Name:
Title:
CONFIRMED AND ACCEPTED, as
of the date first above written:
BEAR, XXXXXXX & CO. INC.
By: _____________________________
Name:
Title:
EMC MORTGAGE CORPORATION
By: ______________________________
Name:
Title:
SCHEDULE A
----------
Underwritten Certificates
---------------------------------------- --------------------------------------
Class Principal Balance
(Notional Amount)
---------------------------------------- --------------------------------------
A-1 $381,329,000
---------------------------------------- --------------------------------------
A-2 $175,000,000
---------------------------------------- --------------------------------------
A-IO $842,922,270*
---------------------------------------- --------------------------------------
M-1 $56,897,000
---------------------------------------- --------------------------------------
M-2 $61,112,000
---------------------------------------- --------------------------------------
B-1 $59,005,000
---------------------------------------- --------------------------------------
*Notional Amount.
A-1
