Exhibit 10.98
EXECUTION COPY
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Credit Suisse First Boston Mortgage Securities Corp.
(Depositor)
$376,200,000
ABFS MORTGAGE LOAN TRUST 2002-4
Mortgage Pass-Through Certificates
Series 2002-4
INDEMNIFICATION AGREEMENT
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December 18, 2002
Credit Suisse First Boston Mortgage Securities Corp.
Eleven Madison Avenue, 4th Floor
New York, New York 10010
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Credit Suisse First Boston Corporation,
for itself and as Representative for the Underwriters
Eleven Madison Avenue, 4th Floor
New York, New York 10010
Attention: Transactions Advisory Group
Ladies and Gentlemen:
1. Introductory. Credit Suisse First Boston Mortgage
Securities Corp., a corporation organized and existing under the laws
of the State of Delaware (the "Depositor"), proposes to sell to the
Underwriters (as defined below) five (5) classes of Mortgage
Pass-Through Certificates, Series 2002-4. Such classes have been
designated as the Class A, Class A-IO, Class M-1, Class M-2 and Class B
Certificates (collectively, the "Offered Certificates"). Two classes of
certificates (Class X and Class R) (the "Non-Offered Certificates" and,
together with the Offered Certificates, the "Certificates") will also
be issued but not offered for sale. Only the Offered Certificates are
being purchased by the Underwriters. The Offered Certificates and the
Non-Offered Certificates will represent the entire beneficial ownership
interest in the ABFS Mortgage Loan Trust 2002-4 (the "Trust"). The
assets of the Trust will consist primarily of a pool of certain home
equity loans (the "Mortgage Loans") conveyed to the Trust by the
Depositor pursuant to a Pooling and Servicing Agreement, dated as of
December 1, 2002 (the "Pooling and Servicing Agreement"), among the
Depositor, American Business Credit, Inc., as servicer ("ABC") and
JPMorgan Chase Bank, as trustee, back-up servicer and custodian (the
"Trustee"), with an aggregate principal balance expected to be
approximately $376,200,000 as of December 23, 2002 (the "Closing
Date"). The Mortgage Loans and other property conveyed by the Depositor
to the Trust will first be transferred to the Depositor by ABFS 2002-4,
Inc. a Delaware corporation (the "Seller") pursuant to the Unaffiliated
Seller's Agreement, dated as of December 1, 2002 (the "Unaffiliated
Seller's Agreement"), among the Depositor, the Seller, ABC, American
Business Mortgage Services Inc. ("ABMS") and HomeAmerican Credit Inc.
d/b/a Upland Mortgage ("Upland" and, together with ABC and ABMS, the
"Originators" and, together with the Seller, the "ABFS Entities").
The Mortgage Loans and other property to be sold by the Seller to the
Depositor will be purchased by the Seller from the Originators pursuant to the
Unaffiliated Seller's Agreement.
The Certificates are to be issued pursuant to the Pooling and Servicing
Agreement, and are more fully described in the Prospectus Supplement, dated as
of December 18, 2002 relating to the Offered Certificates (together with the
Prospectus attached thereto, the "Prospectus"), which the Depositor has
furnished to the Underwriters. The Depositor will elect to treat the Trust as
one or more "real estate mortgage investment conduits" under the Internal
Revenue Code of 1986, as amended.
The Depositor on the date hereof will enter into an underwriting
agreement dated the date hereof (the "Underwriting Agreement") with Credit
Suisse First Boston Corporation as representative (the "Representative") for
itself and the several underwriters listed on Schedule A thereto (the
"Underwriters") relating to the sale of the Offered Certificates.
The Pooling and Servicing Agreement, the Unaffiliated Seller's
Agreement, and the Underwriting Agreement shall be collectively defined herein
as the "Basic Documents."
Capitalized terms used herein and not otherwise defined shall have the
meanings given them in the Underwriting Agreement.
2. Representations and Warranties of the ABFS Entities. Each
of the ABFS Entities represents and warrants to, and agrees with, each
of the Depositor and the Underwriters that:
(a) The Seller has been duly organized and is validly existing
as a corporation in good standing under the laws of the State of
Delaware and each of the Originators has been duly organized and is
validly existing as a corporation in good standing under the laws of
the state of its incorporation. Each of the ABFS Entities (i) has
corporate power and authority to own, lease and operate its respective
properties and conduct its respective businesses as described or
incorporated in the Prospectus and to enter into and perform its
obligations under each of the Basic Documents to which it is a party;
and (ii) is duly qualified to do business as a foreign corporation and
is in good standing in each jurisdiction in which the character of the
business transacted by it or properties owned or leased by it requires
such qualification and in which the failure so to qualify is reasonably
likely to have a material adverse effect on its respective business,
properties, assets, or condition (financial or other) or on its ability
to perform its obligations under any of the Basic Documents to which it
is a party;
(b) None of the ABFS Entities is in violation of its
respective certificate of incorporation, certificate of formation,
articles of association, by-laws, operating agreements or other
constituent agreements, 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 any of the ABFS Entities is a party or by
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which each or any of the ABFS Entities' properties may be bound, which
default is reasonably likely to result in any material adverse change
in the financial condition, earnings, affairs or business of any of the
ABFS Entities or which is reasonably likely to materially and adversely
affect the properties or assets of any of the ABFS Entities or the
ability of any of the ABFS Entities to perform its obligations under
any of the Basic Documents to which it is a party;
(c) The execution and delivery by the ABFS Entities on the
date hereof of this Agreement and by each ABFS Entity on the Closing
Date of the Basic Documents to which it is a party, and the performance
of each of their respective obligations hereunder or thereunder, will
be within the corporate power of each of the ABFS Entities and duly
authorized by all necessary corporate action on the part of each of the
ABFS Entities on and as of the date hereof with respect to this
Agreement or on and as of the Closing Date with respect to the Basic
Documents; and neither the issuance and sale of the Offered
Certificates to the Underwriters, nor the execution and delivery by any
of the ABFS Entities of this Agreement or any of the Basic Documents to
which any of the ABFS Entities is a party, nor the consummation by any
of the ABFS Entities of the transactions herein or therein
contemplated, nor compliance by any of the ABFS Entities with the
provisions hereof or thereof, will materially conflict with or result
in a material breach of, or constitute a material default under, any of
the provisions of any law, governmental rule, regulation, judgment,
decree or order binding on any of the ABFS Entities or their respective
properties or certificate of incorporation, articles of association,
certificate of formation, by-laws, operating agreements or other
constituent agreements of any of the ABFS Entities or any of the
provisions of any material indenture, mortgage, contract or other
instrument to which any of the ABFS Entities is a party or by which any
of the ABFS Entities is bound or result in the creation or imposition
of any lien, charge or encumbrance upon any of its properties pursuant
to the terms of any such material indenture, mortgage, contract or
other instrument;
(d) Each of the ABFS Entities possesses all material licenses,
certificates, authorities or permits issued by the appropriate state,
federal or foreign regulatory agencies or bodies necessary to conduct
the businesses now operated by them and as described in the Prospectus,
other than such licenses, certificates, authorities or permits the
failure of which to possess will not have a material adverse effect on
the interests of holders of the Certificates under the Pooling and
Servicing Agreement and none of the ABFS Entities has received any
notice of proceedings relating to the revocation or modification of any
such license, certificate, authority or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, will materially and adversely affect the conduct of the
business, operations, financial condition or income of any of the ABFS
Entities or its ability to perform its respective obligations under any
of the Basic Documents to which it is a party;
(e) As of the Closing Date, each consent, approval,
authorization or order of, or filing with, any court or governmental
agency or body that is required to be obtained or made by any of the
ABFS Entities or their respective subsidiaries for the consummation of
the transactions contemplated by this Agreement and the Basic Documents
shall have been obtained or made, except for such consents, approvals,
authorizations, registrations or qualifications, if any, as may be
required under state securities laws and Blue Sky laws;
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(f) This Agreement has been duly authorized, executed and
delivered by each of the ABFS Entities, and constitutes a legal, valid
and binding instrument enforceable against each of the ABFS Entities in
accordance with its terms, subject (x) to applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws affecting
creditors' rights generally, (y) as to enforceability, to general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law) and (z) as to enforceability with
respect to rights of indemnity thereunder, to limitations of public
policy under applicable securities laws;
(g) The Offered Certificates, when duly and validly authorized
by the Depositor, and, when executed and authenticated as specified in
the Pooling and Servicing Agreement, will be validly issued and
outstanding and will be entitled to the benefits of the Pooling and
Servicing Agreement;
(h) There are no legal or governmental proceedings to which
any of the ABFS Entities is a party or of which any property of any of
the ABFS Entities is the subject (i) asserting the invalidity of this
Agreement, the Offered Certificates or any of the Basic Documents, (ii)
seeking to prevent the issuance of the Offered Certificates or the
consummation of any of the transactions contemplated by this Agreement
or any Basic Document, (iii) which will materially and adversely affect
the performance by any of the ABFS Entities, of their respective
obligations under, or the validity or enforceability of, this
Agreement, the Offered Certificates or the Basic Documents, as
applicable, (iv) seeking to affect adversely the federal income tax
attributes of the Offered Certificates described in the Prospectus or
(v) which will, individually or in the aggregate, have a material
adverse effect on any of the ABFS Entities; and, to the best of any of
the ABFS Entities' knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(i) None of the ABFS Entities is, and, after giving effect to
the offering and sale of the Offered Certificates and other
transactions contemplated thereby, none of the ABFS Entities will be,
an "investment company" or an entity "controlled" by an "investment
company," as such terms are defined in the Investment Company Act of
1940, as amended (the "Investment Company Act");
(j) As of the close of business on November 30, 2002 (the
"Cut-off Date"), the computer tape of the Mortgage Loans made available
to the Representative by American Business Credit, Inc., or by any of
the other ABFS Entities or their affiliates, was accurate in all
material respects;
(k) No selection procedures adverse to the holders of the
Offered Certificates were utilized in selecting those Mortgage Loans
transferred (x) by the Originators to the Seller, and (y) from the
Seller to the Depositor from those mortgage loans available therefor;
(l) Each of the ABFS Entities represents and warrants that it
has made available to the Underwriters copies of consolidated financial
statements for the fiscal year ended June 30, 2002 of American Business
Financial Services, Inc. ("ABFS"). Except as set forth in or
contemplated in the Prospectus or in any publicly available records
filed with the Securities and Exchange Commission (the "Commission") or
as described by ABFS in any press releases of general distribution,
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copies of which have been made available to you, there has been no
material adverse change in the condition (financial or otherwise) of
ABFS since June 30, 2002;
(m) Any taxes, fees and other governmental charges arising
from the execution and delivery by any of the ABFS Entities of this
Agreement, the Pooling and Servicing Agreement and the Unaffiliated
Seller's Agreement, and in connection with the execution and delivery
of the Underwriting Agreement and the execution, delivery and issuance
of the Offered Certificates, have been paid or will be paid by ABFS
Entities prior to the Closing Date;
(n) Since the respective dates as of which information is
given in the Prospectus, there has not been any change, or any
development involving a prospective change, in or affecting any of the
ABFS Entities (other than as contemplated in the Prospectus) which
would be expected to have a material adverse effect on the ability of
such person to consummate the transactions contemplated by, or to
perform its respective obligations under, this Agreement or any of the
Basic Documents to which such ABFS Entity is a party;
(o) In accordance with generally accepted accounting
principles, as currently in effect, each of the relevant ABFS Entities
party to the Unaffiliated Seller's Agreement and the Pooling and
Servicing Agreement will treat the transactions contemplated by such
agreements as a sale of the Mortgage Loans to the respective
purchasers;
(p) The Seller Information (as defined in Section 4 hereof) as
of the date hereof or as of the Closing Date does not contain or will
not contain an untrue statement of a material fact or does not omit or
will not omit to state a material fact required to be stated in the
Prospectus or necessary to make the statements therein not misleading;
(q) The characteristics of the Trust will not subject the
Trust to registration as an investment company under the Investment
Company Act; and
(r) As of the Closing Date, each of the respective
representations and warranties of each of the ABFS Entities set forth
in the Basic Documents will be true and correct, and the Depositor and
the Underwriters may rely on such representations and warranties as if
they were set forth herein in full.
All representations, warranties and agreements made herein
shall be deemed made as of the date hereof and as of the Closing Date; provided,
however, that, to the extent any representation or warranty relates to a
specific date, such representation and warranty shall be deemed to continue to
relate to such date.
3. Agreements of the ABFS Entities. Each of the ABFS Entities
hereby acknowledges and agrees to the pricing of the Offered
Certificates set forth in the Underwriting Agreement and covenants to
use best efforts to satisfy, or cause to be satisfied, all of the
conditions precedent set forth in Section 6 of the Underwriting
Agreement. Each of the ABFS Entities further agrees that on the Closing
Date it shall sell, transfer and assign, or shall cause to be sold,
transferred or assigned, pursuant to the Unaffiliated Seller's
Agreement, the Mortgage Loans having the characteristics described in
the Prospectus. Each of the ABFS Entities further acknowledges that the
obligations of the Underwriters to purchase the Offered Certificates
are subject to the satisfaction of all of the terms and conditions set
forth in the Underwriting Agreement.
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4. Indemnification and Contribution. (a) Each of the ABFS
Entities hereby agrees, jointly and severally, to indemnify and hold
harmless the Depositor, each Underwriter, their respective partners,
directors and officers, and each person, if any, who controls such
Depositor or Underwriter within the meaning of Section 15 of the Act,
from and against any and all losses, claims, damages or liabilities,
joint or several, to which such Depositor or Underwriter or any such
controlling person may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement made by the ABFS Entities in any
of the representations and warranties contained in Section 2 hereof or
any failure of the ABFS Entities to perform its obligations hereunder;
or (ii) an untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus;
or (iii) 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, in each case to the extent, but only to the extent,
that such losses, claims, damages or liabilities (or actions in respect
thereof) arise out or are based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in, or omitted
from, the Registration Statement or the Prospectus in reliance upon and
in conformity with Seller Information (as defined below); and the ABFS
Entities will promptly reimburse the Depositor, each Underwriter, their
respective directors and officers and each person who controls the
Depositor or Underwriter within the meaning of Section 15 of the Act,
for any legal or other expenses reasonably incurred by the Depositor or
any Underwriter and such other indemnified persons in connection with
investigating, preparing or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however,
that such indemnity with regard to any Prospectus shall not inure to
the benefit of any Underwriter (or any person controlling such
Underwriter) from whom the person asserting any such loss, claim,
damage or liability purchased the Offered Certificates concerned, to
the extent that a prospectus relating to such Offered Certificates was
required to be delivered by such Underwriter under the Act in
connection with such purchase, and any such loss, claim, damage or
liability of such Underwriter results from the fact that there was not
sent of given to such person, at or prior to the written confirmation
of the sale of such Offered Certificates to such person, a copy of the
Prospectus (or, in the event the Prospectus is amended or supplemented
prior to the Closing Date, such Prospectus as amended or supplemented)
if copies thereof had previously been furnished copies to such
Underwriter. The foregoing indemnity agreement is in addition to any
liability which the ABFS Entities may otherwise have to the
Underwriters or any person who controls such Underwriter.
(b) The Depositor will indemnify and hold harmless each of the
ABFS Entities, their respective directors and officers and each person,
if any, who controls the ABFS Entities within the meaning of Section 15
of the Act, against any losses, claims, damages or liabilities to which
the ABFS Entities may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon (i) an untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus, or any amendment or
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supplement thereto, or any related preliminary prospectus, or (ii) 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,
in each case to the extent, but, only to the extent, that such losses,
claims, damages or liabilities (or actions in respect thereof) arise
out or are based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in the Registration Statement or
the Prospectus in reliance upon and in conformity with Depositor
Information (as defined below); provided, that such Depositor
Information was not based upon Company Collateral Information; and the
Depositor will reimburse the ABFS Entities, their respective directors
and officers and each person who controls the ABFS Entities within the
meaning of Section 15 of the Act, for any legal or other expenses
reasonably incurred by the ABFS Entities and such other indemnified
persons in connection with investigating, preparing or defending any
such loss, claim, damage, liability or action as such expenses are
incurred. The foregoing indemnity agreement is in addition to any
liability which such Depositor may otherwise have to the ABFS Entities.
(c) Each Underwriter will severally and not jointly indemnify
and hold harmless the ABFS Entities, their respective directors and
officers and each person, if any, who controls the ABFS Entities within
the meaning of Section 15 of the Act, against any losses, claims,
damages or liabilities to which the ABFS Entities may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon (i) an untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus,
or (ii) 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, in each case to the extent, but, only to the extent,
that such losses, claims, damages or liabilities (or actions in respect
thereof) arise out or are based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in the
Registration Statement or the Prospectus in reliance upon and in
conformity with Underwriter Information; provided, that such
Underwriter Information was not based upon Company Collateral
Information (as defined herein); and will reimburse the ABFS Entities,
their respective directors and officers and each person who controls
the ABFS Entities within the meaning of Section 15 of the Act, for any
legal or other expenses reasonably incurred by the ABFS Entities and
such other indemnified persons in connection with investigating,
preparing or defending any such loss, claim, damage, liability or
action as such expenses are incurred. The foregoing indemnity agreement
is in addition to any liability which such Underwriter may otherwise
have to the ABFS Entities.
(d) Promptly after receipt by an indemnified party under
subsection (a), (b) or (c) above 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 the indemnifying party under such
subsection, notify the indemnifying party, in writing, of the claim or
commencement thereof; provided, however, that the failure to notify an
indemnifying party shall not relieve the indemnifying party from any
liability which it may have under such subsection except to the extent
that it has been materially prejudiced by such failure; provided,
further, that the failure to notify any indemnifying party shall not
relieve the indemnifying party from any liability which it may have to
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any indemnified party otherwise than under such subsection. In case any
such action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party (who may be counsel
to the indemnifying party), and after notice from the indemnifying
party to such indemnified party of its election so to assume the
defense thereof and after acceptance by the indemnified party of
counsel, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently,
incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided,
however, that if the defendants in any such action include both the
indemnified party and the indemnifying party, and the indemnified party
shall have been advised in writing (with a copy to the indemnifying
party) by counsel that representation of such indemnified party and the
indemnifying party is inappropriate under applicable standards of
professional conduct due to actual or potential differing interests
between them, the indemnified party or parties shall have the right to
select separate counsel to defend such action on behalf of such
indemnified party or parties. It is understood that the indemnifying
party shall, in connection with any 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 only one separate firm of
attorneys together with appropriate local counsel at any time from all
indemnified parties not having actual or potential differing interests
with any other indemnified party. No indemnifying party shall, without
the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action 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 (i) does not include a statement as to or admission of,
fault, culpability or a failure to act by or on behalf of any such
indemnified party, and (ii) includes an unconditional release of such
indemnified party from all liability on any claims that are the subject
matter of such action.
(e) Each Underwriter severally but not jointly agrees,
assuming all Company Collateral Information is accurate and complete in
all material respects, to indemnify and hold harmless the ABFS Entities
and their respective directors, officers and controlling persons within
the meaning of Section 15 of the Act, against any and all losses,
claims, damages or liabilities, joint or several, to which they may
become subject under the 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 (as defined below) provided by
such Underwriter, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, and
agrees to reimburse each such indemnified party for any legal or other
expenses reasonably incurred by him, her or it in connection with
investigating or defending or preparing to defend any such loss, claim,
damage, liability or action as such expenses are incurred, provided
that, in no event shall any Underwriter be responsible under this
subsection (e) for any amount in excess of the underwriting discount
applicable to the Offered Certificates purchased by such Underwriter
hereunder. The foregoing indemnity agreement is in addition to any
liability which such Underwriters may otherwise have to the ABFS
Entities.
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(f) Each of the ABFS Entities hereby agrees, jointly and
severally, to indemnify and hold harmless the Underwriters, each of the
Underwriters' officers and directors and each person who controls the
Underwriters within the meaning of Section 15 of the Act against any
and all losses, claims, damages or liabilities, joint or several, to
which they may become subject under the 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 Company Collateral Information provided
by any of the ABFS Entities, 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 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 ABFS Entities' obligation under this subsection (f) shall
be in addition to any liability which they may otherwise have to the
Underwriters.
The procedures set forth in Section 4(d) shall be equally applicable to
Sections 4(e) and 4(f).
(g) For purposes of this Section 4, the term "Derived
Information" means such portion, if any, of the information delivered
to the Depositor by the Underwriters for filing with the Commission (a
copy of which shall have been previously furnished to the ABFS
Entities) that:
(i) is not contained in the Prospectus without taking into
account information incorporated therein by reference;
(ii) does not constitute Company Collateral Information; and
(iii) is of the type of information defined as Collateral Term
Sheets, Structural Term Sheets or Computational Materials (as such
terms are interpreted in the No-Action Letters (as defined below)).
"Company Collateral Information" means any computer tape furnished to
the Underwriters by any of the ABFS Entities concerning the Mortgage Loans or
any other information furnished by any of the ABFS Entities to the Underwriters
that is relied on or is reasonably anticipated by the parties hereto to be
relied on by the Underwriters in the course of the Underwriters' preparation of
its Derived Information.
"Depositor Information" means anything contained in the Registration
Statement or the Prospectus other than (i) Company Collateral Information, (ii)
Derived Information, (iii) Seller Information, and (iv) Underwriter Information.
"Seller Information" means information furnished to the Depositor by
the Seller or any of the Seller's affiliates for use in the Prospectus, which
shall include the information set forth in the Prospectus Supplement (other than
the Underwriter Information).
"Underwriter Information" means the concession and reallowance figures
appearing in the Prospectus Supplement below the third paragraph under the
caption "PLAN OF DISTRIBUTION" and the information contained in the third,
fourth and seventh paragraphs under the caption "PLAN OF DISTRIBUTION."
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The terms "Collateral Term Sheet" and "Structural Term Sheets" shall
have the respective meanings assigned to them in the February 13, 1995 letter
(the "PSA Letter") of Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ 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 "▇▇▇▇▇▇ Letter" and,
together with the PSA Letter, the "No-Action Letters") of ▇▇▇▇▇ & ▇▇▇▇ on behalf
of ▇▇▇▇▇▇, Peabody & Co., Inc. (which letter, and the SEC staff's response
thereto, were publicly available May 20, 1994 and as further modified by a
no-action letter response issued by the SEC staff on May 27, 1994).
(h) If the indemnification provided for in this Section 4 is
unavailable to or insufficient to hold harmless an indemnified party
under subsection (a), (b), (c), (e) or (f) above in respect of any
losses, claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of
such losses, claims, damages or liabilities (or actions or proceedings
in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the ABFS Entities, the Depositor and the
Underwriters from the offering of the Offered Certificates. If,
however, the allocation provided by the immediately preceding sentence
is not permitted by applicable law, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in
such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the ABFS Entities, the
Depositor and the Underwriters in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities
(or actions or proceedings in respect thereof), as well as any other
relevant equitable considerations. The relative benefits received by
the ABFS Entities, the Depositor and the Underwriters shall be deemed
to be in the same proportion as the total net proceeds from the
offering of the Offered Certificates purchased under the Underwriting
Agreement (before deducting expenses) received by the ABFS Entities
bear to the total underwriting discounts and commissions received by
the Underwriters with respect to the Offered Certificates purchased
under the Underwriting Agreement, in each case as set forth on the
cover page of the Prospectus Supplement. The ABFS Entities acknowledge
that the Depositor is not receiving any compensation in connection with
the offering of the Offered Certificates. The relative fault 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
any of the ABFS Entities (or any of their affiliates), or the Depositor
or the Underwriters and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission. Each of the ABFS Entities and the Depositor and the
Underwriters agree that it would not be just and equitable if
contributions pursuant to this subsection (h) were determined by pro
rata allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation which does not
take into account the equitable considerations referred to above in
this subsection (h). The amount paid or payable by an indemnified party
as a result of the losses, claims, damages or liabilities (or actions
or proceedings in respect thereof) referred to above in this subsection
(h) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating,
10
preparing or defending any such action or claim. Notwithstanding the
provisions of this subsection (h), no Underwriter shall be required to
contribute any amount in excess of the underwriting discount and
commission set forth on the cover page of the Prospectus Supplement
paid to the respective Underwriter, and the Depositor and Credit Suisse
First Boston Corporation collectively shall not be required to
contribute any amount in excess of the underwriting discount and
commission set forth on the cover page of the Prospectus Supplement
paid to such Underwriter. 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. The Underwriters' obligations in
this subsection (h) to contribute are several in proportion to their
respective underwriting obligations and not joint.
(i) The obligations of each of the ABFS Entities under this
Section 4 shall be in addition to any liability which each of the ABFS
Entities may otherwise have and shall extend, upon the same term and
conditions, to each person, if any, who controls any Underwriter or the
Depositor within the meaning of the Act; and the obligations of the
Depositor or the Underwriters under this Section 4 shall be in addition
to any liability which the Depositor or the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to
each person, if any, who controls any of the ABFS Entities within the
meaning of the Act.
5. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warrants and other
statements of any of the ABFS Entities, the Depositor and the several
Underwriters, as set forth in this Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement, shall remain in full
force and effect, regardless of any investigation (or any statement as
to the results thereof) made by or on behalf of the Depositor, any
Underwriter, or any of the ABFS Entities, or any of their respective
controlling persons, officers or directors, and shall survive delivery
of and payment for the Offered Certificates.
If the Underwriting Agreement is terminated by the Underwriters or if
for any reason the purchase of the Offered Certificates by the Underwriters is
not consummated, each of the ABFS Entities shall remain responsible, jointly and
severally, for the expenses to be paid or reimbursed by them pursuant to Section
4.03 of the Unaffiliated Seller's Agreement, as well as all other out-of-pocket
expenses reasonably incurred by, the Depositor and, to the extent approved in
writing by the Representatives, the Underwriters in making preparations for the
purchase, sale and delivery of the Offered Certificates, and the respective
obligations of each of the ABFS Entities, the Depositor, and the Underwriters
pursuant to Section 4 shall remain in effect, and if any Certificate has been
purchased under the Underwriting Agreement, the representations and warranties
in Section 2 and all obligations under Section 3 shall also remain in effect.
6. Notices, etc. All statements, requests, notices and
agreements hereunder shall be in writing, and (i) if to the Depositor,
shall be delivered or sent by mail, telex or facsimile transmission and
confirmed to Credit Suisse First Boston Mortgage Securities Corp. at
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; Attention: ▇▇▇▇▇▇▇
▇▇▇▇▇ (facsimile number 212-325-5189); (ii) if to Credit Suisse First
Boston Corporation, shall be delivered or sent by mail, telex or
facsimile transmission and confirmed to Credit Suisse First Boston
Corporation at Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇; Attention: Transactions Advisory Group (facsimile number
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212-325-4296); (iii) if to the Underwriters, shall be delivered or sent
by mail, telex or facsimile transmission and confirmed to Credit Suisse
First Boston Corporation, as Representative, at the contact details
specified in paragraph (ii) above; and (iv) if to American Business
Credit, Inc. or any of the ABFS Entities shall be delivered or sent by
mail, telex or facsimile transmission to American Business Financial
Services, Inc., Bala Pointe Office Centre, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇ (facsimile number (610)
668-4164). Any such statements, requests, notices or agreements shall
take effect at the time of receipt thereof.
7. Bankruptcy Petition. The ABFS Entities agree that, prior to
the date which is one year and one day after the payment in full of all
securities issued by the Depositor or by a trust for which the
Depositor was the depositor which securities were rated by any
nationally recognized statistical rating organization, it will not, and
will cause each of the other ABFS Entities not to, institute against,
or join any other person in instituting against, the Depositor any
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings or other proceedings under any Federal or state bankruptcy
or similar law.
8. Successors. This Agreement shall be binding upon, and inure
solely to the benefit of, the Depositor, the Underwriters and each of
the ABFS Entities and, to the extent provided in Section 4 hereof, the
officers and directors of each of the ABFS Entities, each of the
Depositor and the Underwriters, and each person who controls each of
the ABFS Entities or the Depositor or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns,
and no other person shall acquire or have any right under or by virtue
of this Agreement. No purchaser of any of the Offered Certificates from
any Underwriter shall be deemed a successor or assign by reason merely
of such purchase.
9. Representation of Underwriters. In all dealings hereunder,
the Representative shall act on behalf of each of the Underwriters, and
the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter
made or given by the Representative.
10. Counterparts. This Agreement may be executed by any one or
more of the parties hereto in any number of counterparts, each of which
shall be deemed to be an original, but all such counterparts shall
together constitute one and the same instrument.
11. Applicable Law. (a) This Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York.
(b) Each of the parties hereto hereby submits to the
non-exclusive jurisdiction of the Federal and state courts in the
Borough of Manhattan in The City of New York in any suit or proceeding
arising out of or relating to this Agreement or the transactions
contemplated hereby.
12. Miscellaneous. Neither this Agreement nor any term hereof
may be changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by the party against whom enforcement of
the change, waiver, discharge or termination is sought. The headings in
this Agreement are for purposes of reference only and shall not limit
or otherwise affect the meaning hereof.
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If the foregoing is in accordance with your understanding,
please sign and return to us one for each of the ABFS Entities, the Depositor
and each of the Underwriters plus one for each counsel counterparts hereof, and
upon the acceptance hereof by you, on behalf of each of the Underwriters, this
letter and such acceptance hereof shall constitute a binding agreement among
each of the ABFS Entities, the Depositor, and the Representative, acting on
behalf of itself and of the several Underwriters in accordance with its terms.
Very truly yours,
ABFS 2002-4, INC.
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: Chief Executive Officer
AMERICAN BUSINESS CREDIT, INC.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
HOMEAMERICAN CREDIT, INC.,
D/B/A UPLAND MORTGAGE
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
AMERICAN BUSINESS MORTGAGE
SERVICES, INC.
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
[SIGNATURE PAGE TO INDEMNIFICATION AGREEMENT]
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The foregoing Indemnification Agreement is hereby confirmed and accepted as of
the date first above written.
CREDIT SUISSE FIRST BOSTON
MORTGAGE SECURITIES CORP., as
Depositor
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
CREDIT SUISSE FIRST BOSTON
CORPORATION, acting on behalf of itself
and as the Representative of the several
Underwriters
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
[SIGNATURE PAGE TO INDEMNIFICATION AGREEMENT]
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