ACCREDITED HOME LENDERS, INC.
AND
XXXXXX BROTHERS INC.
UNDERWRITING AGREEMENT
FOR
ACCREDITED MORTGAGE LOAN TRUST 2002-2
MORTGAGE-BACKED NOTES
4.48% CLASS A-1 NOTES
CLASS A-2 VARIABLE RATE NOTES
CLASS A-3 VARIABLE RATE NOTES
November 20, 2002
November 20, 2002
Accredited Home Lenders, Inc.
00000 Xxxxxx xx Xxxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Accredited Home Lenders, Inc. (the "Sponsor") has entered into a Trust
Agreement dated as of November 1, 2002 (the "Trust Agreement") with U.S. Bank
Trust, National Association (the "Owner Trustee") creating Accredited Mortgage
Loan Trust 2002-2 (the "Trust"), a statutory trust established under the laws of
the State of Delaware. The Trust has been established for the purpose of issuing
Asset Backed Notes, Class A-1 (the "Class A-1 Notes"), Class A-2 (the "Class A-2
Notes") and Class A-3 (the "Class A-3 Notes," and together with the Class A-1
Notes and Class A-2 Notes, the "Notes") and certain ownership interests (the
"Ownership Interests" and, together with the Notes, the "Securities").
Only the Notes are being purchased by Xxxxxx Brothers Inc. (the
"Underwriter") in the amount set forth on Schedule A hereto.
Each class of Notes will be secured by the assets of a Sub-Trust of the
Trust consisting of a pool of closed-end mortgage loans (the "Mortgage Loans")
conveyed to the Trust by the Sponsor pursuant to a sale and servicing agreement
dated as of November 1, 2002 (the "Sale and Servicing Agreement") among the
Trust, the Sponsor, as Sponsor and in its capacity as master servicer (the
"Master Servicer"), Accredited Home Capital, Inc. as seller (the "Seller") and
Countrywide Home Loans Servicing LP, in its capacity as backup servicer (the
"Backup Servicer").
The Notes will be issued pursuant to an indenture to be dated as of
November 1, 2002 (the "Indenture") between the Trust, as issuer and Deutsche
Bank National Trust Company, as indenture trustee (the "Indenture Trustee"). The
Ownership Interest will evidence fractional undivided interests in the property
held in the Trust. The aggregate principal balance of the Notes will be equal to
$541,898,000 which represents approximately 100% of the outstanding principal
balances of the Mortgage Loans as of the close of business on October 31, 2002
(the "Cut-Off Date") after giving effect to scheduled payments due on November
1, 2002.
The Notes will have the benefit of a note guaranty insurance policy (the
"Policy") issued by Ambac Assurance Corporation (the "Note Insurer") pursuant to
an insurance and indemnity agreement (the "Insurance and Indemnity Agreement")
to be dated as of November 1, 2002 among the Sponsor, the Seller, the Master
Servicer, the Indenture Trustee and the Note Insurer.
All capitalized terms used but not otherwise defined herein have the
respective meanings set forth in the form Sale and Servicing Agreement,
heretofore delivered to the Underwriter.
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1. Representations and Warranties of the Sponsor. The Sponsor represents
and warrants to, and covenants with, the Underwriter that:
A. The Sponsor has filed with the Securities and Exchange Commission (the
"Commission"), a registration statement (No. 333-100619) on Form S-3 for the
registration under the Securities Act of 1933, as amended (the "Act"), of Asset
Backed Notes and Certificates (issuable in series), which registration
statement, as amended at the date hereof, has become effective. Such
registration statement, as amended to the date of this Agreement, meets the
requirements set forth in Rule 415(a)(1)(vii) under the Act and complies in all
other material respects with such Rule. The Sponsor proposes to file with the
Commission pursuant to Rule 424(b)(5) under the Act, a supplement dated November
20, 2002 to the prospectus dated November 8, 2002 relating to the Notes and the
method of distribution thereof and has previously advised the Underwriter of all
further information (financial and other) with respect to the Notes to be set
forth therein. Such registration statement, including the exhibits thereto, as
amended at the date hereof, is hereinafter called the "Registration Statement";
such prospectus dated November 8, 2002, in the form in which it will be filed
with the Commission pursuant to Rule 424(b)(5) under the Act is hereinafter
called the "Basic Prospectus"; such supplement dated November 20, 2002 to the
Basic Prospectus, in the form in which it will be filed with the Commission
pursuant to Rule 424(b)(5) of the Act, is hereinafter called the "Prospectus
Supplement"; and the Basic Prospectus and the Prospectus Supplement together are
hereinafter called the "Prospectus." There are no contracts or documents of the
Sponsor which are required to be filed as exhibits to the Registration Statement
pursuant to the 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. The conditions for use by the Sponsor of the
Registration Statement on Form S-3 under the Act have been satisfied. The
Sponsor will file with the Commission (i) promptly after receipt from the
Underwriter of any Derived Information (as defined herein) a Form 8-K
incorporating such Derived Information and (ii) within fifteen days of the
issuance of the Notes a report on Form 8-K setting forth specific information
concerning the related Mortgage Loans (the "8-K").
B. As of the date hereof, when the Registration Statement became
effective, when the Prospectus Supplement is first filed pursuant to Rule
424(b)(5) under the Act and at the Closing Date, (i) the Registration Statement,
as amended as of any such time, and the Prospectus, as amended or supplemented
as of any such time, will comply in all material respects with the applicable
requirements of the Act and the rules and regulations thereunder and (ii) the
Registration Statement, as amended as of any such time, did not and will not
contain any untrue statement of a material fact and did not and will not omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading and the Prospectus, as amended or supplemented
as of any such time, did not and will not contain an untrue statement of a
material fact and did not and will not omit to state a material fact necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading; provided, however, that the Sponsor makes
no representations or warranties as to the information contained in or omitted
from the Prospectus Supplement or any amendment thereof or supplement thereto in
reliance upon and in conformity with the information furnished in writing to the
Sponsor by or on behalf of the Underwriter specifically for use in connection
with the preparation of the Prospectus Supplement.
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C. The Sponsor is duly organized, validly existing and in good standing
under the laws of the State of California, has full power and authority
(corporate and other) to own its properties and conduct its business as now
conducted by it, and as described in the Prospectus, and is duly qualified to do
business in each jurisdiction in which it owns or leases real property (to the
extent such qualification is required by applicable law) or in which the conduct
of its business requires such qualification except where the failure to be so
qualified does not involve a material risk to, or a material adverse effect on,
the business, properties, financial position, operations or results of
operations of the Sponsor.
D. The Seller is duly organized, validly existing and in good standing
under the laws of the State of Delaware, has full power and authority (corporate
and other) to own its properties and conduct its business as now conducted by
it, and as described in the Prospectus, and is duly qualified to do business in
each jurisdiction in which it owns or leases real property (to the extent such
qualification is required by applicable law) or in which the conduct of its
business requires such qualification except where the failure to be so qualified
does not involve a material risk to, or a material adverse effect on, the
business, properties, financial position, operations or results of operations of
the Sponsor.
E. There are no actions, proceedings or investigations pending, or, to the
knowledge of the Sponsor, threatened, before any court, governmental agency or
body or other tribunal (i) asserting the invalidity of this Agreement, the
Notes, the Insurance and Indemnity Agreement, the Indemnification Agreement, the
Trust Agreement, the Indenture or the Sale and Servicing Agreement, (ii) seeking
to prevent the issuance of the Notes or the consummation of any of the
transactions contemplated by this Agreement, the Trust Agreement, the Indenture
or the Sale and Servicing Agreement, (iii) which may, individually or in the
aggregate, materially and adversely affect the performance by the Sponsor of its
obligations under, or the validity or enforceability of, this Agreement, the
Notes, the Trust Agreement or the Sale and Servicing Agreement and the Seller of
its obligations under the Sale and Servicing Agreement and the Insurance and
Indemnity Agreement, or (iv) which may affect adversely the federal income tax
attributes of the Notes as described in the Prospectus.
F. The execution and delivery by the Sponsor of this Agreement, the
Insurance and Indemnity Agreement, the Indemnification Agreement, the Trust
Agreement and the Sale and Servicing Agreement, the issuance of the Securities
and the consummation of the transactions contemplated by this Agreement, the
Insurance and Indemnity Agreement, the Indemnification Agreement, the Trust
Agreement, and the Sale and Servicing Agreement are within the corporate power
of the Sponsor and have been, or will be, prior to the Closing Date duly
authorized by all necessary corporate action on the part of the Sponsor and the
execution and delivery of such instruments, the consummation of the transactions
therein contemplated and compliance with the provisions thereof will not result
in a breach or violation of any of the terms and provisions of, or constitute a
default under, any statute or any agreement or instrument to which the Sponsor
or any of its affiliates is a party or by which it or any of them is bound or to
which any of the property of the Sponsor or any of its affiliates is subject,
the Sponsor's charter or bylaws, or any order, rule or regulation of any court,
governmental agency or body or other tribunal having jurisdiction over the
Sponsor, any of its affiliates or any of its or their properties; and no
consent, approval, authorization or order of, or filing with, any court or
governmental agency or body or other tribunal is required for the consummation
of the transactions contemplated by this
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Agreement or the Prospectus in connection with the issuance and sale of the
Securities by the Sponsor except pursuant to the Act. Neither the Sponsor nor
any of its affiliates is a party to, bound by or in breach or violation of any
indenture or other agreement or instrument, or subject to or in violation of any
statute, order, rule or regulation of any court, governmental agency or body or
other tribunal having jurisdiction over the Sponsor or any of its affiliates,
which materially and adversely affects, or may in the future materially and
adversely affect, (i) the ability of the Sponsor to perform its obligations
under the Trust Agreement, the Sale and Servicing Agreement, this Agreement and
the Insurance and Indemnity Agreement or (ii) the business, operations, results
of operations, financial position, income, properties or assets of the Sponsor,
taken as a whole.
G. The execution and delivery by the Seller of the Sale and Servicing
Agreement and the Insurance and Indemnity Agreement and the transfer and
delivery of the Mortgage Loans to the Trust by the Seller are within the
corporate power of the Seller and have been, or will be, prior to the Closing
Date duly authorized by all necessary corporate action on the part of the Seller
and the execution and delivery of such instruments, the consummation of the
transactions therein contemplated and compliance with the provisions thereof
will not result in a breach or violation of any of the terms and provisions of,
or constitute a default under, any statute or any agreement or instrument to
which the Seller or any of its affiliates is a party or by which it or any of
them is bound or to which any of the property of the Seller or any of its
affiliates is subject, the Seller's charter or bylaws, or any order, rule or
regulation of any court, governmental agency or body or other tribunal having
jurisdiction over the Seller, any of its affiliates or any of its or their
properties; and no consent, approval, authorization or order of, or filing with,
any court or governmental agency or body or other tribunal is required for the
consummation of the transactions contemplated by this Agreement or the
Prospectus in connection with the issuance and sale of the Securities by the
Seller except pursuant to the Act. Neither the Seller nor any of its affiliates
is a party to, bound by or in breach or violation of any indenture or other
agreement or instrument, or subject to or in violation of any statute, order,
rule or regulation of any court, governmental agency or body or other tribunal
having jurisdiction over the Seller or any of its affiliates, which materially
and adversely affects, or may in the future materially and adversely affect, (i)
the ability of the Seller to perform its obligations under the Sale and
Servicing Agreement and the Insurance and Indemnity Agreement or (ii) the
business, operations, results of operations, financial position, income,
properties or assets of the Seller, taken as a whole.
H. This Agreement has been duly executed and delivered by the Sponsor, and
on or prior to the Closing Date, the Trust Agreement, the Sale and Servicing
Agreement, the Indemnification Agreement and the Insurance and Indemnity
Agreement will be duly executed and delivered by the Sponsor, and each
constitutes and/or will constitute, as applicable, the legal, valid and binding
obligation of the Sponsor enforceable in accordance with their respective terms,
except as enforceability may be limited by (i) bankruptcy, insolvency,
liquidation, receivership, moratorium, reorganization or other similar laws
affecting the enforcement of the rights of creditors and (ii) general principles
of equity, whether enforcement is sought in a proceeding at law or in equity.
I. On or prior to the Closing Date, the Sale and Servicing Agreement and
the Insurance and Indemnity Agreement will be duly executed and delivered by the
Seller, and each will constitute the legal, valid and binding obligation of the
Seller enforceable in accordance
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with its terms, except as enforceability may be limited by (i) bankruptcy,
insolvency, liquidation, receivership, moratorium, reorganization or other
similar laws affecting the enforcement of the rights of creditors and (ii)
general principles of equity, whether enforcement is sought in a proceeding at
law or in equity.
J. The Notes will conform in all material respects to the description
thereof to be contained in the Prospectus and will be duly and validly
authorized and, when duly and validly executed, authenticated, issued and
delivered in accordance with the Indenture and sold to the Underwriter as
provided herein, will be validly issued and outstanding and entitled to the
benefits of the Indenture.
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 Securities and the sale of the Notes
to the Underwriter, or for the consummation by the Sponsor, of the other
transactions contemplated by this Agreement, the Trust Agreement, the Indenture,
the Sale and Servicing Agreement, the Insurance and Indemnity Agreement and the
Indemnification Agreement or by the Seller of the other transactions
contemplated by the Sale and Servicing Agreement, other than those that have
been obtained.
L. On the Closing Date, the Mortgage Loans will conform in all material
respects to the description thereof contained in the Prospectus and the
representations and warranties contained in this Agreement will be true and
correct in all material respects. The representations and warranties set out in
the Sale and Servicing Agreement are hereby made to the Underwriter as though
set out herein, and at the dates specified in the Sale and Servicing Agreement
such representations and warranties were true and correct in all material
respects.
M. On the Closing Date, and with respect to the Subsequent Mortgage Loans,
on each Subsequent Transfer Date, (x) the Seller will have good title to the
Mortgage Loans free of any liens, (y) the Owner Trustee on behalf of the Trust
will have acquired ownership of the Seller's right, title and interest in the
Mortgage Loans and (z) the Underwriter will have good title to the Notes free of
any liens.
N. The Sponsor possesses all material licenses, certificates, permits or
other authorizations issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct the business now operated by
it and as described in the Prospectus and there are no proceedings, pending or,
to the best knowledge of the Sponsor, threatened, relating to the revocation or
modification of any such license, certificate, permit or other authorization
which singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would materially and adversely affect the business,
operations, results of operations, financial position, income, property or
assets of the Sponsor taken as a whole.
O. The Seller possesses all material licenses, certificates, permits or
other authorizations issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct the business now operated by
it and as described in the Prospectus Supplement and there are no proceedings,
pending or, to the best knowledge of the Seller, threatened, relating to the
revocation or modification of any such license, certificate, permit or other
authorization which singly or in the aggregate, if the subject of an unfavorable
decision,
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ruling or finding, would materially and adversely affect the business,
operations, results of operations, financial position, income, property or
assets of the Seller taken as a whole.
P. Any taxes, fees and other governmental charges in connection with the
execution and delivery of this Agreement, the Insurance and Indemnity Agreement,
the Trust Agreement, the Indemnification Agreement and the Sale and Servicing
Agreement or the execution and issuance of the Securities have been or will be
paid on or prior to the Closing Date.
Q. There has not been 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 Sponsor or its
subsidiaries, taken as a whole, from December 31, 2001, to the date hereof.
R. There has not been 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 or its
subsidiaries, taken as a whole, from December 31, 2001, to the date hereof.
S. This Agreement, the Trust Agreement, the Indenture and the Sale and
Servicing Agreement will conform in all material respects to the descriptions
thereof contained in the Prospectus.
T. The Sponsor is not aware of (i) any request by the Commission for any
further amendment of the Registration Statement or the Prospectus or for any
additional information, (ii) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose or (iii) any notification with
respect to the suspension of the qualification of the Notes for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose.
U. Each assignment of Mortgages required to be prepared pursuant to the
Sale and Servicing Agreement is based on forms recently utilized by the Seller
with respect to mortgaged properties located in the appropriate jurisdiction and
used in the regular course of the Seller's business. Upon execution each such
assignment will be in recordable form and will be sufficient to effect the
assignment of the Mortgage to which it relates as provided in the Sale and
Servicing Agreement.
V. The Sponsor is eligible to use the Registration Statement.
W. Neither the Sponsor, the Seller 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.
X. On the Closing Date, the Notes shall have been rated in the highest
rating category by at least two nationally recognized rating agencies.
Y. The Sponsor is not in violation of its articles of incorporation or
by-laws or in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other
6
instrument to which the Sponsor 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 Sponsor or which might
materially and adversely affect the properties or assets, taken as a whole, of
the Sponsor.
Z. The Seller is not in violation of its articles of incorporation or
by-laws or in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to which
the Seller is a party or by which it or its properties may be bound, which
default might result in any material adverse changes in the financial condition,
earnings, affairs or business of the Seller or which might materially and
adversely affect the properties or assets, taken as a whole, of the Seller.
AA. To the best knowledge of the Sponsor, Deloitte & Touche LLP are
independent public accountants with respect to the Sponsor as required by the
Securities Act and the Rules and Regulations.
Any certificate signed by any officer of the Sponsor and delivered to the
Underwriter in connection with the sale of the Notes hereunder shall be deemed a
representation and warranty as to the matters covered thereby by the Sponsor to
each person to whom the representations and warranties in this Section 1 are
made.
2. Agreements of the Underwriter. The Underwriter agrees with the Sponsor
that upon the execution of this Agreement and authorization by the Underwriter
of the release of the Notes, the Underwriter shall offer the Notes for sale upon
the terms and conditions set forth in the Prospectus as amended or supplemented.
3. Purchase, Sale and Delivery of the Notes. The Sponsor hereby agrees,
subject to the terms and conditions hereof, to sell the Notes to the
Underwriter, who, upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, hereby agrees to
purchase the entire aggregate principal amount of the Notes, consisting of the
Class A-1 Notes in the amount of $178,667,000, the Class A-2 Notes in the amount
of $250,056,000 and the Class A-3 Notes in the amount of $113, 175,000. At the
time of issuance of the Notes, the Mortgage Loans will be sold by the Seller to
the Trust pursuant to the Sale and Servicing Agreement and the Sponsor will
deposit $44,666,994.45, $62.514.064.00 and $28,293,969.51 into the Pre-Funding
Accounts and $[250,000.00] into the Capitalized Interest Account. The Master
Servicer will be obligated, under the Sale and Servicing Agreement, to service
the Mortgage Loans either directly or through sub-servicers.
The Notes to be purchased by the Underwriter will be delivered by the
Sponsor to the Underwriter (which delivery shall be made through the facilities
of The Depository Trust Company ("DTC")) against payment of the purchase price
therefor, set forth on Schedule 1 hereto, by a same day federal funds wire
payable to the order of the Sponsor.
Settlement shall take place at the offices of Xxxxx Xxxxxxxxxx, LLP, 0000
Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000-0000, at 10:00 a.m. (E.S.T.), on
November 25, 2002, or at such other time thereafter as the Underwriter and the
Sponsor determine (such time being herein
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referred to as the "Closing Date"). The Notes will be prepared in definitive
form and in such authorized denominations as the Underwriter may request,
registered in the name of Cede & Co., as nominee of DTC.
The Sponsor agrees to have the Notes available for inspection and
review by the Underwriter in New York City not later than 1:00 p.m. (E.S.T.)
on the business day prior to the Closing Date.
4. Covenants of the Sponsor. The Sponsor covenants and agrees with the
Underwriter that:
A. The Sponsor will promptly advise the Underwriter and its counsel (i)
when any amendment to the Registration Statement shall have become effective,
(ii) of any request by the Commission for any amendment to the Registration
Statement or the Prospectus or for any additional information, (iii) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding for
that purpose and (iv) of the receipt by the Sponsor of any notification with
respect to the suspension of the qualification of the Notes for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Sponsor will not file any amendment to the Registration Statement
or supplement to the Prospectus after the date hereof and prior to the Closing
Date for the Notes unless the Sponsor has furnished the Underwriter and its
counsel copies of such amendment or supplement for their review prior to filing
and will not file any such proposed amendment or supplement to which the
Underwriter reasonably objects. The Sponsor will use its best efforts to prevent
the issuance of any stop order suspending the effectiveness of the Registration
Statement and, if issued, to obtain as soon as possible the withdrawal thereof.
B. If, at any time during the period in which the Prospectus is required
by law to be delivered, any event occurs 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 to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if it shall be necessary to amend or supplement the Prospectus to
comply with the Act or the rules under the Act, the Sponsor will promptly
prepare and file with the Commission, subject to Paragraph A of this Section 4,
an amendment or supplement that will correct such statement or omission or an
amendment that will effect such compliance and, if such amendment or supplement
is required to be contained in a post-effective amendment to the Registration
Statement, will use its best efforts to cause such amendment of the Registration
Statement to be made effective as soon as possible.
C. The Sponsor will furnish to the Underwriter, without charge, executed
copies of the Registration Statement (including exhibits thereto) and, so long
as delivery of a Prospectus by the Underwriter or a dealer may be required by
the Act, as many copies of the Prospectus, as amended or supplemented, and any
amendments and supplements thereto as the Underwriter may reasonably request.
The Sponsor will pay the expenses of printing (or otherwise reproducing) all
offering documents relating to the offering of the Notes.
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D. As soon as practicable, but not later than sixteen months after the
date hereof, the Sponsor will cause the Trust to make generally available to
Noteholders an earning statement of the Trust covering a period of at least 12
months beginning after the effective date of the Registration Statement which
will satisfy the provisions of Section 11(a) of the Act and, at the option of
the Sponsor, will satisfy the requirements of Rule 158 under the Act.
E. During a period of thirty calendar days from the date as of which this
Agreement is executed, neither the Sponsor nor any affiliate of the Sponsor
will, without the Underwriter's prior written consent (which consent shall not
be unreasonably withheld), enter into any agreement to offer or sell mortgage
loan asset-backed securities backed by mortgage loans, except pursuant to this
Agreement.
F. So long as any of the Notes are outstanding, the Sponsor will cause to
be delivered to the Underwriter (i) all documents required to be distributed to
Noteholders and (ii) from time to time, any other information concerning the
Trust filed with any government or regulatory authority that is otherwise
publicly available.
G. The Sponsor, whether or not the transactions contemplated hereunder are
consummated or this Agreement is terminated, will pay all expenses in connection
with the transactions contemplated herein, including, but not limited to, the
expenses of printing (or otherwise reproducing) all documents relating to the
offering, the reasonable fees and disbursements of its counsel and expenses of
the Underwriter (including the reasonable fees and disbursements of XxXxx Xxxxxx
LLP, as special counsel to the Underwriter) incurred in connection with (i) the
issuance and delivery of the Notes, (ii) preparation, printing, reproducing and
delivery of all documents specified in this Agreement, (iii) any fees and
expenses of the Owner Trustee, the Indenture Trustee, the Note Insurer and any
other credit support provider (including legal fees), accounting fees and
disbursements, and (iv) any fees charged by investment rating agencies for
rating and/or monitoring the Notes.
H. The Sponsor agrees that, so long as the Sponsor shall be acting as the
Master Servicer, it will deliver or cause to be delivered to the Underwriter (i)
the annual statement as to compliance delivered to the Indenture Trustee
pursuant to the Sale and Servicing Agreement, (ii) the annual statement of a
firm of independent public accountants furnished to the Indenture Trustee
pursuant to the Sale and Servicing Agreement as soon as such statement is
furnished to the Sponsor and (iii) any information required to be delivered by
the Sponsor or the Master Servicer to the Indenture Trustee in order for the
Indenture Trustee to prepare the report required pursuant to Section 7.03 of the
form of Indenture heretofore delivered to the Underwriter.
I. The Sponsor will enter into the Trust Agreement, the Sale and Servicing
Agreement, the Insurance and Indemnity Agreement, and all related agreements on
or prior to the Closing Date.
J. The Sponsor will endeavor to qualify the Notes for sale to the extent
necessary under any state securities or Blue Sky laws in any jurisdictions as
may be reasonably requested by the Underwriter, if any, and will pay all
expenses (including fees and disbursements of counsel) in connection with such
qualification and in connection with the determination of the
9
eligibility of the Notes for investment under the laws of such jurisdictions as
the Underwriter may reasonably designate, if any.
5. Conditions of the Underwriter's Obligation. The obligation of the
Underwriter to purchase and pay for the Notes as provided herein shall be
subject to the accuracy as of the date hereof and the Closing Date (as if made
at the Closing Date) of the representations and warranties of the Sponsor
contained herein (including those representations and warranties set forth in
the Sale and Servicing Agreement and incorporated herein), to the accuracy of
the statements of the Sponsor made in any certificate or other document
delivered pursuant to the provisions hereof, to the performance by the Sponsor
of its obligations hereunder, and to the following additional conditions:
A. The Registration Statement shall have become effective no later than
the date hereof, and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened, and the Prospectus shall have
been filed pursuant to Rule 424(b).
B. The Underwriter shall have received the Trust Agreement, the Sale and
Servicing Agreement, the Indenture and the Notes in form and substance
satisfactory to the Underwriter, duly executed by all signatories required
pursuant to the respective terms thereof.
C. 1. The Underwriter shall have received the favorable opinion of the
General Counsel to the Sponsor and the Seller, with respect to the following
items, dated the Closing Date, to the effect that:
(a) The Sponsor has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of California,
and is qualified to do business in each state necessary to enable it to
perform its obligations as Servicer under the Sale and Servicing
Agreement. The Sponsor has the requisite power and authority to execute
and deliver, engage in the transactions contemplated by, and perform and
observe the conditions of, this Agreement, the Trust Agreement, the Sale
and Servicing Agreement, the Indemnification Agreement and the Insurance
and Indemnity Agreement.
(b) This Agreement, the Trust Agreement, the Sale and Servicing
Agreement and the Insurance and Indemnity Agreement have been duly and
validly authorized, executed and delivered by the Sponsor, all requisite
corporate action having been taken with respect thereto, and each
constitutes the valid, legal and binding agreement of the Sponsor
enforceable against the Sponsor in accordance with its respective terms;
and the Securities have been duly and validly authorized and delivered by
the Sponsor, all requisite corporate action having been taken with respect
thereto.
(c) Neither the issuance of the Securities or sale of the Notes, the
execution, delivery or performance by the Sponsor of the Trust Agreement,
the Sale and Servicing Agreement, this Agreement, the Indemnification
Agreement or the Insurance and Indemnity Agreement nor the consummation of
the transactions contemplated therein (A) conflicts or will conflict with
or results or will result in a breach of, or constitutes or will
10
constitute a default under, (i) any term or any court or governmental
agency or body or other tribunal having jurisdiction over the Sponsor; or
(B) results in, or will result in the creation or imposition of any lien,
charge or encumbrance upon the Trust or upon the Notes, except as
otherwise contemplated by the Indenture and the Sale and Servicing
Agreement.
(d) Neither the transfer of the Mortgage Loans to the Trust, the
execution, delivery or performance by the Seller of the Sale and Servicing
Agreement and the Insurance and Indemnity Agreement nor the consummation
of the transactions contemplated therein (A) conflicts or will conflict
with or results or will result in a breach of, or constitutes or will
constitute a default under, (i) any term or provision of the articles of
incorporation or bylaws of the Seller; (ii) any term or provision of any
material agreement, contract, instrument or indenture, to which the Seller
is a party or by which it is bound; or (iii) any order, judgment, writ,
injunction or decree of any court or governmental agency or body or other
tribunal having jurisdiction over the Seller; or (B) results in, or will
result in the creation or imposition of any lien, charge or encumbrance
upon the Trust, except as otherwise contemplated by the Sale and Servicing
Agreement.
(e) The endorsement and delivery of each Mortgage Note, and the
preparation, delivery and recording of an Assignment in recordable form,
with respect to each Mortgage, as and in the manner contemplated by the
Sale and Servicing Agreement, is sufficient fully to transfer to the
Indenture Trustee for the benefit of the Noteholders all right, title and
interest of the Seller in the Mortgage Note and Mortgage, as noteholder
and mortgagee or assignee thereof, and will be sufficient to permit the
Indenture Trustee to avail itself of all protection available under
applicable law against the claims of any present or future creditors of
the Seller and to prevent any other sale, transfer, assignment, pledge or
other encumbrance of the Mortgage Loans by the Seller from being
enforceable.
(f) No consent, approval, authorization or order of, registration or
filing with, or notice to, courts, governmental agency or body or other
tribunal is required under the laws of the State of California, for the
execution, delivery and performance of the Trust Agreement, the Sale and
Servicing Agreement, the Insurance and Indemnity Agreement, the
Indemnification Agreement, this Agreement or the offer, issuance, sale or
delivery of the Notes or the consummation of any other transaction
contemplated thereby by the Sponsor, except such which have been obtained.
(g) No consent, approval, authorization or order of, registration or
filing with, or notice to, courts, governmental agency or body or other
tribunal is required under the laws of the State of Delaware, for the
execution, delivery and performance of the Sale and Servicing Agreement
and the Insurance and Indemnity Agreement or the offer, issuance, sale or
delivery of the Notes or the consummation of any other transaction
contemplated thereby by the Sponsor, except such which have been obtained.
11
(h) Each of the Sponsor and the Seller possesses all material
licenses, certificates, permits or other authorizations issued by the
appropriate state, federal or foreign regulatory agencies or bodies
necessary to conduct the business now operated by it and as described in
the Prospectus and the Prospectus Supplement, and there are no
proceedings, pending or, to such counsel's knowledge, threatened, relating
to the revocation or modification of any such license, certificate, permit
or other authorization which singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would materially and adversely
affect the business, operations, results of operations, financial
position, income, property or assets of the Sponsor or the Seller, as
applicable, taken as a whole.
(i) There are no actions, proceedings or investigations pending, or,
to such counsel's knowledge, threatened against the Sponsor or the Seller
before any court, governmental agency or body or other tribunal (i)
asserting the invalidity of the Trust Agreement, the Sale and Servicing
Agreement, the Insurance and Indemnity Agreement, the Indemnification
Agreement, this Agreement or the Notes, (ii) seeking to prevent the
issuance of the Notes or the consummation of any of the transactions
contemplated by the Trust Agreement, the Sale and Servicing Agreement, the
Indemnification Agreement, the Insurance and Indemnity Agreement or this
Agreement or (iii) which would materially and adversely affect the
performance by the Sponsor of obligations under, or the validity or
enforceability of, the Trust Agreement, the Sale and Servicing Agreement,
the Notes, the Indemnification Agreement, the Insurance and Indemnity
Agreement or this Agreement or by the Seller of obligations under the Sale
and Servicing Agreement and the Insurance and Indemnity Agreement.
(j) The statements in the Prospectus under the caption "MATERIAL
LEGAL ASPECTS OF THE LOANS," to the extent that statements in such section
constitute matters of law or legal conclusions with respect thereto, have
been reviewed by attorneys under the supervision of General Counsel to the
Sponsor and are complete and correct in all material respects.
2. The Underwriter shall have received the favorable opinion of Xxxxx
Xxxxxxxxxx LLP, special counsel to the Sponsor and the Seller, dated the Closing
Date, to the effect that:
(a) The Notes, assuming due execution and authentication by the
Trustee, and delivery and payment therefor pursuant to this Agreement are
validly issued and outstanding and are entitled to the benefits of the
Indenture.
(b) No consent, approval, authorization or order of, registration or
filing with, or notice to, any governmental authority or court is required
under federal laws or the laws of the State of New York, for the
execution, delivery and performance by the Sponsor of the Trust Agreement,
the Sale and Servicing Agreement, this Agreement, the Insurance and
Indemnity Agreement, the Indemnification Agreement, the execution,
delivery and performance by the Seller of the Sale and Servicing Agreement
and the Insurance and Indemnity Agreement or the offer, issue, sale or
delivery of the Notes or the consummation of any other transaction
contemplated thereby by the Sponsor or the Seller, except such which have
been obtained.
12
(c) Neither the issuance of the Securities or sale of the Notes, nor
the execution, delivery or performance by the Sponsor of the Trust
Agreement, the Sale and Servicing Agreement, the Insurance and Indemnity
Agreement, the Indemnification Agreement or this Agreement will (a)
conflict with or result in a breach of, or constitute a default under any
law, rule or regulation of the State of New York or the federal
government, or (b) to such counsel's knowledge, without independent
investigation, results in, or will result in, the creation or imposition
of any lien, charge or encumbrance upon the Trust or upon the Notes,
except as otherwise contemplated by the Indenture or the Sale and
Servicing Agreement.
(d) Neither the transfer of the Mortgage Loans to the Indenture
Trustee nor the execution, delivery or performance by the Seller of the
Sale and Servicing Agreement and the Insurance and Indemnity Agreement
will (a) conflict with or result in a breach of, or constitute a default
under any law, rule or regulation of the State of New York or the federal
government, or (b) to such counsel's knowledge, without independent
investigation, results in, or will result in, the creation or imposition
of any lien, charge or encumbrance upon the Trust or upon the Notes,
except as otherwise contemplated by the Indenture or the Sale and
Servicing Agreement.
(e) The Registration Statement has become effective under the Act,
no objection to the use of Form S-3 with respect to the Registration
Statement was made by the Commission prior to the time it became effective
and, to the best of such counsel's knowledge, no stop order has been
issued and no proceedings therefor initiated or threatened and the
Registration Statement, the Basic Prospectus and the Prospectus Supplement
(other than the financial and statistical data included therein, as to
which such counsel need express no opinion), as of the date on which the
Registration Statement was declared effective and as of the date hereof,
complied and comply as to form in all material respects with the
requirements of the Act and the rules and regulations thereunder, and such
counsel does not know of any amendment to the Registration Statement
required to be filed, or of any contracts, indentures or other documents
of a character required to be filed as an exhibit to the Registration
Statement or required to be described in the Registration Statement, the
Basic Prospectus or the Prospectus Supplement which has not been filed or
described as required.
(f) The Sale and Servicing Agreement and the Trust Agreement conform
in all material respects to the descriptions thereof contained in the
Prospectus Supplement and are not required to be qualified under the Trust
Indenture Act of 1939, as amended. The Indenture has been duly qualified
under the Trust Indenture Act of 1939, as amended.
(g) The Trust is not an "investment company" or under the control of
an investment company as such terms are defined in the Investment Company
Act of 1940, as amended, and the Trust is not required to be registered
under the Investment Company Act of 1940, as amended.
(h) The statements in the Basic Prospectus set forth under the
captions "DESCRIPTION OF THE SECURITIES" and "SERVICING OF THE LOANS" and
the
13
statements in the Prospectus Supplement set forth under the captions
"DESCRIPTION OF THE NOTES AND THE TRUST CERTIFICATES" and "SERVICING OF
THE MORTGAGE LOANS," to the extent such statements purport to summarize
certain provisions of the Notes or of the Indenture and the Sale and
Servicing Agreement, are fair and accurate in all material respects.
(i) Except (i) as to any financial or statistical data contained in
the Registration Statement, (ii) the statements set forth in the Basic
Prospectus under the caption "CREDIT ENHANCEMENT," and in the Prospectus
Supplement under the captions "THE NOTE INSURANCE POLICY" and "THE NOTE
INSURER," and (iii) any Derived Information as to which no opinion or
belief need be expressed, to the best of such counsel's knowledge, the
Registration Statement does not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading and to
the best of such counsel's knowledge, the Basic Prospectus and the
Prospectus Supplement do not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary in light of the circumstances under which such statements were
made in order to make the statements therein not misleading.
(j) A court would hold that the conveyance by the Seller of all
right, title and interest in the Mortgage Loans to the Trustee (except for
the Seller's right, title and interest in the principal and interest due
on such Mortgage Loans on or prior to the Cut-off Date and the right to
scheduled payments of principal and interest on November 1, 2002),
constitutes a sale of the Mortgage Loans and not a borrowing by the Seller
secured by the pledge of the Mortgage Loans. A court would find that,
following such conveyance, the Mortgage Loans and proceeds thereof (net of
payments of principal and interest due on such Mortgage Loans as
hereinbefore specified) are not property of the estate of the Seller
within the meaning of Section 541 of the Bankruptcy Code, and, further
that the Indenture Trustee's rights with respect to the Mortgage Loans and
the proceeds thereof would not subject it to the automatic stay provisions
of Section 362 of the Bankruptcy Code. Since the conveyance of the
Mortgage Loans (net of payments of scheduled principal due and interest
accrued as hereinbefore specified) constitutes a sale of said Mortgage
Loans then the payments thereunder (net of payments of scheduled principal
due on and interest accrued as hereinbefore specified) are not property of
the estate of the Seller and the distributions of such payments by the
Indenture Trustee to the Noteholders are not preferential payments made
by, for, or on behalf of the Seller under the provisions of Section 547 of
the Bankruptcy Code.
(k) If a court characterized the transfer of the Mortgage Loans to
the Trust as a pledge of collateral rather than an absolute sale or
assignment, with respect to the Mortgage Loans and other property included
in the Trust on the date hereof, to the extent governed by the laws of the
State of California, a valid security interest has been created in favor
of the Trust, which security interest of the Trust will be perfected and
will constitute a first perfected security interest, with respect to the
Seller's right, title and interest in and to the Mortgage Notes, upon
endorsement and delivery thereof to the Trust. With respect to the
security interest of the Trust in the Mortgage Notes, Delaware law would
govern.
14
(l) To the best of the knowledge of such counsel, the Commission has
not issued any stop order suspending the effectiveness of the Registration
Statement or any order directed to any prospectus relating to the Notes
(including the Prospectus), and has not initiated or threatened any
proceeding for that purpose.
(m) The Notes will be treated as indebtedness and the Trust will not
be an association (or a publicly traded partnership) taxable as a
corporation or a taxable mortgage pool.
(n) The statements under the captions "SUMMARY OF PROSPECTUS
--CERTAIN FEDERAL INCOME TAX CONSIDERATIONS" and "FEDERAL INCOME TAX
CONSEQUENCES" in the Basic Prospectus and under the captions "SUMMARY OF
TERMS -- FEDERAL INCOME TAX STATUS" and "MATERIAL FEDERAL INCOME TAX
CONSEQUENCES" in the Prospectus Supplement as they relate to federal tax
matters are true and correct in all material respects.
3. The Underwriter shall have received the favorable opinion of XxXxx
Xxxxxx LLP, special counsel to the Underwriter, dated the Closing Date, to the
effect that:
(a) The Notes, assuming due execution and authentication by the
Indenture Trustee, and delivery and payment therefor pursuant to this
Agreement, are validly issued and outstanding and are entitled to the
benefits of the Indenture.
(b) No fact has come to such counsel's attention which causes them
to believe that the Prospectus (other than the financial statement and
other financial and statistical data contained therein and any Derived
Information, as to which such counsel need express no opinion), as of the
date thereof, contained any untrue statement of a material fact or omitted
to state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
(c) Such other matters as the Underwriter may reasonably request.
In rendering their opinions, the counsel described in this Paragraph (C)
may rely, as to matters of fact, on certificates of responsible officers of the
Sponsor, the Indenture Trustee and public officials. Such opinions may also
assume the due authorization, execution and delivery of the instruments and
documents referred to therein by the parties thereto other than the Sponsor.
D. The Underwriter shall have received a letter from Deloitte & Touche
LLP, dated on or before the Closing Date, in form and substance satisfactory to
the Underwriter and counsel for the Underwriter, to the effect that they have
performed certain specified procedures requested by the Underwriter with respect
to the information set forth in the Prospectus and certain matters relating to
the Sponsor.
E. The Notes shall have been rated in the highest rating category by
Xxxxx'x Investors Service, Inc. and by Standard & Poor's Ratings Services, a
division of The XxXxxx-Xxxx Companies, Inc., and such ratings shall not have
been rescinded. The Underwriter and its counsel shall have received copies of
any opinions of counsel supplied to the rating organizations relating to any
matters with respect to the Notes. Any such opinions shall be dated the Closing
15
Date and addressed to the Underwriter or accompanied by reliance letters to the
Underwriter or shall state that the Underwriter may rely upon them.
F. The Underwriter shall have received from the Sponsor a certificate,
signed by the president, a senior vice president or a vice president of the
Sponsor, dated the Closing Date, to the effect that the signer of such
certificate has carefully examined the Registration Statement, the Trust
Agreement, the Sale and Servicing Agreement and this Agreement and that, to the
best of his or her knowledge based upon reasonable investigation:
1. the representations and warranties of the Sponsor in this Agreement and
in the Indemnification Agreement, as of the Closing Date, and in the Sale
and Servicing Agreement, the Trust Agreement, the Insurance and Indemnity
Agreement and in all related agreements, as of the date specified in such
agreements, are true and correct, and the Sponsor has complied with all
the agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
2. there are no actions, suits or proceedings pending, or to the best of
such officer's knowledge, threatened against or affecting the Sponsor
which if adversely determined, individually or in the aggregate, would be
reasonably likely to adversely affect the Sponsor's obligations under the
Trust Agreement, the Sale and Servicing Agreement, the Insurance and
Indemnity Agreement, the Indemnification Agreement, or under this
Agreement in any material way; and no merger, liquidation, dissolution or
bankruptcy of the Sponsor is pending or contemplated;
3. the information contained in the Registration Statement and Prospectus
relating to the Sponsor, the Mortgage Loans or the servicing procedures of
it or its affiliates is true and accurate in all material respects and
nothing has come to his or her attention that would lead such officer to
believe that the Registration Statement and Prospectus includes any untrue
statement of a material fact or omits to state a material fact necessary
to make the statements therein not misleading;
4. the information set forth in the Schedules of Mortgage Loans is true
and correct in all material respects;
5. there has been no amendment or other document filed affecting the
articles of incorporation or bylaws of the Sponsor since December 31,
1999, and no such amendment has been authorized. No event has occurred
which has affected the good standing of the Sponsor under the laws of the
State of California;
6. 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
Sponsor and its subsidiaries, taken as a whole, from December 31, 2001;
7. on or prior to the Closing Date, there has been no downgrading, nor has
any notice been given of (A) any amended or potential downgrading or (B)
any review or possible changes in rating, the direction of which has not
been indicated, in the rating, if any, accorded the Sponsor or in any
rating accorded any securities of the Sponsor, if any,
16
by any "nationally recognized statistical rating organization," as such
term is defined for purposes of the Act; and
8. each person who, as an officer or representative of the Sponsor, signed
or signs the Registration Statement, the Trust Agreement, the Sale and
Servicing Agreement, this Agreement, the Insurance and Indemnity
Agreement, the Indemnification Agreement, or any other document delivered
pursuant hereto, on the date of such execution, or on the Closing Date, as
the case may be, in connection with the transactions described in the
Trust Agreement, the Sale and Servicing Agreement, the Indemnification
Agreement, the Insurance and Indemnity Agreement and this Agreement was,
at the respective times of such signing and delivery, and is now, duly
elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such
documents are their genuine signatures.
The Sponsor shall attach to such certificate a true and correct copy of
its certificate or articles of incorporation, as appropriate, and bylaws which
are in full force and effect on the date of such certificate and a certified
true copy of the resolutions of its Board of Directors with respect to the
transactions contemplated herein.
G. The Underwriter shall have received from the Seller a certificate,
signed by the president, a senior vice president or a vice president of the
Seller, dated the Closing Date, to the effect that the signer of such
certificate has carefully examined the Sale and Servicing Agreement and that, to
the best of his or her knowledge based upon reasonable investigation:
1. the representations and warranties of the Seller in the Sale and
Servicing Agreement, the Insurance and Indemnity Agreement and in all
related agreements, as of the date specified in such agreements, are true
and correct, and the Seller has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied at
or prior to the Closing Date;
2. there are no actions, suits or proceedings pending, or to the best of
such officer's knowledge, threatened against or affecting the Seller which
if adversely determined, individually or in the aggregate, would be
reasonably likely to adversely affect the Seller's obligations under the
Sale and Servicing Agreement, the Insurance and Indemnity Agreement or
under this Agreement in any material way; and no merger, liquidation,
dissolution or bankruptcy of the Seller is pending or contemplated;
3. the information set forth in the Schedules of Mortgage Loans is true
and correct in all material respects;
4. there has been no amendment or other document filed affecting the
articles of incorporation or bylaws of the Seller since its incorporation,
and no such amendment has been authorized. No event has occurred which has
affected the good standing of the Seller under the laws of the State of
Delaware;
5. 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
17
earnings, business or operations of the Seller and its subsidiaries, taken
as a whole, from December 31, 2001;
6. on or prior to the Closing Date, there has been no downgrading, nor has
any notice been given of (A) any amended or potential downgrading or (B)
any review or possible changes in rating, the direction of which has not
been indicated, in the rating, if any, accorded the Seller or in any
rating accorded any securities of the Seller, if any, by any "nationally
recognized statistical rating organization," as such term is defined for
purposes of the Act; and
7. each person who, as an officer or representative of the Seller, signed
or signs the Sale and Servicing Agreement, the Insurance and Indemnity
Agreement, or any other document delivered pursuant hereto, on the date of
such execution, or on the Closing Date, as the case may be, in connection
with the transactions described in the Sale and Servicing Agreement and
the Insurance and Indemnity Agreement was, at the respective times of such
signing and delivery, and is now, duly elected or appointed, qualified and
acting as such officer or representative, and the signatures of such
persons appearing on such documents are their genuine signatures.
The Seller shall attach to such certificate a true and correct copy of its
certificate or articles of incorporation, as appropriate, and bylaws which are
in full force and effect on the date of such certificate and a certified true
copy of the resolutions of its Board of Directors with respect to the
transactions contemplated herein.
H. The Underwriter shall have received an opinion of counsel to the Backup
Servicer, dated the Closing Date and in form and substance satisfactory to the
Underwriter and its counsel regarding the due organization of the Backup
Servicer, the due authorization, execution and delivery by the Backup Servicer
of the Sale and Servicing Agreement, no conflicts or violation of organizational
documents, contracts or law and other related matters.
I. The Underwriter shall have received an opinion of counsel to the
Indenture Trustee, dated the Closing Date and in form and substance satisfactory
to the Underwriter and its counsel, to the effect that:
1. the Indenture Trustee is a national banking association duly organized,
validly existing and in good standing under the laws of the United States
and has the power and authority to enter into and to take all actions
required of it under the Indenture;
2. the Indenture has been duly authorized, executed and delivered by the
Indenture Trustee and the Indenture constitutes the legal, valid and
binding obligation of such party, enforceable against it in accordance
with its terms, except as enforceability thereof may be limited by (A)
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally, as such laws would apply in
the event of a bankruptcy, insolvency or reorganization or similar
occurrence affecting such party, and (B) general principles of equity
regardless of whether such enforcement is sought in a proceeding at law or
in equity;
18
3. no consent, approval, authorization or other action by any governmental
agency or body or other tribunal is required on the part of the Indenture
Trustee in connection with its execution and delivery of the Indenture or
the performance of its obligations thereunder;
4. the Notes have been duly executed, authenticated and delivered by the
Indenture Trustee; and
5. the execution and delivery of, and performance by the Indenture Trustee
of its obligations under, the Indenture do not conflict with or result in
a violation of any statute or regulation applicable to such party, or the
articles or bylaws of the such party, or to the best knowledge of such
counsel, any governmental authority having jurisdiction over such party or
the terms of any indenture or other agreement or instrument to which the
Indenture Trustee is a party or by which it is bound.
In rendering such opinion, such counsel may rely, as to matters of fact,
on certificates of responsible officers of the Sponsor, the Indenture Trustee
and public officials. Such opinion may also assume the due authorization,
execution and delivery of the instruments and documents referred to therein by
the parties thereto other than the Indenture Trustee, as the case may be.
J. The Underwriter shall have received from the Indenture Trustee a
certificate, signed by the President, a senior vice president or an assistant
vice president of the Indenture Trustee, dated the Closing Date, to the effect
that each person who, as an officer or representative of the Indenture Trustee,
signed or signs the Notes, the Indenture or any other document delivered
pursuant hereto, on the date hereof or on the Closing Date, in connection with
the transactions described in the Indenture was, at the respective times of such
signing and delivery, and is now, duly elected or appointed, qualified and
acting as such officer or representative, and the signatures of such persons
appearing on such documents are their genuine signatures.
K. The Underwriter shall have received an opinion of counsel to the Owner
Trustee, dated the Closing Date and in form and substance satisfactory to the
Underwriter and its counsel regarding the due organization of the Owner Trustee,
the due authorization, execution and delivery by the Owner Trustee of the Trust
Agreement, no conflicts or violations of organizational documents, contracts or
laws and other related matters, in form and substance reasonably satisfactory to
the Representative and their counsel.
L. The Underwriter shall have received an opinion of counsel to the Trust,
dated the Closing Date and in form and substance satisfactory to the Underwriter
and its counsel regarding (i) the due organization of the Trust, (ii)
enforceability of the Trust Agreement, (iii) other general Delaware law matters
with respect to the Trust, including, without limitation, the due authorization,
execution and delivery of the Sale and Servicing Agreement, the Indenture, and
the Insurance and Indemnity Agreement, by the Trust and the due authorization
and issuance of the Notes, and (iv) the perfection and priority of the security
interests created by the Indenture, in each case, in form and substance
reasonably satisfactory to the Underwriter and its counsel.
19
M. The Policy relating to the Notes shall have been duly executed and
issued at or prior to the Closing Date and shall conform in all material
respects to the description thereof in the Prospectus.
N. [Reserved]
O. [Reserved]
P. [Reserved]
Q. On or prior to the Closing Date, there has been no downgrading, nor has
any notice been given of (A) any intended or potential downgrading or (B) any
review or possible changes in rating, the direction of which has not been
indicated, in the rating, if any, accorded the Sponsor or in any rating accorded
any securities of the Sponsor, if any, by any "nationally recognized statistical
rating organization," as such term is defined for purposes of the Act.
R. On or prior to the Closing Date there shall not have occurred any
downgrading, nor shall any notice have been given of (A) any intended or
potential downgrading or (B) any review or possible change in rating the
direction of which has not been indicated, in the rating accorded the Note
Insurer's claims paying ability by any "nationally recognized statistical rating
organization," as such term is defined for purposes of the Act.
S. There has not occurred any change, or any development involving a
prospective change, in the condition, financial or otherwise, or in the
earnings, business or operations, since December 31, 2001, (A) of the Sponsor or
(B) of the Note Insurer, that is in the Underwriter's judgment material and
adverse and that makes it in the Underwriter's judgment impracticable to market
the Notes on the terms and in the manner contemplated in the Prospectus.
T. The Underwriter shall have received the favorable opinion dated the
Closing Date of internal counsel of the Note Insurer ("Insurer Counsel") in form
and scope satisfactory to counsel for the Underwriter, to the effect that:
1. The Note Insurer is a stock insurance company, duly organized and
validly existing under the laws of the State of New York and is licensed
and has the power and authority to issue the Policy under the laws of the
State of New York.
2. The Policy has been duly authorized, executed and delivered and is the
valid and binding obligation of the Note Insurer enforceable in accordance
with its terms, except that the enforcement of the Policy may be limited
by laws relating to bankruptcy, insolvency, reorganization, moratorium,
receivership and other similar laws affecting creditors' rights generally
and by general principles of equity (regardless of whether the enforcement
of such remedies is considered in a proceeding in equity or at law).
3. The Note Insurer has the power and authority to perform its obligations
under the Insurance and Indemnity Agreement and the Indemnification
Agreement and the Insurance and Indemnity Agreement and the
Indemnification Agreement have been duly executed and are the valid and
binding obligations of the Note Insurer, each enforceable in accordance
with its terms, except that the enforcement of the Insurance and Indemnity
20
Agreement and the Indemnification Agreement may be limited by laws
relating to bankruptcy, insolvency, reorganization, moratorium,
receivership and other similar laws affecting creditors' rights generally
and by general principles of equity and, in the case of the
Indemnification Agreement, subject to principles of public policy limiting
the right to enforce the indemnification provisions contained therein
insofar as such provisions relate to indemnification for liabilities
arising under the securities laws.
4. No consent, approval, authorization, filing or order of any state or
federal court or governmental agency or body is required on the part of
the Note Insurer the lack of which would adversely affect the validity and
enforceability of the Policy.
5. The execution, delivery and performance by the Note Insurer of its
obligations under the Policy do not contravene any provision of the
restated charter or By-Laws of the Note Insurer. The execution, delivery
and performance by the Note Insurer of its obligations under the Policy do
not, to the extent that either of the following would affect the validity
or enforceability of the Policy, (a) contravene any law or government
regulation or order presently binding on the Note Insurer or (b)
contravene any provision of or constitute a default under any indenture,
contract or other instrument to which the Note Insurer is a party or by
which it is bound.
6. To the extent that the Policy constitutes a security within the meaning
of Section 2(1) of the Securities Act, it is a security exempt from the
registration requirements of the Securities Act.
7. The description of the Policy in the Prospectus Supplement under the
headings "THE NOTE INSURER" and "THE NOTE INSURANCE POLICY" is, to the
extent that such description constitutes statements of matters of law or
legal conclusions with respect thereto, accurate in all material respects;
provided, however, that no opinion need be expressed as to the accuracy of
any financial statements or other financial or statistical data contained
in or omitted from the Prospectus Supplement, including such statements or
other information included under such caption or in any appendix to the
Prospectus Supplement.
8. The information set forth under the captions "THE NOTE INSURANCE
POLICY" and "THE NOTE INSURER" in the Prospectus Supplement dated November
20, 2002, insofar as such statements constitute a description of the
Policy, accurately summarizes the Policy.
In rendering this opinion, such counsel may rely, as to matters of fact,
on certificates of responsible officers of the Sponsor, the Indenture Trustee,
the Note Insurer and public officials. Such opinion may assume the due
authorization, execution and delivery of the instruments and documents referred
to therein by the parties thereto other than the Note Insurer.
U. The Underwriter shall have received from XxXxx Xxxxxx LLP, special
counsel to the Underwriter, such opinion or opinions, dated the Closing Date,
with respect to the issuance and sale of the Notes, the Prospectus and such
other related matters as the Underwriter shall reasonably require.
21
V. The Underwriter and its counsel shall have received copies of any
opinions of counsel to the Sponsor or the Note Insurer supplied to the Trustee
relating to matters with respect to the Notes or the Policy. Any such opinions
shall be dated the Closing Date and addressed to the Underwriter or accompanied
by reliance letters to the Underwriter or shall state that the Underwriter may
rely thereon.
W. The Underwriter shall have received such further information,
certificates and documents as the Underwriter may reasonably have requested not
fewer than three (3) full business days prior to the Closing Date.
If any of the conditions specified in this Section 5 shall not have been
fulfilled in all respects when and as provided in this Agreement, if the Sponsor
is in breach of any covenants or agreements contained herein or if any of the
opinions and certificates mentioned above or elsewhere in this Agreement shall
not be in all material respects reasonably satisfactory in form and substance to
the Underwriter and its counsel, this Agreement and all obligations of the
Underwriter hereunder, may be canceled on, or at any time prior to, the Closing
Date by the Underwriter. Notice of such cancellation shall be given to the
Sponsor in writing, or by telephone or telegraph confirmed in writing.
6. Expenses. If the sale of the Notes provided for herein is not
consummated by reason of a default by the Sponsor in its obligations hereunder,
then the Sponsor will reimburse the Underwriter, upon demand, for all reasonable
out-of-pocket expenses (including, but not limited to, the reasonable fees and
expenses of XxXxx Xxxxxx LLP) that shall have been incurred by the Underwriter
in connection with its investigation with regard to the Sponsor, the Notes and
the proposed purchase and sale of the Notes.
7. Indemnification and Contribution. A. Regardless of whether any Notes
are sold, the Sponsor will indemnify and hold harmless the Underwriter, each of
its respective officers and directors and each person who controls the
Underwriter within the meaning of the Act or the Securities Exchange Act of 1934
(the "1934 Act"), against any and all losses, claims, damages, or liabilities
(including the cost of any investigation, legal and other expenses incurred in
connection with any amounts paid in settlement of any action, suit, proceeding
or claim asserted), joint or several, to which they may become subject, under
the Act, the 1934 Act or other federal or state law or regulation, at common law
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained (i) in the Registration
Statement, or any amendment thereof or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
necessary to make the statements therein, not misleading or (ii) in the Basic
Prospectus or the Prospectus Supplement or any amendment thereto or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading, and will
promptly reimburse each such indemnified party upon demand for any legal or
other expenses reasonably incurred by it in connection with investigating or
defending against such loss, claim, damage, liability or action; provided,
however, that the Sponsor shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in
22
conformity with written information furnished to the Sponsor by or on behalf of
the Underwriter specifically for use in connection with the preparation thereof.
B. Regardless of whether any Notes are sold, the Underwriter agrees to
indemnify and hold harmless the Sponsor, each of its officers and directors and
each person, if any, who controls the Sponsor within the meaning of the Act or
the 1934 Act against any losses, claims, damages or liabilities to which they or
any of them become subject under the Act, the 1934 Act or other federal or state
law or regulation, at common law or otherwise, to the same extent as the
foregoing indemnity, insofar as such losses, claims, damages or liabilities or
actions in respect thereof arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in (i) the Registration
Statement, or any amendment thereof or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
necessary to make the statements therein not misleading or in (ii) the Basic
Prospectus or the Prospectus Supplement or any amendment thereto or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading, in each case to
the extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made therein in reliance upon and
in conformity with written information furnished to the Sponsor by or on behalf
of the Underwriter specifically for use in the preparation thereof and the
Sponsor and the Underwriter acknowledge that the information specified in
Section 8 hereof is the only information so furnished by the Underwriter to the
Sponsor in writing, and will promptly reimburse the Sponsor upon demand for any
legal or other expenses reasonably incurred by the Sponsor in connection with
investigating or defending against such loss, claim, damage, liability or
action.
C. In case any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity may be sought
pursuant to Paragraphs A and B above such person (hereinafter called the
indemnified party) shall promptly notify the person against whom such indemnity
may be sought (hereinafter called the indemnifying party) in writing thereof;
but the omission to notify the indemnifying party shall not relieve such
indemnifying party from any liability which it may have to any indemnified party
otherwise than under such Paragraph. The indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such proceeding
any indemnified party shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such indemnified
party unless (i) the indemnifying party has not retained counsel reasonably
satisfactory to the indemnified party, (ii) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel,
or (iii) the named parties to any such proceeding (including any impleaded
parties) include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm for all such indemnified parties, and that all such
fees and expenses shall be reimbursed as they are incurred. Such firm shall be
designated
23
in writing by the Underwriter in the case of parties indemnified pursuant to
Paragraph A and by the Sponsor in the case of parties indemnified pursuant to
Paragraph B. The indemnifying party shall not be liable for any settlement of
any proceeding effected without its written consent, but if settled with such
consent or if there is a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated above, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
D. The Underwriter agrees to provide the Sponsor, for its review, no later
than two Business Days prior to the date on which the information required to be
filed in accordance with the terms of the No-Action Letters (as defined herein)
with a copy of its Derived Information for filing with the Commission on Form
8-K.
E. The Underwriter agrees, assuming all Sponsor-Provided Information (as
defined below) is accurate and complete in all material respects, to indemnify
and hold harmless the Sponsor, each of the Sponsor's officers and directors and
each person who controls the Sponsor 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 Derived Information provided by the Underwriter,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, and agrees to reimburse 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 7(E) shall be in addition to any liability which
the Underwriter may otherwise have.
The procedures set forth in Section 7(C) shall be equally applicable to
this Section 7(E).
F. If the indemnification provided for in this Section 7 is unavailable to
an indemnified party in respect of any losses, claims, damages or liabilities
referred to herein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Sponsor and the Underwriter from the sale of the Notes or (ii) if the
allocation provided by
24
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only relative benefits referred to in clause (i)
above but also the relative fault of the Sponsor and of the Underwriter in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations.
The relative benefits received by the Sponsor and the Underwriter shall be
deemed to be in such proportion so that the Underwriter is responsible for that
portion determined by multiplying the total amount of such losses, claims,
damages and liabilities, including legal and other expenses, by a fraction, the
numerator of which is (x) the excess of the Aggregate Resale Price of the Notes
purchased by the Underwriter over the aggregate purchase price of the Notes
specified in Section 3 of this Agreement and the denominator of which is (y) the
Aggregate Resale Price of the Notes purchased by the Underwriter and the Sponsor
is responsible for the balance, provided, however, that no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of the immediately preceding
sentence, the "Aggregate Resale Price" of the Notes at the time of any
determination shall be the weighted average of the purchase prices (in each case
expressed as a percentage of the aggregate principal amount of the Notes so
purchased), determined on the basis of such principal amounts, paid to the
Underwriter by all subsequent purchasers that purchased the Notes on or prior to
such date of determination. The relative fault of the Sponsor and the
Underwriter shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Sponsor
or by the Underwriter and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
G. The Sponsor and the Underwater agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in Paragraph D. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in Paragraph D shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 7, the
Underwriter shall not be required to contribute any amount in excess of the
amount of the underwriting discounts and commissions received by the Underwriter
in connection with its purchase of the Notes.
H. For purposes of this Section 7, the term "Derived Information" means
such portion, if any, of the information required to be delivered to the Sponsor
pursuant to Section 7(D) for filing with the Commission on Form 8-K as:
(i) is not contained in the Prospectus without taking into account
information incorporated therein by reference; and
(ii) does not constitute Sponsor-Provided Information.
25
(iii) is of the type of information defined as Collateral term
sheets, Structural terns sheets or Computational Materials (as such terms
are interpreted in the No-Action Letters (as defined below)).
"Sponsor-Provided Information" means the information contained on any computer
tape furnished to the Underwriter by the Sponsor concerning the assets
comprising the Trust.
The terms "Collateral term sheet" and "Structural term sheet" shall have
the respective meanings assigned to them in the February 13, 1995 letter (the
"PSA Letter") of Cleary, Gottlieb, Xxxxx & Xxxxxxxx on behalf of the Public
Securities Association (which letter, and the SEC staff's response thereto, were
publicly available February 17, 1995). The term "Collateral term sheet" as used
herein includes any subsequent Collateral term sheet that reflects a substantive
change in the information presented. The term "Computational Materials" has the
meaning assigned to it in the May 17, 1994 letter (the "Xxxxxx letter" and
together with the PSA Letter, the "No-Action Letters") of Xxxxx & Xxxx LLP on
behalf of Xxxxxx, Peabody & Co., Inc. (which letter, and the SEC staff's
response thereto, were publicly available May 20, 1994).
I. The Sponsor and the Underwriter each expressly waive, and agree not to
assert, any defense to their respective indemnification and contribution
obligations under this Section 7 which they might otherwise assert based upon
any claim that such obligations are unenforceable under federal or state
securities laws or by reasons of public policy.
J. The obligations of the Sponsor under this Section 7 shall be in
addition to any liability which the Sponsor may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls the
Underwriter within the meaning of the Act or the 1934 Act; and the obligations
of the Underwriter under this Section 7 shall be in addition to any liability
that the Underwriter may otherwise have and shall extend, upon the same terms
and conditions, to each director of the Sponsor and to each person, if any, who
controls the Sponsor within the meaning of the Act or the 1934 Act; provided,
however, that in no event shall the Sponsor or the Underwriter be liable for
double indemnification.
8. Information Supplied by the Underwriter. The statements set forth in
the second, third, fourth and fifth paragraphs under the heading "PLAN OF
DISTRIBUTION" in the Prospectus Supplement (to the extent such statements relate
to the Underwriter), constitute the only information furnished by the
Underwriter to the Sponsor for the purposes of Sections 1(B) and 7(A) hereof.
9. Notices. All communications hereunder shall be in writing and, if sent
to the Underwriter, shall be mailed or delivered or telecopied and confirmed in
writing to the Underwriter at Xxxxxx Brothers Inc., 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxx X. Xxxxx and, if sent to the Sponsor,
shall be mailed, delivered or telegraphed and confirmed in writing to the
Sponsor at the address set forth above, Attention: Xxxxx Xxxxxxx.
10. Survival. All representations, warranties, covenants and agreements of
the Sponsor contained herein or in agreements or certificates delivered pursuant
hereto, the agreements of the Underwriter and the Sponsor contained in Section 7
hereof, and the representations, warranties and agreements of the Underwriter
contained in Section 2 hereof,
26
shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Underwriter or any controlling
persons, or any subsequent purchaser or the Sponsor or any of its officers,
directors or any controlling persons, and shall survive delivery of and payment
for the Notes. The provisions of Sections 4, 6 and 7 hereof shall survive the
termination or cancellation of this Agreement.
11. Termination. The Underwriter shall have the right to terminate this
Agreement by giving notice as hereinafter specified at any time at or prior to
the Closing Date if (a) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange, the American Stock Exchange, the National Association of Securities
Dealers, Inc., the Chicago Board Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade, (b) trading of any securities of the
Sponsor shall have been suspended on any exchange or in any over-the-counter
market, (c) a general moratorium on commercial banking activities shall have
been declared by either federal or New York State authorities, (d) there shall
have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis which, in the Underwriter's
reasonable judgment, is material and adverse, and, in the case of any of the
events specified in clauses (a) through (d), such event singly or together with
any other such event makes it in the Underwriter's reasonable judgment
impractical to market the Notes. Any such termination shall be without liability
of any other party except that the provisions of Paragraph G of Section 4 and
Sections 6 and 7 hereof shall at all times be effective. If the Underwriter
elects to terminate this Agreement as provided in this Section 11, the Sponsor
shall be notified promptly by the Underwriter by telephone, telegram or
facsimile transmission, in any case, confirmed by letter.
12. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and assigns (which
successors and assigns do not include any person purchasing a Certificate from
the Underwriter), and the officers and directors and controlling persons
referred to in Section 7 hereof and their respective successors and assigns, and
no other persons will have any right or obligations hereunder.
13. Applicable Law; Venue. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York. Any
action or proceeding brought to enforce or arising out of any provision of this
Agreement shall be brought only in a state or federal court located in the
Borough of Manhattan, New York City, New York, and the parties hereto expressly
consent to the jurisdiction of such courts and agree to waive any defense or
claim of forum non conveniens they may have with respect to any such action or
proceeding brought.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall together constitute but one and the same
instrument.
15. Amendments and Waivers. This Agreement may be amended, modified,
altered or terminated, and any of its provisions waived, only in a writing
signed on behalf of the parties hereto.
27
IN WITNESS WHEREOF, the parties hereto hereby execute this Underwriting
Agreement, as of the day and year first above written.
ACCREDITED HOME LENDERS, INC.
By: /s/ Xxx XxXxxxx
---------------------------------
Name: Xxx XxXxxxx
Title: Executive Vice-President
XXXXXX BROTHERS INC.
By: /s/ Xxxxx Xxxxx
---------------------------------
Name: Xxxxx Xxxxx
Title: Managing Director
SCHEDULE A
Initial Principal Amount of Notes
Purchased by Underwriter
Underwriter Class A-1 Class A-2 Class A-3
------------ ------------ ------------
Xxxxxx Brothers Inc............ $178,667,000 $250,056,000 $113,175,000
Purchase Price for Class A-1 Notes - 99.966051%
Purchase Price for Class A-2 Notes - 100.0000%
%
Purchase Price for Class A-3 Notes - 100.0000%
