EXECUTION COPY
BEAR XXXXXXX ASSET BACKED SECURITIES, INC.
LIFE FINANCIAL HOME LOAN OWNER TRUST 1997-2
HOME LOAN ASSET BACKED NOTES, SERIES 1997-2
Class A-1, Class A-2, Class A-3, Class A-4,
Class M-1, Class M-2 and Class B Notes
UNDERWRITING AGREEMENT
August 25, 1997
BEAR, XXXXXXX & CO. INC.
As Underwriter
000 Xxxx 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 Life Financial
Home Loan Owner Trust 1997-2, Home Loan Asset Backed Notes in the series and
classes, in the respective original principal amounts and with the designations
set forth in Schedule A hereto (the Class A-1, Class A-2, Class A-3, Class A-4,
Class M-1, Class M-2 and Class B Notes, collectively, the "Notes"). Bear,
Xxxxxxx & Co. Inc. (the "Underwriter") is purchasing all of the Notes at the
prices set forth on Schedule A hereto.
The Notes will be issued pursuant to an indenture, to be dated as of
September 1, 1997 (the "Indenture"), between Life Financial Home Loan Owner
Trust 1997-2 (the "Trust") and Norwest Bank Minnesota, National Association, as
indenture trustee (the "Indenture Trustee"). The Depositor has also entered
into a trust agreement, dated as of September 4, 1997 (the "Trust Agreement"),
among the Depositor, as depositor, Life Investments Holdings, Inc., as the
company ("Life Investments"), Wilmington Trust Company, as owner trustee (the
"Owner Trustee"), and Norwest Bank Minnesota, National Association, as co-owner
trustee (the "Co-Owner Trustee"). The Notes will be secured by the assets of
the Trust pursuant to the Indenture. The Notes are described more fully in
Schedule A hereto and in a prospectus supplement furnished to you by the
Depositor. The assets of the Trust will initially include, among other things,
home loans to be transferred on the Closing Date (as defined herein) (the
"Initial Loans") in an amount of approximately $95,000,000 as of
the close of business on August 31, 1997 (the "Cut-Off Date") (the actual
aggregate unpaid principal balance of the Initial Loans as of the Cut-Off Date,
the "Original Pool Principal Balance") and such amounts as may be held by the
Indenture Trustee in the Pre-Funding Account (the "Pre-Funding Account"), the
Capitalized Interest Account (the "Capitalized Interest Account") and any other
accounts held by the Indenture Trustee for the benefit of the Noteholders, all
pursuant to a sale and servicing agreement, dated as of September 1, 1997 (the
"Sale and Servicing Agreement") among the Trust, as issuer, the Depositor, as
depositor, Life Savings Bank, Federal Savings Bank ("Life Bank"), as servicer,
Life Investments, as transferor, and Norwest Bank Minnesota, National
Association, as indenture trustee and co-owner trustee. On the Closing Date,
approximately $30,000,000 (as adjusted pursuant to the immediately following
sentence, the "Original Pre-Funded Amount") will be deposited in the name of
the Indenture Trustee in the Pre-Funding Account. To the extent that the
Original Pool Principal Balance is more or less than the amount set forth in
the second preceding sentence, the Original Pre-Funded Amount will be decreased
or increased by a corresponding amount provided that the amount of any such
adjustment shall not exceed $6,250,000. It is intended that additional home
loans satisfying the criteria specified in the Sale and Servicing Agreement
(the "Subsequent Loans") will be purchased by the Trust for inclusion in the
Trust from time to time on or before November 30, 1997 from funds on deposit in
the Pre-Funding Account at the time of execution and delivery of each
subsequent transfer agreement (each, a "Subsequent Transfer Agreement"). Funds
in the Capitalized Interest Account will be applied by the Indenture Trustee
and Co-Owner Trustee to cover shortfalls in interest during the Pre-Funding
Period. Forms of the Indenture and the Sale and Servicing Agreement have been
filed as exhibits to the Registration Statement (as hereinafter defined).
The Notes are more fully described in the Registration Statement which
the Depositor has furnished to the Underwriter. Capitalized terms used but not
defined herein shall have the meanings given to them in the Sale and Servicing
Agreement.
Pursuant to a loan sale agreement, dated as of September 1, 1997 (the
"Loan Sale Agreement") by and between Life Bank, as seller and servicer, and
Life Investments, as purchaser, Life Bank will transfer to Life Investments all
of Life Bank's right, title and interest in and to the unpaid principal
balances of the Initial Loans as of the Cut-Off Date and the collateral
securing each Initial Loan. Pursuant to a loan purchase agreement, dated as of
September 1, 1997 (the "Loan Purchase Agreement" and together with the Loan
Sale Agreement, the "Loan Sale and Purchase Agreements") by and between the
Depositor, as depositor, and Life Investments, as transferor, Life Investments
will transfer to the Depositor all of Life Investments' right, title
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and interest in and to the unpaid principal balances of the Initial Loans as of
the Cut-Off Date and the collateral securing each Initial Loan. Pursuant to the
Sale and Servicing Agreement, the Depositor will transfer to the Trust all such
right, title and interest in and to the unpaid principal balances of the
Initial Loans as of the Cut-Off Date and the collateral securing each Initial
Loan.
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. 333-26051) 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 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; "Preliminary Prospectus" means each prospectus
included in such Registration Statement, or amendments thereof,
including a preliminary prospectus supplement which, as completed, is
proposed to be used in connection with the sale of the Notes and any
prospectus filed with the Commission by the Depositor with the consent
of the Underwriter pursuant to Rule 424(a) of the Rules and
Regulations; and "Prospectus" means the final prospectus dated June 24,
1997, as first supplemented by a prospectus supplement (the "Prospectus
Supplement") relating to the Notes, 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 Preliminary Prospectus or the
Prospectus, as the case may be, and incorporated by reference in such
Preliminary Prospectus or the Prospectus, as the case may be, and any
reference to any
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amendment to the Registration Statement shall be deemed to include any
report of the Depositor filed with the Commission pursuant to Section
13(a) or 15(d) of the Exchange Act after the Effective Time that is
incorporated by reference in the Registration Statement. The Commission
has not issued any order preventing or suspending the use of the
Preliminary Prospectus or 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(d) 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 as of the Closing Date,
does not and will not contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements therein 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 the 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(i)
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
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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 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.
(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 the
Closing 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 this Agreement, the Loan
Purchase Agreement, the Sale and Servicing Agreement and the Trust
Agreement or any Subsequent Transfer Agreement and to cause the Notes
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 this Agreement, the Loan
Purchase Agreement, the Sale and Servicing Agreement, the Trust
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Agreement, the Notes, or any Subsequent Transfer Agreement, (c) which
seek to prevent the issuance of the Notes or the consummation by the
Depositor of any of the transactions contemplated by the Sale and
Servicing Agreement, the Loan Purchase Agreement, the Trust Agreement,
this Agreement or any Subsequent Transfer Agreement, as the case may
be, or (d) which might materially and adversely affect the performance
by the Depositor of its obligations under, or the validity or
enforceability of, the Sale and Servicing Agreement, the Loan Purchase
Agreement, this Agreement, the Trust Agreement, the Notes or any
Subsequent Transfer Agreement.
(g) This Agreement has been, and the Sale and Servicing Agreement, the
Loan Purchase Agreement, the Trust Agreement and each Subsequent
Transfer Agreement, when executed and delivered as contemplated hereby
and thereby, will have been, duly authorized, executed and delivered by
the Depositor, and this Agreement constitutes, and the Sale and
Servicing Agreement, the Loan Purchase Agreement, the Trust Agreement
and each Subsequent Transfer Agreement when executed and delivered as
contemplated herein, will constitute, legal, valid and binding
instruments enforceable against the Depositor in accordance with their
respective terms, subject as to enforceability to (x) applicable
bankruptcy, reorganization, insolvency, moratorium or other similar
laws affecting creditors' rights generally, (y) general principles of
equity (regardless of whether enforcement is sought in a proceeding in
equity or at law), and (z) with respect to rights of indemnity under
this Agreement, limitations of public policy under applicable
securities laws.
(h) The execution, delivery and performance of this Agreement, the Sale
and Servicing Agreement, the Loan Purchase Agreement, the Trust
Agreement and any Subsequent Transfer Agreement by the Depositor and
the consummation of the transactions contemplated hereby and thereby,
and the issuance and delivery of the Notes do not and will not conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which
the Depositor is a party, by which the Depositor is bound or to which
any of the properties or assets of the Depositor or any of its
subsidiaries is subject, which breach or violation would have a
material adverse effect on the business, operations or financial
condition of the Depositor, nor will such actions result in any
violation of the provisions of the 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
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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
are not independent public accountants with respect to the Depositor as
required by the Securities Act and the Rules and Regulations.
(j) As of the Closing Date, the Notes, the Indenture and the Trust
Agreement will conform in all material respects to the respective
descriptions thereof contained in the Prospectus. As of the Closing
Date, the Notes will be duly and validly authorized and, when duly and
validly executed, authenticated and delivered in accordance with the
Indenture, and delivered to you against payment therefor as provided
herein, will be duly and validly issued and outstanding and entitled to
the benefits of the Sale and Servicing Agreement. The Notes will not be
"mortgage related securities," as such term is defined in the singular
in the Exchange Act.
(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 and the sale of the
Notes to the Underwriter, or the consummation by the Depositor of the
other transactions contemplated by this Agreement, the Sale and
Servicing Agreement, the Loan Purchase Agreement, the Trust Agreement
and any Subsequent Transfer Agreement, except such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or blue sky laws in connection with the purchase
and distribution of the Notes 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 Sale and
Servicing Agreement, the Depositor will: (i) be the sole
beneficial owner of the Initial Loans conveyed by the
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Transferor, free and clear of any lien, mortgage, pledge, charge,
encumbrance, adverse claim or other security interest (collectively,
"Liens"); (ii) not have assigned to any Person any of its right or
title in the Initial Loans, in the Sale and Servicing Agreement or in
the Notes being issued pursuant to the Indenture; and (iii) have the
power and authority to sell its interest in the Initial Loans to the
Trust and to sell the Notes to the Underwriter. Upon execution and
delivery of the Sale and Servicing Agreement by the Trust, the Trust
will have acquired beneficial ownership of all of the Depositor's
right, title and interest in and to the Loans. Upon delivery to the
Underwriter of the Notes, the Underwriter will have good title to the
Notes, free and clear of any Liens.
(n) At the time of execution and delivery of any Subsequent Transfer
Agreement, the Depositor will: (i) be the sole beneficial owner of the
Subsequent Loans conveyed by the Transferor, free and clear of any
Liens; (ii) not have assigned to any Person any of its right or title
in the Subsequent Loans, in the Sale and Servicing Agreement or in the
Subsequent Transfer Agreement; and (iii) have the power and authority
to sell the Subsequent Loans to the Trust. Upon execution and delivery
of each Subsequent Transfer Agreement by the Trust, the Trust will have
acquired beneficial ownership of all of the Depositor's right, title
and interest in and to the related Subsequent Loans.
(o) As of the Cut-Off Date, each of the Initial Loans will meet the
eligibility criteria described in the Prospectus and will conform in
all material respects to the descriptions thereof contained in the
Prospectus.
(p) As of any Subsequent Transfer Date, each of the Subsequent Loans
will meet the eligibility criteria described in the Prospectus and will
conform in all material respects to the descriptions thereof contained
in the Prospectus.
(q) Neither the Depositor nor the Trust created by the Trust Agreement
is an "investment company" within the meaning of such term under the
Investment Company Act of 1940 (the "1940 Act") and the rules and
regulations of the Commission thereunder.
(r) At the Closing Date, the Notes, the Sale and Servicing Agreement
and the Indenture will conform in all material respects to the
descriptions thereof contained in the Prospectus.
(s) At the Closing Date, each of the Senior Notes will have been rated
"AAA" by Standard & Poor's Ratings Services, a
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division of The XxXxxx-Xxxx Companies, Inc. ("S&P"), and Fitch
Investors Service, L.P. ("Fitch"), and "Aaa" by Xxxxx'x Investor
Service ("Xxxxx'x"); the Class M-1 Notes "AA" by S&P and Fitch and "A"
by Moody's; the Class M-2 Notes rated "A" by S&P and Fitch and "A2" by
Xxxxx'x; and the Class B Notes rated "BBB+" by S&P and Fitch and "Baa2"
by Moody's.
(t) Any taxes, fees and other governmental charges in connection with
the execution, delivery and issuance of this Agreement, the Sale and
Servicing Agreement, the Loan Purchase Agreement, the Trust Agreement
and the Notes have been paid or will be paid at or prior to the Closing
Date.
(u) At the Closing Date, each of the representations and warranties of
the Depositor set forth in the Sale and Servicing Agreement and the
Loan Purchase Agreement 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 Notes 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 Notes pursuant to this Agreement shall be deemed to have been made
on the basis of the representations and warranties herein contained and shall
be subject to the terms and conditions herein set forth. The Depositor agrees
to instruct the Indenture Trustee to issue the Notes and agrees to sell to the
Underwriter, and the Underwriter agrees (except as provided in Section 10) to
purchase from the Depositor the aggregate principal amount of the Class A-1,
Class A-2, Class A-3, Class A-4, Class M-1, Class M-2 and Class B Notes at the
purchase price or prices set forth in Schedule A. The Underwriter may offer the
Notes to certain dealers at such prices less a concession not in excess of the
respective amounts set forth in Schedule A. The Underwriter may allow and such
dealers may reallow a discount to certain dealers not in excess of the
respective amounts set forth in Schedule A.
SECTION 3. Delivery and Payment. Delivery of and payment for the Notes
to be purchased by the Underwriter shall be made at the offices of Xxxxx
Xxxxxxxxxx, 000 X. Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx, 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 September 4, 1997 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
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day funds payable to the account of the Depositor. Delivery of the Notes shall
be made to the Underwriter for the accounts of the Underwriter against payment
of the purchase price thereof. The Notes 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 Notes will be
made available for examination by the Underwriter no later than 2:00 p.m. New
York 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 proposes to offer the Notes
for sale to the public as set forth in the Prospectus.
SECTION 5. Covenants of the Depositor. The Depositor
agrees as follows:
(a) To prepare 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 Closing 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
Closing Date or any supplement to the Prospectus or any amended
Prospectus has been filed prior to the Closing 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 Notes 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
any Preliminary Prospectus or the Prospectus; (ii) the suspension of
the qualification of the Notes 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 any Preliminary
Prospectus or the Prospectus or suspending any such qualification, the
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Depositor promptly shall use its best efforts to obtain the withdrawal
of such order by the Commission.
(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) each Preliminary Prospectus, 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 Notes, 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 Class A-1, Class A-2, Class A-3, Class A-4, Class M-1,
Class M-2 and Class B Notes which are delivered by the Underwriter to
the Depositor to be filed with the Commission on Additional Materials
8-K (as defined below) at or before the time of filing of the
Prospectus pursuant to Rule 424(b) under the
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Securities Act and (ii) cause any Collateral Term Sheet (as defined
below in this subsection) with respect to the Class A-1, Class A-2,
Class A-3, Class A-4, Class M-1, Class M-2 and Class B Notes which are
delivered by the 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 the 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 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 delivered by the Underwriter to the
Depositor 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") for which the filing of
such material is a condition of the relief granted in such letters, (2)
the terms "Structural Term Sheet" and "Collateral Term Sheet" shall
mean those materials delivered by the Underwriter to the Depositor
within the meaning of the no-action letter dated February 13, 1995
issued by the Division of Corporation Finance of the Commission 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 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
Notes: any (i) Preliminary Prospectus, (ii) amendment to the
Registration Statement or supplement to the Prospectus, or document
incorporated by reference in the Prospectus, or
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(iii) Prospectus pursuant to Rule 424 of the Rules and
Regulations.
(g) To make generally available to holders of the Notes 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
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 Notes 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 Notes; 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 Notes have been so qualified.
(i) Unless the Underwriter shall otherwise have given its written
consent, no notes or pass-through certificates backed by home equity
loans or other similar securities representing interest in or secured
by other mortgage-related assets originated or owned by the Depositor,
Life Bank or the Transferor shall be publicly offered or sold nor shall
the Depositor, Life Bank or the Transferor 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 Notes to the public.
(j) So long as the Notes shall be outstanding the Depositor shall
furnish, or cause to be furnished to the Underwriter as soon as such
statements are furnished to the Depositor; (i) the annual statement as
to compliance delivered by the Servicer to the Depositor pursuant to
Section 7.4 of the Sale and Servicing Agreement; (ii) the annual
statement of a firm of independent public accountants furnished to the
Depositor pursuant to Section 7.5 of the Sale and Servicing Agreement;
and (iii) the monthly statements furnished by the Indenture Trustee
pursuant to Section 6.1 of the Sale and Servicing Agreement.
13
(k) To apply the net proceeds from the sale of the Notes in
the manner set forth in the Prospectus.
SECTION 6. Conditions to the Underwriter's Obligations. The obligations
of the Underwriter to purchase the Notes pursuant to this Agreement are subject
to: (i) the accuracy on and as of the Closing Date of the representations and
warranties on the part of the Depositor herein contained; (ii) the performance
by the Depositor of all of its obligations hereunder; and (iii) the following
conditions as of the Closing 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 Closing Date that the Registration
Statement or the Prospectus or any amendment or supplement thereto
contains an untrue statement of a fact or omits to state a fact which,
in the opinion of 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 this Agreement, the Sale and
Servicing Agreement, the Loan Purchase Agreement, the Trust Agreement,
the Notes, the Registration Statement and the Prospectus, and all other
legal matters relating to this Agreement and the transactions
contemplated hereby shall be satisfactory in all respects to the
Underwriter and its counsel, and the Depositor shall have furnished to
the Underwriter and its counsel all documents and information that they
may reasonably request to enable them to pass upon such matters.
(d) You shall have received from in-house counsel of the Depositor or
an affiliate of the Depositor, a favorable opinion, dated the Closing
Date, in form and substance satisfactory to the Underwriter, to the
effect that:
(i) The Depositor has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware and has all corporate power and authority
necessary to own or hold its properties and to conduct the
business in which it is engaged and to enter into and perform its
obligations
14
under this Agreement, the Loan Purchase Agreement, the
Sale and Servicing Agreement and the Trust Agreement, and
to cause the Notes to be issued.
(ii) The Depositor is not in violation of its certificate of
incorporation or by-laws or to such counsel's knowledge in
default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which the Depositor is a party or by which it
or its properties may be bound, which default might result in any
material adverse changes in the financial condition, earnings,
affairs or business of the Depositor or which might materially
and adversely affect the properties or assets, taken as a whole,
of the Depositor.
(iii) This Agreement, the Sale and Servicing Agreement, the Loan
Purchase Agreement and the Trust Agreement have been duly
authorized, executed and delivered by the Depositor and the
Subsequent Transfer Agreements have been duly authorized, and
when duly executed and delivered by the Depositor and, assuming
the due authorization, execution and delivery of such agreements
by the other parties thereto, such agreements constitute, and in
the case of any Subsequent Transfer Agreement will constitute,
valid and binding obligations, enforceable against the Depositor
in accordance with their respective terms, subject as to
enforceability to (x) bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally, (y) general principles
of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law) and (z) with respect to rights of
indemnity under this Agreement, limitations of public policy
under applicable securities laws.
(iv) The execution, delivery and performance of this Agreement,
the Loan Purchase Agreement, the Sale and Servicing Agreement,
the Trust Agreement and each Subsequent Transfer Agreement by the
Depositor, the consummation of the transactions contemplated
hereby and thereby, and the issuance and delivery of the Notes to
such counsel's knowledge do not and will not conflict with or
result in a breach or violation of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to
which the Depositor is a party or by which the Depositor is bound
or to which any of the property or assets of the Depositor or any
of its subsidiaries is subject, which breach or violation would
have a material adverse effect on the business,
15
operations or financial condition of the Depositor, nor will such
actions result in a violation of the provisions of the
certificate of incorporation or by-laws of the Depositor or to
such counsel's knowledge 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.
(v) The direction by the Depositor to the Owner Trustee or to
Co-Owner Trustee to execute and direct the Indenture Trustee to
authenticate and deliver the Notes have been duly authorized by
the Depositor.
(vi) 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 Notes,
the sale of the Notes to the Underwriter, or the consummation by
the Depositor of the other transactions contemplated by this
Agreement, the Loan Purchase Agreement, the Sale and Servicing
Agreement and the Trust Agreement, except such consents,
approvals, authorizations, registrations or qualifications as may
be required under the Securities Act or state securities or "blue
sky" laws in connection with the purchase and distribution of the
Notes by the Underwriter or as have been previously obtained.
(vii) There are not, to such counsel's knowledge, any 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, results of
operations or financial condition of the Depositor; (b) which
assert the invalidity of the Sale and Servicing Agreement, the
Loan Purchase Agreement, the Trust Agreement or the Notes; (c)
seeking to prevent the issuance of the Notes or the consummation
by the Depositor of any of the transactions contemplated by the
Sale and Servicing Agreement, the Loan Purchase Agreement, the
Trust Agreement or this Agreement, as the case may be; or (d)
which might materially and adversely affect the performance by
the Depositor of its obligations under, or the validity or
enforceability of, the Sale and Servicing Agreement, the Loan
Purchase Agreement, the Trust Agreement, this Agreement or the
Notes.
16
(viii) The statements set forth in the Basic Prospectus under the
captions "Summary of Terms -- Depositor" and "The Depositor"
provide a fair and accurate summary of the matters addressed
therein.
(e) Xxxxx Xxxxxxxxxx shall have furnished to the Underwriter their
written opinion, as special counsel to the Depositor, addressed to the
Underwriter and dated the Closing Date, in form and substance
satisfactory to the Underwriter, to the effect that:
(i) The conditions to the use by the Depositor of a registration
statement on Form S-3 under the Securities Act, as set forth in
the General Instructions to Form S-3, have been satisfied with
respect to the Registration Statement and the Prospectus.
(ii) The Registration Statement and any amendments thereto have
become effective under the Securities Act; to the best of such
counsel's knowledge, no stop order suspending the effectiveness
of the Registration Statement has been issued and not withdrawn
and no proceedings for that purpose have been instituted or
threatened and not terminated; and the Registration Statement,
the Prospectus and each amendment or supplement thereto, as of
their respective effective or issue dates (other than the
financial and statistical information contained therein, as to
which such counsel need express no opinion), complied as to form
in all material respects with the applicable requirements of the
Securities Act and the Rules and Regulations.
(iii) To the best of 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 set forth in the Basic Prospectus under the
captions "Description of the Securities" and "The Agreements" and
in the Prospectus Supplement under the captions "Description of
the Notes" to the extent such statements purport to summarize
certain provisions of the Notes, the Sale and Servicing
Agreement, the Indenture, and the Trust Agreement are fair and
accurate in all material respects.
(v) The statements set forth in the Prospectus under the captions
"ERISA Considerations" and "Certain Material Federal Income Tax
Consequences" and in the Prospectus
17
Supplement under the captions "ERISA Considerations" and "Certain
Federal Income Tax Consequences," to the extent that they
constitute matters of federal law, provide a fair and accurate
summary of such law or conclusions.
(vi) The Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended, and neither the Depositor nor
the Trust is required to be registered under the 1940 Act, as
amended.
(vii) Neither the Depositor nor the Trust is an "investment
company" or under the "control" of an "investment company" as
such terms are defined in the 1940 Act.
(viii) The Notes, when executed, authenticated and delivered in
accordance with the Trust Agreement and the Indenture, will be
validly issued, will be entitled to the benefits of the Indenture
and will conform to the description thereof contained in the
Prospectus.
Such counsel shall also have furnished to the Underwriter a written
statement, addressed to the Underwriter and dated the Closing Date, in
form and substance satisfactory to the Underwriter, to the effect that
no facts have come to the attention of such counsel which lead them to
believe that: (a) the Registration Statement, at the time such
Registration Statement became effective, contained an untrue statement
of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading (except as to financial or statistical data contained in the
Registration Statement); or (b) the Prospectus, as of its date and as
of the Closing Date, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact required to
be stated therein or necessary in order to make the statements therein
not misleading.
(f) The Underwriter shall have received the favorable opinion, dated
the Closing Date, of Xxxxx Xxxxxxxxxx, special counsel to the
Depositor, addressed to the Depositor and satisfactory to Xxxxx'x
Investors Service ("Moody's"), Fitch Investors Service, L.P. ("Fitch")
and the Underwriter, with respect to certain matters relating to the
transfer of the Initial Loans, together with amounts on deposit in the
Pre-Funding Account and the Capitalized Interest Account, from the
Depositor to the Trust, and such counsel shall have consented to the
reliance on such opinion by Moody's, Fitch and the Underwriter as
though such opinion had been addressed to each such party.
18
(g) Xxxxxxx, Xxxxxx & Xxxxxxxx, special counsel to the Transferor and
Life Bank, shall have furnished to the Underwriter their written
opinion, addressed to the Underwriter and the Depositor and dated the
Closing Date, in form and substance satisfactory to the Underwriter, to
the effect that:
(i) The Transferor has been duly incorporated and is validly
existing and in good standing as a corporation under the laws of
the State of Delaware and has duly authorized all actions
contemplated hereby to be taken by it.
(ii) The Transferor has full power and authority to serve in the
capacity of transferor of the Loans and to transfer the Loans to
the Depositor as contemplated in the Loan Purchase Agreement.
(iii) Life Bank has been duly chartered and is validly existing
and in good standing as a federal savings bank under the laws of
the United States and has duly authorized all actions
contemplated hereby to be taken by it.
(iv) Life Bank has full power and authority to transfer the Loans
to the Transferor as contemplated in the Loan Sale Agreement and
to serve in its capacity as servicer of the Loans as contemplated
in the Sale and Servicing Agreement.
(v) The Sale and Servicing Agreement, the Sale Agreement, the
Loan Purchase Agreement and the Trust Agreement have been duly
authorized, executed and delivered by the Transferor or Life
Bank, as applicable, and, assuming the due authorization,
execution and delivery of such agreements by the other parties
thereto, constitute the legal, valid and binding agreements of
the Transferor or Life Bank, as applicable, enforceable against
the Transferor or Life Bank, as applicable, in accordance with
their terms respective, subject as to enforceability to (x)
bankruptcy, insolvency, reorganization, moratorium, receivership
or other similar laws now or hereafter in effect relating to
creditors' rights generally and (y) the qualification that the
remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the
discretion, with respect to such remedies, of the court before
which any proceedings with respect thereto may be brought.
(vi) No consent, approval, authorization, order,
registration or qualification of or with any court or
19
governmental agency or body having jurisdiction over the
Transferor or Life Bank is required for the consummation by the
Transferor or Life Bank, as applicable, of the transactions
contemplated by the Sale and Servicing Agreement, the Loan Sale
Agreement, the Loan Purchase Agreement and the Trust Agreement,
except such consents, approvals, authorizations, registrations
and qualifications as have been obtained.
(vii) Neither (A) the execution, delivery or performance by the
Transferor of the Sale and Servicing Agreement, the Loan Purchase
Agreement or the Trust Agreement and the transactions
contemplated therein including the transfer of the Initial Loans
by the Transferor to the Depositor pursuant to the Loan Purchase
Agreement, nor (B) the execution, delivery or performance by Life
Bank of the Sale and Servicing Agreement or the Loan Sale
Agreement and the transactions contemplated therein, including
the transfer of the Initial Loans by Life Bank to the Transferor
(1) conflict with or result in a breach of, or constitute a
default under, (a) any term or provision of the formation
documents of the Transferor or Life Bank, as applicable; (b) any
term or provision of any material agreement, deed of trust,
mortgage loan agreement, contract, instrument or indenture, or
other agreement to which the Transferor or Life Bank, as
applicable, is a party or is bound or to which any of the
property or assets of the Transferor or Life Bank, as applicable,
or any of its subsidiaries is subject; (c) to the best of such
firm's knowledge without independent investigation any order,
judgment, writ, injunction or decree of any court or governmental
authority having jurisdiction over the Transferor or Life Bank,
as applicable; or (d) any law, rule or regulations applicable to
the Transferor or Life Bank, or (B) to the best of such firm's
knowledge without independent investigation, results in the
creation or imposition of any lien, charge or encumbrance upon
the Trust Estate.
(viii) Each Subsequent Transfer Agreement at the time of its
execution and delivery will be sufficient to convey all of the
Transferor's right, title and interest in the Subsequent Loans to
the Trust and following the consummation of the transaction
contemplated by each Subsequent Transfer Agreement, the transfer
of the Subsequent Loans by the Transferor to the Trust will be a
sale thereof.
(ix) There are, to the best of such counsel's knowledge without
independent investigation, no actions, proceedings or
investigations pending with respect to which the Transferor or
Life Bank, as applicable, has
20
received service of process before, or threatened against the
Transferor or Life Bank, as applicable, by any court,
administrative agency or other tribunal (a) contesting the
validity of the Sale and Servicing Agreement, the Loan Sale
Agreement, the Loan Purchase Agreement, the Trust Agreement or
the Notes, (b) seeking to prevent the consummation of any of the
transactions contemplated by the Sale and Servicing Agreement or
(c) which would materially and adversely affect the performance
by the Transferor or Life Bank, as applicable, of its obligations
under, or the validity or enforceability of, the Sale and
Servicing Agreement, the Loan Sale Agreement, the Loan Purchase
Agreement, or the Trust Agreement.
Such counsel shall also have furnished to the Underwriter a written statement,
addressed to the Underwriter and dated the Closing Date, in form and substance
satisfactory to the Underwriter, to the effect that facts have come to the
attention on such counsel which had thereto believe that the information
contained in the Prospectus Supplement under the headings "SUMMARY--Servicer,"
"--Company", "Life Financial Corp." and "Life Savings Bank, Federal Savings
Bank", as of its date and on the Closing Date, contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading.
(h) The Underwriter shall have received the favorable opinion, dated
the Closing Date, of Xxxxxxx, Xxxxxx & Xxxxxxxx, special counsel to the
Transferor and Life Bank, addressed to the Transferor and satisfactory
to Moody's, Fitch and the Underwriter, with respect to certain matters
relating to (i) the transfer of the Initial Loans from Life Bank to the
Transferor and (ii) the transfer of the Initial Loans, together with
amounts on deposit in the Pre-Funding Account and the Capitalized
Interest Account, from the Transferor to the Depositor, and such
counsel shall have consented to the reliance on such opinion by
Moody's, Fitch and the Underwriter as though such opinion had been
addressed to each such party.
(i) The Underwriter shall have received the favorable opinion of
counsel to the Trust and the Owner Trustee, dated the Closing Date,
addressed to the Underwriter and in form and scope satisfactory to the
Underwriter and counsel to the Underwriter, to the effect that:
(i) The Owner Trustee is a banking corporation, duly incorporated
and validly existing under the laws of the State of Delaware and
has the power and authority to
21
enter into, and to take all action required of it under,
the Trust Agreement and the Indenture.
(ii) Each of the Trust Agreement, the Sale and Servicing
Agreement and the Indenture Agreement has been duly authorized,
executed and delivered by the Trust or the Owner Trustee, as
applicable, and, assuming due authorization, execution and
delivery thereof by the other parties thereto, constitutes a
valid and binding obligation of the Trust or the Owner Trustee,
as the case may be, enforceable against the Trust or the Owner
Trustee, as the case may be, in accordance with their respective
terms, subject, as to enforceability, to limitations of
bankruptcy, insolvency, moratorium, fraudulent conveyance and
other laws relating to or affecting creditors' rights generally
and court decisions with respect thereto, and to general
principles of equity.
(iii) The Notes have been duly authorized and executed by the
Trust, and when duly authenticated pursuant to the Indenture and
delivered to and paid for by the purchasers thereof, will be
legal, valid and binding obligations of the Trust, enforceable
against the Trust, in accordance with their terms, and will be
entitled to the benefits of the Indenture.
(iv) The execution and delivery by the Owner Trustee of the Sale
and Servicing Agreement and the performance by the Owner Trustee
of its terms do not conflict with or result in a violation of (A)
any law or regulation of the United States of America or the
State of Delaware governing the banking or trust powers of the
Trustee or (B) the charter or by-laws of the Trustee.
(v) No approval, authorization, or other action by, or filing
with, any governmental authority of the United States of America
or the State of Delaware having jurisdiction over the banking or
trust powers of the Trustee is required in connection with the
execution and delivery by the Owner Trustee of the Sale and
Servicing Agreement, or the performance by the Owner Trustee of
the transactions contemplated by the Sale and Servicing
Agreement.
(j) The Underwriter shall have received the favorable opinion of
counsel to the Indenture Trustee and Co-Owner Trustee, dated the
Closing Date, addressed to the Underwriter and in form and scope
satisfactory to the Underwriter and counsel to the Underwriter, to the
effect that:
22
(i) The Indenture Trustee and Co-Owner Trustee is a national
banking association duly organized, validly existing and in good
standing under the laws of the United States.
(ii) The Indenture Trustee is duly eligible and qualified to act
as Indenture Trustee under the Indenture and the applicable
provisions of the Trust Indenture Act of 1934, as amended.
(iii) The Co-Owner Trustee is duly eligible and qualified to act
as Co-Owner Trustee under the Trust Agreement.
(iv) Each of the Trust Agreement, the Sale and Servicing
Agreement and the Indenture has been authorized, executed and
delivered by the Indenture Trustee or the Co-Owner Trustee, as
applicable, and assuming the due authorization, execution and
delivery thereof by the other parties thereto, constitutes a
legal, valid and binding agreement of the Indenture Trustee or
Co-Owner Trustee, as applicable, enforceable against the
Indenture Trustee or Co-Owner Trustee, as applicable, in
accordance with their respective terms.
(v) The Notes have been duly and validly authenticated by the
Indenture Trustee and delivered upon the order of the Trust.
(vi) Neither the execution and authentication of the Notes by the
Indenture Trustee nor the execution, delivery and performance of
the Indenture and the Sale and Servicing Agreement by the
Indenture Trustee or Co-Owner Trustee, as applicable, conflict
with or result in a violation of (A) any law or regulation of the
United States of America giving the banking or trust powers of
the Indenture Trustee and Co-Owner Trustee, or (B) the articles
of association of the Indenture and Co-Owner Trustee.
(vii) No approval, authorization or other action by, or filing
with, any governmental authority of the United States of America
having jurisdiction over the banking or trust powers of the
Indenture Trustee and Co-Owner Trustee is required in connection
with the authentication and delivery of the Notes by the
Indenture Trustee and the execution and delivery by the Indenture
Trustee or Co-Owner Trustee, as applicable, of the Indenture and
the Sale and Servicing Agreement or the performance by the
Indenture Trustee or Owner Trustee, as applicable, of the
transactions contemplated by the Indenture or the Sale and
Servicing Agreement.
23
(k) The Underwriter shall have received the favorable opinion or
opinions, dated the date of the Closing Date, of counsel for the
Underwriter, with respect to the enforceability of this Agreement and
such other related matters as the Underwriter may reasonably require.
(l) Each of the Depositor and the Transferor shall have furnished to
the Underwriter a certificate, dated the Closing Date and signed by the
Chairman of the Board, the President or a Vice President of the
Depositor and the Transferor, respectively, stating as it relates to
each such entity:
(i) The representations and warranties made by the Depositor and
the Transferor, as applicable, in this Agreement, the Sale and
Servicing Agreement (excluding the representations and warranties
relating to the Home Loans) and the Loan Purchase Agreement, as
applicable, are true and correct as of the Closing Date; and each
of the Depositor and the Transferor has complied with all
agreements contained herein which are to have been complied with
on or prior to the Closing Date.
(ii) Nothing has come to his or her attention that would lead
such officer to believe that the Registration Statement or the
Prospectus includes any untrue statement of a material fact or
omits to state a material fact necessary to make the statements
therein not misleading.
(iii) There has been no amendment or other document filed
affecting the Certificate of Incorporation or by-laws of the
Depositor since ____________ or the Certificate of Incorporation
or by-laws of the Transferor since September 2, 1997 and no such
amendment has been authorized. No event has occurred since August
29, 1997 which has affected the good standing of such entities
under the laws of the State of Delaware.
(iv) 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 such entities from June 30, 1997.
In addition to the foregoing, the certificate of the Transferor shall
state that the representations and warranties set forth in Sections
1(d), (e), (f), (g), (h), (l), (m), (p) and (q) hereof are made by the
Transferor (modified where applicable to refer to the Transferor)
instead of the Depositor and are true as to the Transferor as though
such representations and warranties were fully set forth in such
certificate.
24
(m) The Owner Trustee and the Indenture Trustee and Co-Owner Trustee,
as applicable, shall have furnished to the Underwriter a certificate of
the Trustee, signed by one or more duly authorized officers of such
entities, dated the Closing Date, as to the due authorization,
execution and delivery of the Sale and Servicing Agreement by the Owner
Trustee and the Indenture Trustee and Co-Owner Trustee and the
Indenture by the Indenture Trustee and the acceptance by the Owner
Trustee and Co-Owner Trustee and by the Indenture Trustee, as
applicable, of the respective trusts created thereby and the due
authentication and delivery of the Notes by the Trustee thereunder and
such other matters as the Underwriter shall reasonably request.
(n) 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.
(o) Prior to the Closing Date, Xxxxx Xxxxxxxxxx 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 Notes 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 Notes as
herein contemplated shall be satisfactory in form and substance to the
Underwriter and counsel for the Underwriter.
(p) Subsequent to the execution and delivery of this Agreement none of
the following shall have occurred: (i) trading in securities generally
on the New York Stock Exchange, the American Stock Exchange or the
over-the-counter market shall have been suspended or minimum prices
shall have been established on either of such exchanges or such market
by the Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction; (ii) a banking moratorium
shall have been declared by federal or state authorities; (iii) the
United States shall have become engaged in hostilities, there shall
have been an escalation of hostilities involving the United States or
there shall have been a declaration of a national emergency or war by
the United States; or (iv) there shall have occurred such a material
adverse change in general economic, political or financial conditions
(or the effect of international conditions on the financial markets of
the United States shall be such) as to make it in each of the instances
set forth in clauses (i), (ii), (iii) and (iv) herein, in the
reasonable judgment of the Underwriter,
25
impractical or inadvisable to proceed with the public offering or
delivery of the Notes on the terms and in the manner contemplated in
the Prospectus.
(q) The Underwriter shall have received from Deloitte & Touche LLP, 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, 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 Transferor
and Life Bank excluding any questions of legal interpretation. The
Underwriter shall have received from Deloitte & Touche, LLP, a letter
dated the Closing 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 this clause (q).
If any condition specified in this Section 6 shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the 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 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. The Depositor agrees to pay: (a) the
costs incident to the authorization, issuance, sale and delivery of the Notes
and any taxes payable in connection therewith; (b) the costs incident to the
preparation, printing and filing under the Securities Act of the Registration
Statement and any amendments and exhibits thereto; (c) the costs of
distributing the Registration Statement as originally filed and each amendment
thereto and any post-effective amendments thereof (including, in each case,
exhibits), the Preliminary Prospectus, the Prospectus and any amendment or
supplement to the Prospectus or any document incorporated by reference therein,
all as provided in this Agreement; (d) the costs of reproducing and
distributing this Agreement; (e) the fees and expenses of qualifying the Notes
under the securities laws of the several jurisdictions as provided in Section
5(h) hereof and of preparing, printing and distributing a Blue Sky Memorandum
(including related fees and expenses of counsel to the Underwriter); (f) any
fees charged by securities rating services for rating the Notes; and (g) all
other costs and expenses
26
incident to the performance of the obligations of the Depositor (including
costs and expenses of your counsel); provided that, except as provided in this
Section 7, the Underwriter shall pay their own costs and expenses, including
the costs and expenses of their counsel, any transfer taxes on the Notes which
they may sell and the expenses of advertising any offering of the Notes made by
the Underwriter, and the Underwriter shall pay the cost of any accountants'
comfort letters relating to any Computational Materials, Structural Term Sheets
or Collateral Term Sheets (each as defined in Section 5(e) hereof).
If this Agreement is terminated by the Underwriter in accordance with
the provisions of Section 6 or Section 10, the Depositor shall cause the
Underwriter to be reimbursed for all reasonable out-of-pocket expenses,
including fees and disbursements of Brown & Wood LLP, counsel for the
Underwriter.
SECTION 8. Indemnification and Contribution. (a) The Depositor agrees
to indemnify and hold harmless the Underwriter and each person, if any, who
controls the Underwriter within the meaning of Section 15 of the Securities 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
Notes), to which the Underwriter or any such controlling person may become
subject, under the Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, or any amendment thereof or supplement thereto, (ii)
the omission or alleged omission to state therein 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 therein 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 and each such controlling person promptly upon demand
for any legal or other expenses reasonably incurred by the Underwriter or such
controlling person in connection with investigating or defending or preparing
to defend against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Depositor shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made in the
Prospectus, or any amendment thereof or supplement thereto, or the Registration
Statement, or any amendment thereof or supplement thereto, in reliance upon and
in conformity with written information furnished to the Depositor by
27
or on behalf of the Underwriter specifically for inclusion therein. The
foregoing indemnity agreement is in addition to any liability which the
Depositor may otherwise have to the Underwriter or any controlling person of
the Underwriter. 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(i) hereof.
(b) The Underwriter agrees to indemnify and hold harmless the
Depositor, each of its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Depositor
within the meaning of Section 15 of the Securities Act against any and all
loss, claim, damage or liability, or any action in respect thereof, to which
the Depositor or any such director, officer or controlling person may become
subject, under the Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, or any amendment thereof or supplement thereto, (ii)
the omission or alleged omission to state therein 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 therein 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 any such director, officer or controlling person for any legal or
other expenses reasonably incurred by the Depositor or any director, officer or
controlling person in connection with investigating or defending or preparing
to defend against any such loss, claim, damage, liability or action as such
expenses are incurred. The foregoing indemnity agreement is in addition to any
liability which the Underwriter may otherwise have to the Depositor or any such
director, officer or controlling person. 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(i) hereof.
(c) 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
28
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 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
29
parties under this Section 8 consist of the Depositor or any of the Depositor's
directors, officers or controlling persons.
Each indemnified party, as a condition of the indemnity agreements
contained in Section 8(a) and (b), shall use its best efforts to cooperate with
the indemnifying party in the defense of any such action or claim. No
indemnifying party shall be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a final
judgment for the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss or
liability by reason of such settlement or judgment.
Notwithstanding the foregoing paragraph, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 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.
(d) The Underwriter agrees to provide the Depositor 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.
(e) The Underwriter agrees, assuming all Transferor-Provided
Information (as defined in Section 8(g)) is accurate and complete in all
material respects, to indemnify and hold harmless the Depositor, each of the
Depositor's officers and directors and each person who controls the Depositor
within the meaning of Section 15 of the Securities Act against any and all
losses, claims, damages or liabilities, joint or several, to which they may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement of a material fact contained in the
Computational Materials, 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,
30
liability or action as such expenses are incurred. The obligations of the
Underwriter under this Section 8(e) shall be in addition to any liability which
the Underwriter may otherwise have.
The procedures set forth in Section 8(c) shall be equally applicable to
this Section 8(e).
(f) 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 Section 8(a), (b) or (e) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Depositor on the one hand and the Underwriter on the other from
the offering of the related Notes 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(c), in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Depositor on the one hand and the
Underwriter on the other with respect to the statements or omissions which
resulted in such loss, claim, damage or liability, or action in respect
thereof, as well as any other relevant equitable considerations.
The relative benefits of the Underwriter and the Depositor shall be
deemed to be in such proportion as the total net proceeds from the offering
(before deducting expenses) received by the Depositor bear to the total
underwriting discounts and commissions received by the related Underwriter from
time to time in negotiated sales of the related Notes.
The relative fault of the Underwriter and the Depositor shall be
determined by reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Depositor 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 and the Underwriter agree that it would not be just and
equitable if contributions pursuant to this Section 8(f) were to be determined
by pro rata allocation (even if the Underwriter were treated as one entity for
such purposes) or by any other method of allocation which does not take into
account the equitable considerations referred to herein. The amount paid
31
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(f)
shall be deemed to include, for purposes of this Section 8(f), any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim.
For purposes of this Section 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 Notes over (y) the amount paid
by the Underwriter to the Depositor for the Notes by the Underwriter hereunder.
No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(g) For purposes of this Section 8 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(d) 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 Transferor-Provided
Information.
"Transferor-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 Transferor concerning the assets comprising
the Trust.
(h) The Transferor agrees to indemnify each indemnified party referred
to in Section 8(a) hereof with respect to Transferor-Provided Information to
the same extent as the indemnity granted under such section. The procedures set
forth in Section 8(c) shall be equally applicable to this Section 8(h).
(i) The Underwriter confirms that the information set forth in the
fourth and sixth paragraphs of page i of the Prospectus Supplement, the
information regarding the Underwriter set forth under the caption "Method of
Distribution" in the Prospectus Supplement and the Computational Materials,
Structural Term Sheets and Collateral Term Sheets (excluding in each case
Transferor-Provided Information) are correct, and the parties hereto
acknowledge that such information constitutes the only information furnished in
writing by or on behalf of the
32
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
Agreement or contained in certificates of officers of the Depositor submitted
pursuant hereto shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of the Underwriter or controlling
persons thereof, or by or on behalf of the Depositor and shall survive delivery
of any Notes to the Underwriter.
SECTION 10. Termination of Agreement. The Underwriter may terminate
this Agreement immediately upon notice to the Depositor, at any time at or
prior to the Closing Date if any of the events or conditions described in
Section 6(r) of this 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 15 shall remain in effect.
SECTION 11. Notices. All statements, requests, notices and
agreements hereunder shall be in writing, and:
A. if to the Underwriter, shall be delivered or sent by
mail, telex or facsimile transmission to Bear, Xxxxxxx & Co.
Inc., 000 Xxxx 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 care of Bear Xxxxxxx
Asset Backed Securities, Inc., 000 Xxxx Xxxxxx, 0xx Xxxxx,
New York, New York 10167, Attention: Chief Counsel (Fax:
000-000-0000);
SECTION 12. Persons Entitled to the Benefit of this Agreement. This
Agreement shall inure to the benefit of and be binding upon the Underwriter and
the Depositor and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
the representations, warranties, indemnities and agreements contained in this
Agreement shall also be deemed to be for the benefit of the person or persons,
if any, who control the Underwriter within the meaning of Section 15 of the
Securities Act, and for the benefit of directors of the Depositor, officers of
the Depositor who have signed the Registration Statement and any person
controlling the Depositor within the meaning of Section 15 of the Securities
Act. Nothing in this Agreement is intended or shall be construed to give any
person, other than the persons referred to in this Section 12, any legal or
equitable
33
right, remedy or claim under or in respect of this Agreement or any provision
contained herein.
SECTION 13. Survival. The respective indemnities, representations,
warranties and agreements of the Depositor and the Underwriter contained in
this Agreement, or made by or on behalf of them, respectively, pursuant to the
shall survive the delivery of and payment for the Notes 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 14. Definition of the Term "Business Day". For purposes of this
Agreement, "Business Day" means any day on which the New York Stock Exchange is
open for trading.
SECTION 15. Governing Law; Submission to Jurisdiction. This Agreement
shall be governed by and construed in accordance with the laws of the State of
New York without giving effect to the conflict of law rules thereof.
The parties hereto hereby submit to the jurisdiction of the United
States District Court for the Southern District of New York and any court in
the State of New York located in the City and County of New York, and appellate
court from any thereof, in any action, suit or proceeding brought against it or
in connection with this Agreement or any of the related documents or the
transactions contemplated hereunder or for recognition or enforcement of any
judgment, and the parties hereto hereby agree that all claims in respect of any
such action or proceeding may be heard or determined in New York State court
or, to the extent permitted by law, in such federal court.
SECTION 16. Counterparts. This Agreement may be executed in
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
34
SECTION 17. Headings. The headings herein are inserted for
convenience of reference only and are not intended to be part of,
or to affect the meaning or interpretation of, this Agreement.
If the foregoing correctly sets forth the agreement between the
Depositor 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: /s/ Xxxxxxxx Xxxxxxxxx
-----------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: Vice President
CONFIRMED AND ACCEPTED, as
of the date first above written:
BEAR, XXXXXXX & CO. INC.
Acting on its own behalf and
the Underwriter referred to in
the foregoing Agreement
By: /s/ Xxxxxxxx Xxxxxxxxx
------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: Vice President
35
SCHEDULE A
Home Loan Asset Backed Notes, 1997-2
Class A-1 6.71% Loan Asset Backed Notes
Principal Price to Public Underwriting Discount
--------- --------------- ---------------------
$29,390,000 99.99519% 0.2000%
Class A-2 6.74% Loan Asset Backed Notes
Principal Purchase Price Underwriting Discount
--------- --------------- ---------------------
$32,110,000 99.99242% 0.3000%
Class A-3 6.96% Loan Asset Backed
Principal Purchase Price Underwriting Discount
--------- --------------- ---------------------
$11,710,000 99.99162% 0.3500%
Class A-4 7.45% Loan Asset Backed Notes
Principal Purchase Price Underwriting Agreement
--------- --------------- ---------------------
$16,510,000 99.96272% 0.4500%
Class M-1 7.58% Loan Asset Backed Notes
Principal Purchase Price Underwriting Agreement
--------- --------------- ---------------------
$13,610,000 99.95129% 0.5500%
Class M-2 7.73% Loan Asset Backed Notes
Principal Purchase Price Underwriting Agreement
--------- --------------- ---------------------
$11,140,000 99.96949% 0.6500%
Class B 7.98% Loan Asset Backed Notes
Principal Purchase Price
--------- ---------------
$ 9,280,000 99.99991% 0.8250%
Selling Reallowance
Class Concession Discount
----- ---------- --------
A-1 0.1000% 0.0700%
A-2 0.1500% 0.1250%
A-3 0.1750% 0.1250%
A-4 0.2250% 0.1250%
M-1 0.2750% 0.2000%
M-2 0.3250% 0.2500%
B 0.4125% 0.3000%
