EXHIBIT 1.1
$450,000,000
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2003-1
UNDERWRITING AGREEMENT
March 26, 2003
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
as Representative of the Underwriters
named in Schedule A hereto
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Bear ▇▇▇▇▇▇▇ Asset Backed Securities, Inc. (the "Depositor"), a
Delaware corporation, has authorized the issuance and sale of Pass-Through
Certificates, Series 2003-1, in the original principal amount and with the
designation set forth in Schedule A hereto (the "Certificates" or the
"Securities"), evidencing obligations of ABFS Mortgage Loan Trust 2003-1 (the
"Issuer" or the "Trust"). The underwriters named in Schedule A hereto (the
"Underwriters"), for whom Bear, ▇▇▇▇▇▇▇ & Co. Inc. is acting as representative
(in such capacity, the "Representative"), are purchasing all of the Certificates
at the price or prices set forth on Schedule A hereto.
The Certificates will be issued pursuant to a Pooling and Servicing
Agreement dated as of March 1, 2003 (the "Pooling and Servicing Agreement"),
among the Depositor, American Business Credit, Inc. ("ABC" and, in such
capacity, the "Servicer") and JPMorgan Chase Bank (the "Trustee"). As used
herein, the "Basic Documents" shall mean (i) the Unaffiliated Seller's Agreement
dated as of March 1, 2003 (the "Unaffiliated Seller's Agreement") by and among
the Depositor, ABFS 2003-1, Inc. (the "Unaffiliated Seller"), ABC, HomeAmerican
Credit, Inc. d/b/a Upland Mortgage ("Upland") and American Business Mortgage
Services, Inc. ("ABMS" and, collectively with ABC and Upland, the
"Originators"), (ii) the Pooling and Servicing Agreement, (iii) this Agreement,
(iv) the Insurance and Indemnity Agreement dated as of March 31, 2003 (the
"Insurance Agreement") among Radian Asset Assurance Inc. (the "Enhancer"), the
Depositor, the Servicer, the Originators, the Unaffiliated Seller and the
Trustee and (v) the Indemnification Agreement dated March 31, 2003 (the
"Indemnification Agreement") between the Underwriters and the Enhancer.
The Certificates are more fully described in the Registration
Statement, which the Depositor has furnished to the Underwriters. Capitalized
terms used herein that are not
otherwise defined shall have the meanings ascribed thereto in the Pooling and
Servicing Agreement.
SECTION 1. Representations and Warranties of the Depositor. The
Depositor represents and warrants to, and agrees with you that:
(a) A Registration Statement on Form S-3 (No. 333-91334)
has (i) been prepared by the Depositor in conformity with the requirements of
the Securities Act of 1933, as amended (the "Securities Act"), and the rules and
regulations (the "Rules and Regulations") of the United States Securities and
Exchange Commission (the "Commission") thereunder, (ii) been filed with the
Commission under the Securities Act and (iii) become effective under the
Securities Act. Copies of such Registration Statement have been delivered by the
Depositor to the Underwriters. As used in this Agreement, "Effective Time" means
the date and the time as of which such Registration Statement, or the most
recent post-effective amendment thereto, if any, was declared effective by the
Commission. "Effective Date" means the date of the Effective Time. "Registration
Statement" means such registration statement, as amended, at the Effective Time,
including any documents incorporated by reference therein at such time.
"Preliminary Prospectus" means each prospectus included in such Registration
Statement, or amendments thereto, including any preliminary prospectus
supplement that, as completed, is proposed to be used in connection with the
sale of the Certificates and any prospectus filed with the Commission by the
Depositor with the consent of the Underwriters pursuant to Rule 424(b) of the
Rules and Regulations. "Prospectus" means the final prospectus dated February
25, 2003 (the "Basic Prospectus"), as supplemented by the final prospectus
supplement dated March 26, 2003 (the "Prospectus Supplement") relating to the
Certificates, to be filed with the Commission pursuant to paragraph (2), (3) or
(5) of Rule 424(b) of the Rules and Regulations. Reference herein to the
Prospectus shall be deemed to refer to and include any documents incorporated by
reference therein pursuant to item 12 of Form S-3 under the Securities Act as of
the date of the Prospectus. Any reference to any amendment or supplement to the
Prospectus shall be deemed to refer to and include any document filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") after the date
of the Preliminary Prospectus, if any, or the Prospectus, as the case may be,
and incorporated by reference in the Preliminary Prospectus, if any, or the
Prospectus, as the case may be. Any reference to any amendment to the
Registration Statement shall be deemed to include any report of the Depositor
filed with the Commission pursuant to Section 13(a) or 15(d) of the Exchange Act
after the Effective Time that is incorporated by reference in the Registration
Statement. The Commission has not issued any order preventing or suspending the
use of the Preliminary Prospectus, if any, or the Prospectus. There are no
contracts or documents of the Depositor that are required to be filed as
exhibits to the Registration Statement pursuant to the Securities Act or the
Rules and Regulations that 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 of Form S-3, as set forth in the General Instructions
thereto, have been satisfied.
(b) The Registration Statement conforms, and the
Prospectus and any further amendments or supplements to the Registration
Statement or the Prospectus will, when they become effective or are filed with
the Commission, as the case may be, conform in all respects to the requirements
of the Securities Act and the Rules and Regulations. The Registration
2
Statement, as of the Effective Date thereof and of any amendment thereto, did
not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading. The Prospectus, as of its date and as amended or supplemented as
of the Closing Date, does not and will not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein not misleading; provided, however, that no representation or
warranty is made as to (i) information contained in or omitted from the
Registration Statement or the Prospectus in reliance upon and in conformity with
written information furnished to the Depositor in writing by any Underwriter
through the Representative expressly for use therein or (ii) information
contained in or omitted from the Statement of Eligibility and Qualification on
Form T-1 of the Trustee (if applicable) under the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act"). The only information furnished by or on
behalf of the Underwriters for use in connection with the preparation of the
Registration Statement or the Prospectus is described in Section 8(h) hereof.
(c) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading; and
any further documents so filed and incorporated by reference in the Prospectus,
when such documents become effective or are filed with the Commission, as the
case may be, will conform in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder, and will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(d) Since the respective dates as of which information is
given in the Prospectus, there has not been any material adverse change in the
general affairs, management, financial condition or results of operations of the
Depositor, other than as set forth or contemplated in the Prospectus as
supplemented or amended as of the Closing Date.
(e) The Depositor has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the State
of Delaware, is duly qualified to do business and is in good standing as a
foreign corporation in each jurisdiction in which its ownership or lease of
property or the conduct of its business requires such qualification, and has all
power and authority necessary to own or hold its properties, to conduct the
business in which it is engaged and to enter into and perform its obligations
under this Agreement and the other Basic Documents to which it is a party, and
to cause the Certificates to be issued.
(f) There are no actions, proceedings or investigations
pending with respect to which the Depositor has received service of process
before, or threatened by, any court, administrative agency or other tribunal to
which the Depositor is a party or of which any of its properties is the subject
(i) that if determined adversely to the Depositor would have a material
3
adverse effect on the business or financial condition of the Depositor, (ii)
that assert the invalidity of this Agreement or the other Basic Documents to
which it is a party, (iii) that seek to prevent the issuance of the Certificates
or the consummation by the Depositor of any of the transactions contemplated by
the other Basic Documents to which it is a party, or (iv) that might materially
and adversely affect the performance by the Depositor of its obligations under,
or the validity or enforceability of, the other Basic Documents to which it is a
party.
(g) This Agreement has been, and the other Basic
Documents to which it is a party, when executed and delivered as contemplated
hereby and thereby, will have been, duly authorized, executed and delivered by
the Depositor, and this Agreement constitutes, and the other Basic Documents to
which it is a party, when executed and delivered as contemplated herein, will
constitute, legal, valid and binding instruments enforceable against the
Depositor in accordance with their respective terms, subject as to
enforceability to (i) applicable bankruptcy, reorganization, insolvency,
moratorium or other similar laws affecting creditors rights generally, (ii)
general principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law) and (iii) with respect to rights of indemnity,
limitations of public policy under applicable securities laws.
(h) The direction by the Depositor to the Trustee to
execute, authenticate and deliver the Certificates has been duly authorized by
the Depositor, and assuming the Trustee has been duly authorized to do so, when
executed, authenticated and delivered by the Trustee in accordance with the
Pooling and Servicing Agreement, the Certificates will be validly issued and
outstanding and will be entitled to the benefits provided by the Pooling and
Servicing Agreement.
(i) The execution, delivery and performance of this
Agreement and the other Basic Documents to which it is a party by the Depositor
and the consummation of the transactions contemplated hereby and thereby, and
the issuance and delivery of the Certificates do not and will not conflict with
or result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Depositor is a party, by
which the Depositor is bound or to which any of the properties or assets of the
Depositor or any of its subsidiaries is subject, which breach or violation would
have a material adverse effect on the business, operations or financial
condition of the Depositor, nor will such actions result in any violation of the
provisions of the certificate of incorporation or by-laws of the Depositor or
any statute or any order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Depositor or any of its properties or
assets, which breach or violation would have a material adverse effect on the
business, operations or financial condition of the Depositor.
(j) The Depositor has no reason to believe that Deloitte
& Touche LLP are not independent public accountants with respect to the
Depositor as required by the Securities Act and the Rules and Regulations.
(k) As of the Closing Date, the Certificates will be duly
and validly authorized and, when duly and validly executed, authenticated and
delivered in accordance with the Pooling and Servicing Agreement, and delivered
to you against payment therefor as provided herein, will
4
be duly and validly issued and outstanding and entitled to the benefits of the
Pooling and Servicing Agreement. The Certificates will not be "mortgage related
securities," as such term is defined in the singular in the Exchange Act.
(l) 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 Certificates to the Underwriters, or the consummation by the
Depositor of the other transactions contemplated by this Agreement, the other
Basic Documents to which it is a party and any Subsequent Transfer Agreement,
except such consents, approvals, authorizations, registrations or qualifications
as may be required under state securities or blue sky laws in connection with
the purchase and distribution of the Certificates by the Underwriters or as have
been obtained.
(m) The Depositor possesses all material licenses,
certificates, authorities or permits issued by the appropriate state, federal or
foreign regulatory agencies or bodies necessary to conduct the business now
conducted by it and as described in the Prospectus, and the Depositor has not
received notice of any proceedings relating to the revocation or modification of
any such license, certificate, authority or permit which if decided adversely to
the Depositor would, singly or in the aggregate, materially and adversely affect
the conduct of its business, operations or financial condition.
(n) At the time of execution and delivery of the Pooling
and Servicing Agreement, the Depositor will: (i) be the sole beneficial owner of
the Mortgage Loans conveyed to it by the Unaffiliated Seller, free and clear of
any lien, mortgage, pledge, charge, encumbrance, adverse claim or other security
interest (collectively, "Liens"); (ii) not have assigned to any Person any of
its right or title in the Mortgage Loans or in the Pooling and Servicing
Agreement or in the Certificates being issued pursuant to the Pooling and
Servicing Agreement; and (iii) have the power and authority to sell its interest
in the Mortgage Loans to the Trust and to authorize the Trust to issue the
Certificates. At the time of execution and delivery of the Pooling and Servicing
Agreement, the Depositor will not have assigned to any Person any of its right
or title in the Certificates and (iv) have the power and authority to sell the
Certificates to the Underwriters. Upon execution and delivery of the Pooling and
Servicing Agreement by the Trustee, on behalf of the Trust, the Trust will have
acquired beneficial ownership of all of the Depositor's right, title and
interest in and to the Mortgage Loans. Upon delivery to the Underwriters of the
Certificates, the Underwriters will have good title to the Certificates, free
and clear of any Liens.
(o) If applicable, at the time of execution and delivery
of any Subsequent Transfer Agreement, the Depositor will: (i) be the sole
beneficial owner of the Subsequent Mortgage Loans conveyed by the Unaffiliated
Seller, free and clear of any Liens; (ii) not have assigned to any Person any of
its right or title in the Subsequent Loans, in the Pooling and Servicing
Agreement or in the Subsequent Transfer Agreement; and (iii) have the power and
authority to sell the Subsequent Mortgage Loans to the Trust. If applicable,
upon execution and delivery of each Subsequent Transfer Agreement by the
Trustee, the Trust will have acquired beneficial ownership of all of the
Depositor's right, title and interest in and to the related Subsequent Mortgage
Loans.
5
(p) As of the Cut-Off Date, each of the Mortgage Loans
will meet the eligibility criteria described in the Prospectus. At the Closing
Date, the Certificates, the Basic Documents and each of the Mortgage Loans will
conform in all material respects to the descriptions thereof contained in the
Prospectus.
(q) If applicable, as of any Subsequent Transfer Date,
each of the Subsequent Mortgage Loans will meet the eligibility criteria
described in the Prospectus and will conform in all material respects to the
descriptions thereof contained in the Prospectus.
(r) Neither the Depositor nor the Trust created by the
Pooling and Servicing Agreement is an "investment company" within the meaning of
such term under the Investment Company Act of 1940 (the "1940 Act") and the
rules and regulations of the Commission thereunder.
(s) At the Closing Date, the Certificates will have been
rated in the highest rating category by at least two nationally recognized
statistical rating organizations.
(t) Any taxes, fees and other governmental charges in
connection with the execution, delivery and issuance of this Agreement, the
other Basic Documents to which it is a party and the Securities have been paid
or will be paid at or prior to the Closing Date.
(u) At the Closing Date, each of the representations and
warranties of the Depositor set forth in the Pooling and Servicing Agreement,
the Unaffiliated Seller's Agreement and the Insurance Agreement will be true and
correct in all material respects.
Any certificate signed by an officer of the Depositor and delivered to
the Underwriters or counsel for the Underwriters in connection with an offering
of the Certificates shall be deemed to be a representation and warranty as to
the matters covered thereby to each person to whom the representations and
warranties in this Section 1 are made.
SECTION 2. Purchase and Sale. The commitment of the Underwriters
to purchase the Certificates pursuant to this Agreement shall be deemed to have
been made on the basis of the representations and warranties herein contained
and shall be subject to the terms and conditions herein set forth. The Depositor
agrees to instruct the Trustee to execute, authenticate and deliver the
Certificates and agrees to sell to the Underwriters, and the Underwriters agree
(except as provided in Section 10) to purchase from the Depositor the aggregate
principal amount of the Certificates at the purchase price or prices set forth
in Schedule A.
SECTION 3. Delivery and Payment. Delivery of and payment for the
Certificates to be purchased by the Underwriters shall be made at the offices of
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, 1301 Avenue of the Americas, New York, New York, or at
such other place as shall be agreed upon by the Representative and the Depositor
at 10:00 a.m. New York time on or about March 31, 2003 or at such other time or
date as shall be agreed upon in writing by the Representative and the Depositor
(such date being referred to as the "Closing Date"). Payment shall be made to
the Depositor by wire transfer of same day funds payable to the account of the
Depositor. Delivery of the Certificates shall be made to, or at the direction
of, the Underwriters against payment of
6
the purchase price thereof. The Certificates shall be in such authorized
denominations and registered in such names as the Representative may request in
writing at least two business days prior to the Closing Date. The Certificates
will be made available for examination by the Representative no later than 2:00
p.m. New York City time on the first business day prior to the Closing Date.
SECTION 4. Offering by the Underwriters. It is understood that,
subject to the terms and conditions hereof, the Underwriters propose to offer
the Certificates for sale to the public as set forth in the Prospectus.
SECTION 5. Covenants of the Depositor. The Depositor agrees as
follows:
(a) To prepare the Prospectus in a form approved by the
Representative and to file such Prospectus pursuant to Rule 424(b) under the
Securities Act not later than the Commission's close of business on the second
business day following the availability of the Prospectus to the Underwriters
and to make no further amendment or any supplement to the Registration Statement
or to the Prospectus prior to the Closing Date except as permitted herein; to
advise the Underwriters, promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or becomes
effective prior to the Closing Date or any supplement to the Prospectus or any
amended Prospectus has been filed prior to the Closing Date and to furnish the
Underwriters with copies thereof, to file promptly all reports and any
definitive proxy or information statements required to be filed by the Depositor
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of the Prospectus and, for so long as the
delivery of a prospectus is required in connection with the offering or sale of
the Certificates to advise the Underwriters promptly of its receipt of notice of
the issuance by the Commission of any stop order or of: (i) any order preventing
or suspending the use of any Preliminary Prospectus or the Prospectus; (ii) the
suspension of the qualification of the Certificates for offering or sale in any
jurisdiction; (iii) the initiation of or threat of any proceeding for any such
purpose; (iv) any request by the Commission for the amending or supplementing of
the Registration Statement or the Prospectus or for additional information. In
the event of the issuance of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus or suspending
any such qualification, the Depositor promptly shall use its best efforts to
obtain the withdrawal of such order by the Commission.
(b) To furnish promptly to the Underwriters and to
counsel for the Underwriters a signed copy of the Registration Statement as
originally filed with the Commission, and of each amendment thereto filed with
the Commission, including all consents and exhibits filed therewith.
(c) To deliver promptly to the Underwriters such number
of the following documents as the Underwriters shall reasonably request: (i)
conformed copies of the Registration Statement as originally filed with the
Commission and each amendment thereto (in each case including exhibits); (ii)
each Preliminary Prospectus, if any, the Prospectus and any amended or
supplemented Prospectus; and (iii) any document incorporated by reference in the
Prospectus (including exhibits thereto). If the delivery of a prospectus is
required at any time in connection
7
with the offering or sale of the Certificates, and if at such time any events
shall have occurred as a result of which the Prospectus as then amended or
supplemented would include any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it shall be necessary
during such same period to amend or supplement the Prospectus or to file under
the Exchange Act any document incorporated by reference in the Prospectus in
order to comply with the Securities Act or the Exchange Act, the Depositor shall
notify the Underwriters and, upon the request of the Representative, shall file
such document and prepare and furnish without charge to the Underwriters and to
any dealer in securities as many copies as the Underwriters may from time to
time reasonably request of an amended Prospectus or a supplement to the
Prospectus which corrects such statement or omission or effects such compliance.
(d) To file promptly with the Commission any amendment to
the Registration Statement or the Prospectus or any supplement to the Prospectus
that may, in the judgment of the Depositor or the Representative, be required by
the Securities Act or requested by the Commission.
(e) The Depositor will (i) cause any Computational
Materials or any Structural Term Sheet (each as defined below in this
subsection) with respect to the Certificates which are delivered by the
Underwriters to the Depositor to be filed with the Commission on Additional
Materials 8-K (as defined below) (A) at or before the time of filing of the
Prospectus pursuant to Rule 424(b) under the Securities Act in the case of
Computational Materials or any Structural Term Sheets provided to investors
prior to the availability of such Prospectus, and (B) within two business days
of first use in the case of Computational Materials or any Structural Term Sheet
provided to investors subsequent to the availability of, but before the sending
or giving of, such Prospectus and (ii) cause any Collateral Term Sheet (as
defined below in this subsection) with respect to the Certificates which are
delivered by the Underwriters to the Depositor to be filed with the Commission
on an Additional Materials 8-K within two business days after the date on which
the Representative advises the Depositor that such Collateral Term Sheet was
first used; provided, however, that the Depositor shall have no obligation to
file any materials which, in the reasonable determination of the Depositor after
consultation with the Representative, (x) are not required to be filed pursuant
to the ▇▇▇▇▇▇ Letters and/or the PSA Letter (each as defined below) or (y)
contain any erroneous information or untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading; it being understood, however, that the
Depositor shall have no obligation to review or pass upon the accuracy or
adequacy of, or to correct, any Computational Materials, Structural Term Sheets
or Collateral Term Sheets provided by the Underwriters to the Depositor as
aforesaid. For purposes of this subsection (e), (1) the term "Computational
Materials" shall mean those materials which constitute "computational materials"
within the meaning of the no-action letter dated May 20, 1994 issued by the
Division of Corporation Finance of the Commission to ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Acceptance
Corporation I and certain affiliates and the no-action letter dated May 27, 1994
issued by the Division of Corporation Finance of the Commission to the Public
Securities Association (together, the "▇▇▇▇▇▇ Letters") and the no-action letter
dated February 17, 1995 issued by the Division of Corporation Finance to the
Public Securities Association (the "PSA Letter") for which the filing of such
material on an Additional
8
Materials 8-K is a condition of the relief granted in such letters, (2) the
terms "Structural Term Sheet" and "Collateral Term Sheet" shall mean those
materials which constitute "structural term sheets" and "collateral term sheets"
within the meaning of the PSA Letter for which the filing of such material on an
Additional Materials 8-K is a condition of the relief granted in such letter and
(3) the term "Additional Materials 8-K" shall mean a Current Report on Form 8-K
used to file Computational Materials, Structural Term Sheets and/or Collateral
Term Sheets.
(f) To furnish the Underwriters and counsel for the
Underwriters, prior to filing with the Commission, and to obtain the consent of
the Representative for the filing of the following documents relating to the
Securities: any (i) Preliminary Prospectus, (ii) amendment to the Registration
Statement or supplement to the Prospectus, or document incorporated by reference
in the Prospectus, or (iii) Prospectus pursuant to Rule 424 of the Rules and
Regulations.
(g) To make generally available to holders of the
Certificates as soon as practicable, but in any event not later than ninety (90)
days after the close of the period covered thereby, a statement of earnings of
the Trust (which need not be audited) complying with Section 11(a) of the
Securities Act and the Rules and Regulations (including, at the option of the
Depositor, Rule 158) and covering a period of at least twelve consecutive months
beginning not later than the first day of the first fiscal quarter following the
Closing Date.
(h) To use its best efforts, in cooperation with the
Underwriters, to qualify the Certificates for offering and sale under the
applicable securities laws of such states and other jurisdictions of the United
States or elsewhere as the Representative may designate, and maintain or cause
to be maintained such qualifications in effect for as long as may be required
for the distribution of the Certificates; provided, however, that in connection
therewith, the Depositor shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction. The Depositor will file or cause the filing of such statements and
reports as may be required by the laws of each jurisdiction in which the
Certificates have been so qualified.
(i) Unless the Representative shall otherwise have given
its written consent, no pass-through certificates backed by home equity loans or
other similar securities representing interest in or secured by other
mortgage-related assets originated or owned by the Depositor or the Unaffiliated
Seller shall be publicly offered or sold nor shall the Depositor or the
Unaffiliated Seller enter into any contractual arrangements that contemplate the
public offering or sale of such securities for a period of seven business days
following the commencement of the offering of the Certificates to the public.
(j) So long as the Certificates shall be outstanding the
Depositor shall cause the Trustee, pursuant to the Pooling and Servicing
Agreement, to deliver to the Underwriters as soon as such statements are
available to be furnished: (i) the annual statement as to compliance delivered
to the Trustee pursuant to Section 5.09 of the Pooling and Servicing Agreement
and (ii) the annual statement of a firm of independent public accountants
furnished to the Trustee pursuant to Section 5.10 of the Pooling and Servicing
Agreement.
9
(k) To apply the net proceeds from the sale of the
Certificates in the manner set forth in the Prospectus.
SECTION 6. Conditions to the Underwriters' Obligations. The
obligations of the Underwriters to purchase the Certificates pursuant to this
Agreement are subject to: (a) the accuracy on and as of the Closing Date of the
representations and warranties on the part of the Depositor herein contained;
(b) the performance by the Depositor of all of its obligations hereunder; and
(c) the following conditions as of the Closing Date:
(a) The Representative shall have received confirmation
of the effectiveness of the Registration Statement. No stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have been
issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission. Any request of the Commission for inclusion of
additional information in the Registration Statement or the Prospectus shall
have been complied with.
(b) The Prospectus shall have been filed with the
Commission pursuant to Rule 424 not later than the second business day following
the date it is first used after effectiveness in connection with a public
offering or sale, or transmitted by a means reasonably calculated to result in
filing with the Commission by that date.
(c) The Representative shall not have discovered and
disclosed to the Depositor on or prior to the Closing Date that the Registration
Statement or the Prospectus or any amendment or supplement thereto contains an
untrue statement of a fact or omits to state a fact which, in the opinion of the
Representative and its counsel, is material and is required to be stated therein
or is necessary to make the statements therein not misleading.
(d) All corporate proceedings and other legal matters
relating to the authorization, form and validity of this Agreement, the other
Basic Documents, the Securities, the Registration Statement and the Prospectus,
and all other legal matters relating to this Agreement and the transactions
contemplated hereby shall be satisfactory in all respects to the Representative
and its counsel, and the Depositor shall have furnished to the Representative
and its counsel all documents and information that they may reasonably request
to enable them to pass upon such matters.
(e) Stroock & Stroock & ▇▇▇▇▇ LLP shall have furnished to
the Underwriters its written opinion, as special counsel to the Depositor,
addressed to the Underwriters and dated the Closing Date, in form and substance
satisfactory to the Representative, to the effect that:
(i) The Depositor has been duly incorporated and
is validly existing as a corporation in good standing under the laws of the
State of Delaware and has all corporate power and authority necessary to own or
hold its properties and to conduct the business in which it is engaged and to
enter into and perform its obligations under this Agreement, the Pooling and
Servicing Agreement, the Unaffiliated Seller's Agreement and the Insurance
Agreement, and to cause the Securities to be issued;
10
(ii) This Agreement, the Pooling and Servicing
Agreement, the Unaffiliated Seller's Agreement and the Insurance Agreement have
been duly authorized, executed and delivered by the Depositor and the Subsequent
Transfer Agreements, if any, have been duly authorized, and when duly executed
and delivered by the Depositor and, assuming the due authorization, execution
and delivery of such agreements by the other parties thereto, such agreements
constitute, and in the case of any Subsequent Transfer Agreement will
constitute, valid, legal and binding obligations, enforceable against the
Depositor in accordance with their respective terms, subject as to
enforceability to (A) bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to creditors' rights
generally, (B) general principles of equity (regardless of whether enforcement
is sought in a proceeding in equity or at law) and (C) with respect to rights of
indemnity under this Agreement and the Insurance Agreement, limitations of
public policy under applicable securities laws;
(iii) The execution, delivery and performance of
this Agreement, the Pooling and Servicing Agreement, the Unaffiliated Seller's
Agreement, the Insurance Agreement and each Subsequent Transfer Agreement, if
any, by the Depositor, the consummation of the transactions contemplated hereby
and thereby, and the issuance and delivery of the Securities to such counsel's
knowledge do not and will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Depositor is a party or by which the Depositor is bound
or to which any of the property or assets of the Depositor or any of its
subsidiaries is subject, which breach or violation would have a material adverse
effect on the business, operations or financial condition of the Depositor, nor
will such actions result in a violation of the provisions of the certificate of
incorporation or by-laws of the Depositor or to such counsel's knowledge any
statute or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Depositor or any of its properties or assets,
which breach or violation would have a material adverse effect on the business,
operations or financial condition of the Depositor;
(iv) The direction by the Depositor to the
Trustee to execute, authenticate and deliver the Securities has been duly
authorized by the Depositor and, assuming that the Trustee has been duly
authorized to do so, when executed, authenticated and delivered by the Trustee
in accordance with the Pooling and Servicing Agreement, the Securities will be
validly issued and outstanding and will be entitled to the benefits of the
Pooling and Servicing Agreement;
(v) No consent, approval, authorization, order,
registration or qualification with, or notice to, any court or governmental
agency or body of the United States or the State of New York is required for the
issuance of the Securities, the sale of the Certificates to the Underwriters, or
the consummation by the Depositor of the other transactions contemplated by this
Agreement, the Pooling and Servicing Agreement, the Unaffiliated Seller's
Agreement and the Insurance Agreement, except such which have been previously
obtained;
(vi) There are not, to such counsel's knowledge,
any actions, proceedings or investigations pending with respect to which the
Depositor has received service of process before, or threatened by any court,
administrative agency or other tribunal to which
11
the Depositor is a party or of which any of its properties is the subject: (a)
which, if determined adversely to the Depositor, would have a material adverse
effect on the business, results of operations or financial condition of the
Depositor, (b) which assert the invalidity of this Agreement, the Pooling and
Servicing Agreement, the Unaffiliated Seller's Agreement, the Insurance
Agreement or the Securities; (c) seeking to prevent the issuance of the
Securities or the consummation by the Depositor of any of the transactions
contemplated by the this Agreement, the Pooling and Servicing Agreement, the
Unaffiliated Seller's Agreement or the Insurance Agreement, as the case may be;
or (d) which might materially and adversely affect the performance by the
Depositor of its obligations under, or the validity or enforceability of, this
Agreement, the Pooling and Servicing Agreement, the Unaffiliated Seller's
Agreement, the Insurance Agreement or the Securities;
(vii) The statements set forth in the Prospectus
Supplement under the captions "Description of the Certificates", to the extent
such statements purport to summarize certain provisions of the Securities, the
Pooling and Servicing Agreement or the Unaffiliated Seller's Agreement, are fair
and accurate in all material respects;
(viii) The statements set forth in the Basic
Prospectus under the caption "ERISA Considerations" and in the Prospectus
Supplement under the caption "ERISA Considerations," to the extent that they
constitute matters of federal law, provide a fair and accurate summary of such
law or conclusions;
(ix) None of the Unaffiliated Seller, the
Depositor, the Trust or the Trust Estate created by the Pooling and Servicing
Agreement is required to be registered under the 1940 Act;
(x) the Pooling and Servicing Agreement is not
required to be qualified under the Trust Indenture Act;
(xi) The Registration Statement has become
effective under the Securities Act and to the best of such counsel's knowledge,
no stop order suspending the effectiveness of the Registration Statement or any
order directed to any prospectus relating to the Certificates has been issued
and not withdrawn and no proceedings for that purpose have been instituted or
threatened and not terminated; and
(xii) The Registration Statement and the
Prospectus (other than the financial and statistical data included therein, as
to which such counsel is not called upon to express any opinion), at the time
the Registration Statement became effective, as of the date of execution of this
Agreement and as of the date of the opinion, comply as to form in all material
respects with the requirements of the Securities Act and the rules and
regulations thereunder, and the Exchange 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 or the
Prospectus, which has not been filed or described as required.
12
Such counsel shall also have furnished to the Underwriters a written
statement, addressed to the Underwriters and dated the Closing Date, in form and
substance satisfactory to the Representative, to the effect that no facts have
come to the attention of such counsel which lead them to believe that: (i) the
Registration Statement, at the time such Registration Statement became
effective, contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading (except as to financial or statistical data
contained in the Registration Statement); or (ii) the Prospectus, as of its date
and as of the Closing Date, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
(f) Counsel for the Unaffiliated Seller, the Originators
and the Servicer, shall have furnished to the Underwriters a written opinion,
addressed to the Underwriters and the Depositor and dated the Closing Date, in
form and substance satisfactory to the Representative, to the effect that:
(i) Each of the Unaffiliated Seller, the
Originators and the Servicer is a corporation duly organized, subsisting and in
good standing under the corporation law of the state of its incorporation;
(ii) Each of the Originators, the Servicer and
the Unaffiliated Seller have duly authorized the execution, delivery and
performance of the Basic Documents to which it is a party and when duly
authorized, executed and delivered by the Issuer, the Trustee, the Depositor and
the Enhancer, as applicable, such agreements will constitute the valid and
legally binding agreement of each of the Originators, the Servicer and the
Unaffiliated Seller, enforceable against each of them in accordance with their
terms except to the extent that the enforceability thereof may be limited under
bankruptcy, insolvency, moratorium, reorganization or others similar laws,
judicial decisions and principles of equity relating to or affecting the
enforcement of creditors' rights or contractual obligations generally;
(iii) Neither the transfer of the Mortgage Loans
to the Depositor, nor the execution, delivery or performance by each of the
Originators, the Servicer and the Unaffiliated Seller of the Basic Documents to
which it is a party (A) conflicts or will conflict with or results or will
result in a breach of, or constitutes or will constitute a default under or
violates or will violate, (i) any term or provision of the Articles of
Incorporation or By-laws of such party; (ii) to such counsel's knowledge and in
reliance on the officer's certificates of the Originators, the Servicer and the
Unaffiliated Seller, any term or provision of any material agreement, contract,
instrument or indenture, to which such party or any of its subsidiaries is a
party or is bound; or (iii) to such counsel's knowledge and in reliance on the
certificates of the Originators, the Servicer and the Unaffiliated Seller, any
order, judgment, writ, injunction or decree of any court or governmental agency
or body or other tribunal having jurisdiction over such party or any of its
properties; or (B) results in, or will result in the creation or imposition of
any lien, charge or encumbrance upon the Trust Estate or upon the Certificates,
except as otherwise contemplated by the Basic Documents to which it is a party;
13
(iv) The endorsement and delivery of each
Mortgage Note, and the preparation, delivery and recording of an Assignment of
Mortgage with respect to each Mortgage is sufficient fully to transfer to the
Depositor and its assignees all right, title and interest of the Originators and
the Servicer, as applicable, in the Mortgage Note and Mortgage, as noteholder
and mortgagee or assignee thereof;
(v) No consent, approval, authorization or order
of, registration or qualification of or with or notice to, any court,
governmental agency or body or other tribunal is required under the laws of
Pennsylvania, for the execution, delivery and performance by each of the
Originators, the Servicer and the Unaffiliated Seller of the Basic Documents to
which it is a party or the consummation of any other transaction contemplated
thereby by the Originators, the Servicer and the Unaffiliated Seller, except
such which have been obtained; and
(vi) To the knowledge of such counsel and in
reliance on the certificate of the Originators, the Servicer and the
Unaffiliated Seller there are no legal or governmental suits, proceedings or
investigations pending or threatened against the Originators, the Servicer and
the Unaffiliated Seller before any court, governmental agency or body or other
tribunal (A) which, if determined adversely to the Originators, the Servicer or
the Unaffiliated Seller, would individually or in the aggregate have a material
adverse effect on (i) the consolidated financial position, business prospects,
stockholders' equity or results of operations of such party; (ii) such party's
ability to perform its obligations under, or the validity or enforceability of
the Basic Documents to which the Originators, the Servicer and the Unaffiliated
Seller is a party; (iii) any Mortgage Note or Mortgaged Property, or the title
of any Mortgagor to any Mortgaged Property; or (B) which have not otherwise been
disclosed in the Basic Documents or the Registration Statement and to the best
of such counsel's knowledge, no such proceedings or investigations are
threatened or contemplated by governmental authorities or threatened by others.
(g) The Underwriters shall have received the favorable
opinion of counsel to the Trustee, dated the Closing Date, addressed to the
Underwriters and in form and scope satisfactory to the Representative and
counsel to the Representative, to the effect that:
(i) The Trustee is a banking corporation validly
existing under the laws of the State of New York and has the power and authority
to enter into, and to take all action required of it under, the Pooling and
Servicing Agreement;
(ii) The Pooling and Servicing Agreement has been
duly authorized, executed and delivered by the Trustee and, assuming due
authorization, execution and delivery thereof by the other parties thereto,
constitutes a valid and binding obligation of the Trustee, enforceable against
the Trustee in accordance with its terms, subject, as to enforceability, to
limitations of bankruptcy, insolvency, moratorium, fraudulent conveyance and
other laws relating to or affecting creditors' rights generally and court
decisions with respect thereto, and to general principles of equity;
(iii) The Certificates have been duly executed by
the Trustee and authenticated and delivered by the Trustee in accordance with
the terms of the Pooling and Servicing Agreement;
14
(iv) The execution and delivery by the Trustee of
the Pooling and Servicing Agreement and the performance by the Trustee of the
terms thereof do not conflict with or result in a violation of (A) any law or
regulation of the State of New York governing the banking or trust powers of the
Trustee or (B) the charter or by-laws of the Trustee; and
(v) No approval, authorization, or other action
by, or filing with, any governmental authority having jurisdiction over the
banking or trust powers of the Trustee is required in connection with the
execution and delivery by the Trustee of the Pooling and Servicing Agreement or
the Insurance Agreement or the performance by the Trustee of the transactions
contemplated thereby.
(h) The Underwriters shall have received the favorable
opinion or opinions, dated the date of the Closing, of Stroock & Stroock & ▇▇▇▇▇
LLP, as counsel for the Underwriters, with respect to the issue and sale of the
Certificates, the Registration Statement, this Agreement, the Prospectus and
such other related matters as the Underwriters may reasonably require.
(i) The Underwriters shall have received the favorable
opinion or opinions, dated the date of the Closing Date, of counsel to the
Trustee with respect to the issuance of the Certificates and such other matters
as the Underwriters may reasonably require.
(j) The Underwriters shall have received the favorable
opinion dated the Closing Date, from counsel to the Enhancer in form and scope
satisfactory to the Representative and counsel to the Representative, to the
effect that:
(i) The Enhancer is a corporation validly
existing, in good standing and licensed to transact the business of surety and
financial guaranty insurance under the laws of its State of incorporation;
(ii) The Enhancer has the corporate power to
execute and deliver, and to take all action required of it, under the Policy,
the Indemnification Agreement and the Insurance Agreement;
(iii) Except as have already been obtained, no
authorization, consent, approval, license, formal exemption, or declaration
from, nor any registration or filing with, any court or governmental agency or
body of the United States of America or its State of incorporation, which if not
obtained would affect or impair the validity or enforceability of the Policy,
the Indemnification Agreement or the Insurance Agreement against the Enhancer,
is required in connection with the execution and delivery by the Enhancer of the
Policy, the Indemnification Agreement or the Insurance Agreement, or in
connection with the Enhancer's performance of its obligations thereunder;
(iv) The Policy, the Insurance Agreement and the
Indemnification Agreement have been duly authorized, executed and delivered by
the Enhancer and the Policy and, assuming due authorization, execution and
delivery of the Insurance Agreement and the Indemnification Agreement by the
parties thereto (other than the Enhancer), the Insurance
15
Agreement and the Indemnification Agreement constitute the legally valid and
binding obligations of the Enhancer, enforceable in accordance with their
respective terms, subject, as to enforcement, to (a) bankruptcy, reorganization,
insolvency, moratorium and other similar laws relating to or affecting the
enforcement of creditors' rights generally, including, without limitation, laws
relating to fraudulent transfers or conveyances, preferential transfers and
equitable subordination, presently or from time to time in effect and general
principles of equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law), as such laws may be applied in any such
proceeding with respect to the Enhancer, (b) the qualification that the remedy
of specific performance may be subject to equitable defenses and the discretion
of the court before which any proceedings with respect thereto may be brought,
and (c) the enforceability of rights to indemnification may be subject to
limitations of public policy under applicable securities law; and
(v) To the extent the Policy constitutes a
security within the meaning of Section 2(1) of the Securities Act, it is a
security that is exempt from the registration requirements of the Act.
(k) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP shall have furnished to the
Underwriters its written statement, addressed to the Underwriters and dated the
Closing Date, in form and substance satisfactory to the Representative, to the
effect that no facts have come to the attention of such counsel which lead them
to believe that the Prospectus, as of its date and as of the Closing Date,
contained or contains an untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
(l) The Underwriters shall have received the favorable
opinion dated the Closing Date, from Stroock & Stroock & ▇▇▇▇▇ LLP in form and
scope satisfactory to the Representative, to the effect that the statements set
forth in the Basic Prospectus under the caption "Material Federal Income Tax
Considerations" and in the Prospectus Supplement under the caption "Material
Federal Income Tax Consequences," to the extent that they constitute matters of
federal law, provide a fair and accurate summary of such law or conclusions.
(m) The Underwriters shall have received the favorable
opinion dated the Closing Date, from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP with respect to
certain matters relating to the transfer of the Mortgage Loans from the
Originators to the Depositor and from the Depositor to the Trustee, and such
counsel shall have consented to reliance on such opinion by S&P, Fitch and
▇▇▇▇▇'▇ as though such opinion had been addressed to them.
(n) The Depositor shall have furnished to the
Underwriters a certificate, dated the Closing Date and signed by the Chairman of
the Board, the President or a Vice President of the Depositor, stating as it
relates to such entity:
(i) The representations and warranties made by
the Depositor in this Agreement, the Pooling and Servicing Agreement (excluding
the representations and warranties relating to the Mortgage Loans), the
Unaffiliated Seller's Agreement and the Insurance Agreement are true and correct
as of the Closing Date; and the Depositor has complied with all
16
agreements contained herein which are to have been complied with on or prior to
the Closing Date;
(ii) Nothing has come to his or her attention
that would lead such officer to believe that the Registration Statement or the
Prospectus includes any untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein not misleading;
(iii) There has been no amendment or other
document filed affecting the Certificate of Incorporation or by-laws of the
Depositor since June 2, 1995 and no such amendment has been authorized. No event
has occurred since March 24, 2003 which has affected the good standing of such
entity under the laws of the State of Delaware; and
(iv) There has not occurred any material adverse
change, or any development involving a prospective material adverse change, in
the condition, financial or otherwise, or in the earnings, business or
operations of such entity from December 31, 2002.
(o) Each of the Originators, the Servicer and the
Unaffiliated Seller shall have furnished a certificate, dated the Closing Date,
signed by the Chairman of the Board, the President or a Vice President of such
entity and addressed to the Underwriters in form in substance reasonably
satisfactory to the Representative, with respect to incorporation of such
entity, the representations and warranties made by such entity in certain Basic
Documents, and as to such other matters as the Underwriters may reasonably
request.
(p) The Trustee shall have furnished to the Underwriters
a certificate of the Trustee, signed by one or more duly authorized officers of
the Trustee, dated the Closing Date, as to the due authorization, execution and
delivery of the Pooling and Servicing Agreement by the Trustee, and the
acceptance by the Trustee of the trusts created thereby and the due execution,
authentication and delivery of the Securities by the Trustee thereunder and such
other matters as the Underwriters shall reasonably request.
(q) The Policy and the Insurance Agreement shall have
been issued by the Enhancer and shall have been duly authenticated by an
authorized agent of the Enhancer, if so required under applicable state law or
regulations.
(r) The Class A Certificates shall have been rated "AAA"
by S&P, "Aaa" by ▇▇▇▇▇'▇ and "AAA" by Fitch; the Class M Certificates shall have
been rated "AA" by Fitch and "AA" by S&P; and the Class A-IO Certificates shall
have been rated "AAA" by S&P, "Aaa" by ▇▇▇▇▇'▇ and "AAA" by Fitch.
(s) The Depositor shall have furnished to the
Underwriters such further information, Securities and documents as the
Underwriters may reasonably have requested not less than three full business
days prior to the Closing Date.
(t) Prior to the Closing Date, counsel for the
Underwriters shall have been furnished with such documents and opinions as they
may reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Securities as herein contemplated and
17
related proceedings or in order to evidence the accuracy and completeness of any
of the representations and warranties, or the fulfillment of any of the
conditions, herein contained, and all proceedings taken by the Depositor in
connection with the issuance and sale of the Certificates as herein contemplated
shall be satisfactory in form and substance to the Representative and counsel
for the Representative.
(u) Subsequent to the execution and delivery of this
Agreement none of the following shall have occurred: (A) trading in securities
generally on the New York Stock Exchange, the American Stock Exchange or the
over-the-counter market shall have been suspended or minimum prices shall have
been established on either of such exchanges or such market by the Commission,
by such exchange or by any other regulatory body or governmental authority
having jurisdiction; (B) a banking moratorium shall have been declared by
federal or state authorities; (C) the United States shall have become engaged in
hostilities, there shall have been an escalation of hostilities involving the
United States or there shall have been a declaration of a national emergency or
war by the United States; or (D) there shall have occurred such a material
adverse change in general economic, political or financial conditions (or the
effect of international conditions on the financial markets of the United States
shall be such) as to make it in each of the instances set forth in clauses (A)
through (D) herein, in the judgment of the Representative, impractical or
inadvisable to proceed with the public offering or delivery of the Certificates
on the terms and in the manner contemplated in the Prospectus.
(v) The Underwriters shall have received from Deloitte &
Touche LLP, a letter dated the date hereof and satisfactory in form and
substance to the Representative and its counsel, to the effect that they have
performed certain specified procedures, all of which have been agreed to by the
Representative, as a result of which they determined that certain information of
an accounting, financial or statistical nature set forth in the Prospectus
Supplement agrees with the records of the Seller and the Servicer excluding any
questions of legal interpretation. The Underwriters shall have received from
Deloitte & Touche, LLP, a letter dated the Closing Date and satisfactory in form
and substance to the Representative and its counsel, confirming as of such date
the information set forth in the letter provided pursuant to this clause (v).
(w) The Underwriters shall have received from Deloitte &
Touche LLP, certified public accountants, a letter dated the date hereof and
satisfactory in form and substance to the Representative and its counsel, to the
effect that they have performed certain specified procedures and recomputations
as a result of which they have confirmed the information set forth in the
Prospectus Supplement in the table or tables entitled "Weighted Average Lives".
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Underwriters by notice to the Depositor at any time at or prior to the
Closing Date, and such termination shall be without liability of any party to
any other party except as provided in Section 7.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
18
SECTION 7. Payment of Expenses. The Depositor agrees to pay: (a)
the costs incident to the authorization, issuance, sale and delivery of the
Securities and any taxes payable in connection therewith; (b) the costs incident
to the preparation, printing and filing under the Securities Act of the
Registration Statement and any amendments and exhibits thereto; (c) the costs of
distributing the Registration Statement as originally filed and each amendment
thereto and any post-effective amendments thereof (including, in each case,
exhibits), the Preliminary Prospectus, if any, the Prospectus and any amendment
or supplement to the Prospectus or any document incorporated by reference
therein, all as provided in this Agreement; (d) the costs of reproducing and
distributing this Agreement; (e) the fees and expenses of qualifying the
Securities under the securities laws of the several jurisdictions as provided in
Section 5(h) hereof and of preparing, printing and distributing a Blue Sky
Memorandum and a Legal Investment Survey (including related fees and expenses of
counsel to the Underwriters); (f) any fees charged by securities rating services
for rating the Certificates; and (g) all other costs and expenses incident to
the performance of the obligations of the Depositor (including costs and
expenses of your counsel); provided that, except as provided in this Section 7,
the Underwriters shall pay their own costs and expenses, including the costs and
expenses of its counsel, any transfer taxes on the Certificates that they may
sell and the expenses of advertising any offering of the Certificates made by
the Underwriters, and the Underwriters shall pay the cost of any accountants'
comfort letters relating to any Computational Materials, Structural Term Sheets
or Collateral Term Sheets (each as defined in Section 5(e) hereof).
If this Agreement is terminated by the Underwriters in accordance with
the provisions of Section 6 or Section 10, the Depositor shall cause the
Underwriters to be reimbursed for all reasonable out-of-pocket expenses,
including fees and disbursements of Stroock & Stroock & ▇▇▇▇▇ LLP, counsel for
the Underwriters.
SECTION 8. Indemnification and Contribution.
(a) The Depositor agrees to indemnify and hold harmless
the Underwriters and each person, if any, who controls an Underwriter within the
meaning of Section 15 of the Securities Act from and against any and all loss,
claim, damage or liability, or any action in respect thereof (including, but not
limited to, any loss, claim, damage, liability or action relating to purchases
and sales of the Certificates), to which the Underwriters or any such
controlling persons may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, or any amendment thereof or
supplement thereto, (ii) the omission or alleged omission to state in the
Registration Statement or any amendment thereof or supplement thereto a material
fact required to be stated therein or necessary to make the statements therein
not misleading, (iii) any untrue statement or alleged untrue statement of a
material fact contained in the Prospectus, or any amendment thereof or
supplement thereto, or (iv) the omission or alleged omission to state in the
Prospectus or any amendment thereof or supplement thereto a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading and
shall reimburse the Underwriters and each such controlling person promptly upon
demand for any legal or other expenses reasonably incurred by the Underwriters
or such controlling persons in connection with investigating or defending or
preparing to defend
19
against any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Depositor shall not be liable in any such
case to the extent that any such loss, claim, damage, liability or action arises
out of, or is based upon, any untrue statement or alleged untrue statement or
omission or alleged omission made in the Prospectus, or any amendment thereof or
supplement thereto, or the Registration Statement, or any amendment thereof or
supplement thereto, in reliance upon and in conformity with (i) written
information furnished to the Depositor by or on behalf of any Underwriter
through the Representative specifically for inclusion therein, it being
understood that the only information furnished by the Underwriters or on behalf
of the Underwriters for use in connection with the preparation of the
Registration Statement or the Prospectus is described in Section 8(h) hereof,
(ii) Seller-Provided Information or (iii) Enhancer-Provided Information; and
provided further, however, that the Depositor will 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 in or omission
or alleged omission from any Preliminary Prospectus that was eliminated or
remedied in the Prospectus, if a copy of the Prospectus was not sent or given
with or prior to the written confirmation of the sale of any Security to the
person asserting the loss, claim, damage or liability, if required by the Act.
The foregoing indemnity agreement is in addition to any liability which the
Depositor may otherwise have to the Underwriters or any controlling person of an
Underwriter.
(b) Each Underwriter agrees, severally and not jointly,
to indemnify and hold harmless the Depositor, each of its directors, each of the
officers of the Depositor who signed the Registration Statement, and each
person, if any, who controls the Depositor within the meaning of Section 15 of
the Securities Act against any and all loss, claim, damage or liability, or any
action in respect thereof, to which the Depositor or any such director, officer
or controlling person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, or any amendment thereof or
supplement thereto, (ii) the omission or alleged omission to state in the
Registration Statement or any amendment thereof or supplement thereto a material
fact required to be stated therein or necessary to make the statements therein
not misleading, (iii) any untrue statement or alleged untrue statement of a
material fact contained in the Prospectus, or any amendment thereof or
supplement thereto, or (iv) the omission or alleged omission to state in the
Prospectus, or any amendment thereof or supplement thereto a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading, but
in each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Depositor by or on behalf
of any Underwriter through the Representative specifically for inclusion
therein, and shall reimburse the Depositor and any such director, officer or
controlling person for any legal or other expenses reasonably incurred by the
Depositor or any director, officer or controlling person in connection with
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred. The foregoing
indemnity agreement is in addition to any liability which the Underwriters may
otherwise have to the Depositor or any such director, officer or controlling
person. The only information furnished by the Underwriters or on behalf of the
Underwriters for use in connection with the preparation of the Registration
Statement or the Prospectus is described in Section 8(h) hereof.
20
(c) Promptly after receipt by any indemnified party under
this Section 8 of notice of any claim or the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against any
indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section 8 except to the extent it has
been materially prejudiced by such failure and, provided further, that the
failure to notify any indemnifying party shall not relieve it from any liability
which it may have to any indemnified party otherwise than under this Section 8.
If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume
the defense thereof with counsel reasonably satisfactory to the indemnified
party. After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, except to the extent
provided in the next following paragraph, the indemnifying party shall not be
liable to the indemnified party under this Section 8 for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation.
Any indemnified party shall have the right to employ separate counsel
in any such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless: (i) the employment thereof has been specifically authorized by the
indemnifying party in writing; (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party and in the reasonable judgment of such counsel it is
advisable for such indemnified party to employ separate counsel; or (iii) the
indemnifying party has failed to assume the defense of such action and employ
counsel reasonably satisfactory to the indemnified party, in which case, if such
indemnified party notifies the indemnifying party in writing that it elects to
employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such action
on behalf of such indemnified party, it being understood, however, the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to one local counsel per jurisdiction) at any time for all such
indemnified parties, which firm shall be designated in writing by the
Representative, if the indemnified parties under this Section 8 consist of the
Underwriters or any of its controlling persons, or the Depositor, if the
indemnified parties under this Section 8 consist of the Depositor or any of the
Depositor's directors, officers or controlling persons.
Each indemnified party, as a condition of the indemnity agreements
contained in Section 8(a) and (b), shall use its best efforts to cooperate with
the indemnifying party in the defense of any such action or claim. No
indemnifying party shall be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a final
judgment for the plaintiff in any such
21
action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
Notwithstanding the foregoing paragraph, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement.
(d) The Underwriters agree to provide the Depositor, with
a copy to the Unaffiliated Seller, for filing with the Commission on an
Additional Materials 8-K (1) no later than two (2) Business Days prior to the
day on which the Prospectus Supplement is required to be filed pursuant to Rule
424 with a copy of any Computational Materials and Structural Term Sheets (each
as defined in Section 5(e) hereof) distributed by the Underwriters and (ii) no
later than one (1) business day after first use with a copy of any Collateral
Term Sheets (as defined in Section 5(e) hereof) distributed by the Underwriters.
If the Underwriters do not provide any Computational Materials, Structural Term
Sheets and Collateral Term Sheets to the Depositor and the Unaffiliated Seller
pursuant to this Section, the Underwriters shall be deemed to have represented,
as of the Closing Date, that they did not provide any prospective investors with
any information in written or electronic form in connection with the offering of
the Certificates that is required to be filed with the Commission in accordance
with the ▇▇▇▇▇▇ Letters and the PSA Letter.
(e) The Underwriters agree, assuming all Seller-Provided
Information (as defined in Section 8(g)) and information contained in the
Prospectus (without taking into account information incorporated therein by
reference through an Additional Materials 8-K) are accurate and complete in all
material respects, to indemnify and hold harmless the Depositor each of the its
officers and directors and each person who controls the Depositor within the
meaning of Section 15 of the Securities Act against any and all losses, claims,
damages or liabilities, joint or several, or any action in respect thereof, 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 or alleged untrue statement
of a material fact contained in the Computational Materials, Structural Term
Sheets and Collateral Term Sheets provided by the Underwriters or 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
each such indemnified party for any legal or other expenses reasonably incurred
by him, her or it in connection with investigating or defending or preparing to
defend any such loss, claim, damage, liability or action as such expenses are
incurred. The obligations of the Underwriters under this Section 8(e) shall be
in addition to any liability which the Underwriters may otherwise have.
The procedures set forth in Section 8(c) shall be equally applicable to
this paragraph.
22
(f) If the indemnification provided for in this Section 8
shall for any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 8(a), (b) or (e) in respect of any loss, claim,
damage or liability, or any action in respect thereof, referred to therein, then
each indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Depositor on the one hand and the Underwriters on the other from
the offering of the related Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law or if the indemnified party
failed to give the notice required under Section 8(c), in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Depositor on the one hand and the
Underwriters on the other with respect to the statements or omissions which
resulted in such loss, claim, damage or liability, or action in respect thereof,
as well as any other relevant equitable considerations.
The relative benefits of the Underwriters and the Depositor shall be
deemed to be in such proportion as the total net proceeds from the offering
(before deducting expenses) received by the Depositor bear to the total
underwriting discounts and commissions received by the related Underwriters from
time to time in negotiated sales of the related Securities.
The relative fault of the Underwriters and the Depositor shall be
determined by reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Depositor or by the Underwriters, the intent of
the parties and their relative knowledge, access to information and opportunity
to correct or prevent such statement or omission and other equitable
considerations.
The Depositor and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this paragraph were to be determined by
pro rata allocation or by any other method of allocation which does not take
into account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party is a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in this paragraph
shall be deemed to include, for purposes of this paragraph, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim.
For purposes of this Section, in no case shall the Underwriters be
responsible for any amount in excess of (i) the amount received by the
Underwriters in connection with their resale of the Certificates over (ii) the
amount paid by the Underwriters to the Depositor for the Certificates by the
Underwriters hereunder. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(g) For purposes of this Section (except as otherwise
provided) the terms "Computational Materials", "Structural Term Sheets" and
"Collateral Term Sheets" mean such portion, if any, of the information delivered
to the Depositor by the Underwriters pursuant to Section 8(d) for filing with
the Commission on an Additional Materials 8-K as:
23
(i) is not contained in the Prospectus without
taking into account information incorporated therein by reference through an
Additional Materials 8-K; and
(ii) does not constitute Seller-Provided
Information.
"Seller-Provided Information" means (i) the information and data set
forth on any computer tape (or other electronic or printed medium) furnished to
the Underwriters by or on behalf of the Originators concerning the assets
comprising the Trust Estate and (ii) the information contained in the Prospectus
Supplement under the captions "Summary - The Mortgage Loans," "The Mortgage Loan
Pools," "The Originators, the Seller and the Servicer," "Description of the
Certificates - Representations and Warranties of the Seller" and "Servicing of
the Mortgage Loans".
"Enhancer-Provided Information" means the information contained in the
Prospectus Supplement under the captions "The Policy" and "The Certificate
Insurer."
(h) The Underwriters confirm that the information set
forth in the last paragraph of the cover page of the Prospectus Supplement, the
information regarding the Underwriters set forth under the caption "Plan of
Distribution" in the Prospectus Supplement and the Computational Materials,
Structural Term Sheets and Collateral Term Sheets (excluding in each case
Seller-Provided information) are correct, and the parties hereto acknowledge
that such information constitutes the only information furnished in writing by
or on behalf of the Underwriters for use in connection with the preparation of
the Registration Statement or the Prospectus.
SECTION 9. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or contained in certificates of officers of the Depositor submitted
pursuant hereto shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of the Underwriters or controlling
persons thereof, or by or on behalf of the Depositor and shall survive delivery
of any Certificates to the Underwriters.
SECTION 10. Termination of Agreement. The Underwriters may
terminate this Agreement immediately upon notice to the Depositor, at any time
at or prior to the Closing Date if any of the events or conditions described in
Section 6(u) of this Agreement shall occur and be continuing. In the event of
any such termination, the covenant set forth in Section 5(e), the provisions of
Section 7, the indemnity agreement set forth in Section 8, and the provisions of
Sections 9 and 14 shall remain in effect.
SECTION 11. Default by One or More Underwriters. If one of the
Underwriters shall fail at the Closing Date to purchase the Certificates that it
is obligated to purchase hereunder (the "Defaulted Certificates"), then the
non-defaulting Underwriter shall have the right, but not the obligation, within
24 hours thereafter, to make arrangements to purchase all, but not less than
all, of the Defaulted Certificates in such amounts as may be agreed upon and
upon the terms herein set forth. If; however, the non-defaulting Underwriter has
not completed such arrangements within such 24-hour period, then:
24
(a) if the aggregate principal amount of Defaulted
Certificates does not exceed 10% of the aggregate principal amount of the
Certificates to be purchased pursuant to this Agreement, the non-defaulting
Underwriter shall be obligated to purchase the full amount thereof, or
(b) if the aggregate principal amount of Defaulted
Certificates exceeds 10% of the aggregate principal amount of the Certificates
to be purchased pursuant to this Agreement, this Agreement shall terminate,
without any liability on the part of the non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability with respect to any default of such Underwriter under
this Agreement.
In the event of a default by an Underwriter as set forth in this
Section that does not result in a termination of this Agreement, either the
non-defaulting Underwriter or the Depositor shall have the right to postpone the
Closing Date for a period of time not exceeding seven days in order that any
required changes in the Registration Statement or Prospectus or in any other
documents or arrangements may be effected.
SECTION 12. Notices. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by
mail, telex or facsimile transmission to the Representative, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Asset Backed Securities Group
(Fax: ▇▇▇-▇▇▇-▇▇▇▇);
(b) if to the Depositor, shall be delivered or sent by
mail, telex or facsimile transmission to care of Bear ▇▇▇▇▇▇▇ Asset Backed
Securities, Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Chief Counsel (Fax: ▇▇▇-▇▇▇-▇▇▇▇); and
(c) if to the Unaffiliated Seller, shall be delivered or
sent by mail, telex or facsimile transmission to ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇, Executive Vice President (with a copy
to the Servicer c/o American Business Financial Services, Inc., ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: General Counsel).
SECTION 13. Persons Entitled to the Benefit of this Agreement.
This Agreement shall inure to the benefit of and be binding upon the
Underwriters and the Depositor and their respective successors. This Agreement
and the terms and provisions hereof are for the sole benefit of only those
persons, except that the representations, warranties, indemnities and agreements
contained in this Agreement shall also be deemed to be for the benefit of the
person or persons, if any, who control the Underwriters within the meaning of
Section 15 of the Securities Act, and for the benefit of directors of the
Depositor, officers of the Depositor who have signed the Registration Statement
and any person controlling the Depositor within the meaning of Section 15 of the
Securities Act. Nothing in this Agreement is intended or shall be construed to
give any person, other than the persons referred to in this Section 13, any
legal or
25
equitable right, remedy or claim under or in respect of this Agreement or any
provision contained herein.
SECTION 14. Survival. The respective indemnities,
representations, warranties and agreements of the Depositor and the Underwriters
contained in this Agreement, or made by or on behalf of them, respectively,
pursuant to the shall survive the delivery of and payment for the Securities and
shall remain in full force and effect, regardless of any investigation made by
or on behalf of any of them or any person controlling any of them.
SECTION 15. Definition of the Term "Business Day". For purposes
of this Agreement, "Business Day" means any day on which the New York Stock
Exchange is open for trading.
SECTION 16. Governing Law; Submission to Jurisdiction. This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York without giving effect to the conflict of law rules thereof.
The parties hereto hereby submit to the jurisdiction of the United
States District Court for the Southern District of New York and any court in the
State of New York located in the City and County of New York, and appellate
court from any thereof, in any action, suit or proceeding brought against it or
in connection with this Agreement or any of the related documents or the
transactions contemplated hereunder or for recognition or enforcement of any
judgment, and the parties hereto hereby agree that all claims in respect of any
such action or proceeding may be heard or determined in New York State court or,
to the extent permitted by law, in such federal court.
SECTION 17. Counterparts. This Agreement may be executed in
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
SECTION 18. Headings. The headings herein are inserted for
convenience of reference only and are not intended to be part of, or to affect
the meaning or interpretation of, this Agreement.
26
* * *
If the foregoing correctly sets forth the agreement between the
Depositor and the Underwriters, please indicate your acceptance in the space
provided for the purpose below.
Very truly yours,
BEAR ▇▇▇▇▇▇▇ ASSET BACKED
SECURITIES, INC.,
Depositor
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Senior Managing Director
CONFIRMED AND ACCEPTED, as
of the date first above written:
BEAR, ▇▇▇▇▇▇▇ & CO. INC.,
as Representative of the Underwriters
named in Schedule A hereto
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Senior Managing Director
SCHEDULE A
Principal Amount of Certificates
-----------------------------------------------------------------------------------------------------
Underwriter Class Purchased Purchase Price
-----------------------------------------------------------------------------------------------------
Bear, ▇▇▇▇▇▇▇ & Co. Inc. Class A $348,300,000 99.73850%
-----------------------------------------------------------------------------------------------------
Class M $63,000,000 99.44286
-----------------------------------------------------------------------------------------------------
Class A-IO (1) 7.02088%
-----------------------------------------------------------------------------------------------------
(1) The Class A-IO Certificates will be interest-only Certificates.
Interest will accrue on a notional balance of $118,125,000.
-----------------------------------------------------------------------------------------------------
Underwriter Class Purchased Purchase Price
-----------------------------------------------------------------------------------------------------
CS First Boston Class A $38,700,000 99.73850%
-----------------------------------------------------------------------------------------------------