Exhibit 1.1
AMRESCO RESIDENTIAL SECURITIES CORPORATION
AND
PRUDENTIAL SECURITIES INCORPORATED
As Representative of the several Underwriters
UNDERWRITING AGREEMENT
FOR
AMRESCO RESIDENTIAL SECURITIES CORPORATION MORTGAGE LOAN TRUST 1997-2
MORTGAGE LOAN PASS THROUGH CERTIFICATES,
CLASS A-1 FIXED RATE CERTIFICATES
CLASS A-2 FIXED RATE CERTIFICATES
CLASS A-3 FIXED RATE CERTIFICATES
CLASS A-4 FIXED RATE CERTIFICATES
CLASS A-5 FIXED RATE CERTIFICATES
CLASS A-6 FIXED RATE CERTIFICATES
CLASS A-7 FIXED RATE CERTIFICATES
CLASS A-8 FIXED RATE CERTIFICATES
CLASS A-9 ADJUSTABLE RATE CERTIFICATES
CLASS M-1F FIXED RATE CERTIFICATES
CLASS M-1A ADJUSTABLE RATE CERTIFICATES
CLASS M-2F FIXED RATE CERTIFICATES
CLASS M-2A ADJUSTABLE RATE CERTIFICATES
CLASS B-1F FIXED RATE CERTIFICATES
CLASS B-1A ADJUSTABLE RATE CERTIFICATES
AMRESCO RESIDENTIAL SECURITIES CORPORATION MORTGAGE LOAN TRUST 1997-2
MORTGAGE LOAN PASS THROUGH CERTIFICATES,
CLASS A-1 FIXED RATE CERTIFICATES
CLASS A-2 FIXED RATE CERTIFICATES
CLASS A-3 FIXED RATE CERTIFICATES
CLASS A-4 FIXED RATE CERTIFICATES
CLASS A-5 FIXED RATE CERTIFICATES
CLASS A-6 FIXED RATE CERTIFICATES
CLASS A-7 FIXED RATE CERTIFICATES
CLASS A-8 FIXED RATE CERTIFICATES
CLASS A-9 ADJUSTABLE RATE CERTIFICATES
CLASS M-1F FIXED RATE CERTIFICATES
CLASS M-1A ADJUSTABLE RATE CERTIFICATES
CLASS M-2F FIXED RATE CERTIFICATES
CLASS M-2A ADJUSTABLE RATE CERTIFICATES
CLASS B-1F FIXED RATE CERTIFICATES
CLASS B-1A ADJUSTABLE RATE CERTIFICATES
UNDERWRITING AGREEMENT
June 5, 1997
Prudential Securities Incorporated
as Representative of the
several Underwriters
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Dear Ladies and Gentlemen:
AMRESCO Residential Securities Corporation (the "Depositor"), a Delaware
corporation, has authorized the issuance and sale of Mortgage Loan Pass-Through
Certificates, Class A-1, Class A-2, Class A-3, Class A-4, Class A-5, Class A-6,
Class A-7, Class A-8 and Class A-9 (the "Class A Certificates"), Class M-1F and
Class M-1A (the "Class M-1 Certificates"), Class M-2F and Class M-2A (the "Class
M-2 Certificates" and, collectively with the Class M-1 Certificates, the
"Mezzanine Certificates"), Class B-1F and Class B-1A (the "Class B Certificates
and, collectively with the Mezzanine Certificates, the "Subordinate
Certificates" and, collectively with the Class A Certificates and the Mezzanine
Certificates, the "Offered Certificates") and the Class S Certificates, the
Class C and the Class R Certificates (the "Retained Certificates," and,
collectively with the Offered Certificates, the "Certificates"), evidencing
interests in a pool of fixed and adjustable rate mortgage loans (the "Mortgage
Loans"). The Mortgage Loans are secured primarily by first and second deeds of
trust or mortgages on one- to four-family residential properties.
Only the Offered Certificates are being purchased by the Underwriters named
in Schedule A hereto, and the Underwriters are purchasing, severally, only the
Offered Certificates set forth opposite their names in Schedule A, except that
the amounts purchased by the Underwriters may change in accordance with Section
X of this Agreement. Prudential Securities Incorporated is acting as
representative of the several Underwriters and in such capacity, is hereinafter
referred to as the "Representative."
The Certificates will be issued under a pooling and servicing agreement
(the "Pooling and Servicing Agreement"), dated as of June 1, 1997 among the
Depositor, AMRESCO Residential Capital Markets, Inc., as Seller (the "Seller"),
Advanta Mortgage Corp. USA ("Advanta"), Ameriquest Mortgage Company
("Ameriquest") and Option One Mortgage Corporation ("Option One") as Servicers
(the "Servicers") and The Bank of New York, as trustee (the "Trustee"). The
Certificates will evidence fractional undivided interests in the trust (the
"Trust"). The assets of the Trust will initially include, among other things, a
pool of fixed and adjustable rate Mortgage Loans (the "Initial Mortgage Loans")
and such amounts as may be held by the Trustee in the Pre-Funding Account (the
"Pre-Funding Account"), the Capitalized Interest Account (the "Capitalized
Interest Account") and any other accounts held by the Trustee for the Trust. The
Initial Mortgage Loans will be acquired, in part, from the various Originators
pursuant to the various "Transfer Agreements" as such term is defined in the
Pooling and Servicing Agreement.
On the Closing Date, approximately $145,800,000 will be deposited by the
Depositor in the name of the Trustee in the Pre-Funding Account from the sale of
the Certificates. It is intended that additional Mortgage Loans satisfying the
criteria specified in the Pooling and Servicing Agreement (the "Subsequent
Mortgage Loans") will be purchased by the Trust for inclusion in the Trust from
the Depositor from time to time on or before September 3, 1997 from funds on
deposit in the Pre-Funding Account at the time of execution and delivery of each
Subsequent Transfer Agreement ("Subsequent Transfer Agreement"). Funds in the
Capitalized Interest Account will be applied by the Trustee to cover shortfalls
in interest during the Funding Period. The Offered Certificates will initially
represent an undivided ownership interest in the sum of (i) a pool of Initial
Mortgage Loans in an amount of $594,159,422.09 as of the close of business on
June 1, 1997 (the "Cut-Off Date") and (ii) approximately $145,800,000 on deposit
in the Pre-Funding Account. A form of the Pooling and Servicing Agreement has
been filed as an exhibit to the Registration Statement (hereinafter defined).
The Certificates are more fully described in a Registration Statement which
the Depositor has furnished to the Underwriters. Capitalized terms used but not
defined herein shall have the meanings given to them in the Pooling and
Servicing Agreement.
SECTION I. Representations and Warranties of the Depositor. The Depositor
represents and warrants to, and agrees with the Underwriters that:
A. A Registration Statement on Form S-3 (No. 333-8687), has (i) been
prepared by the Depositor in conformity with the requirements of the Securities
Act of 1933 (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
Representative. As used in this Agreement, "Effective Time" means the date and
the time as of which such Registration Statement, or the most recent
post-effective amendment thereto, if any, was declared effective by the
Commission; "Effective Date" means the date of the Effective Time; "Registration
Statement" means such registration statement, at the Effective Time, including
any documents incorporated by reference therein at such time; "Basic Prospectus"
means such final prospectus dated July 28, 1996; and "Prospectus Supplement"
means the final prospectus supplement relating to the Offered Certificates, to
be filed with the Commission pursuant to paragraphs (2), (3) or (5) of Rule
424(b) of the Rules and Regulations. "Prospectus" means the Basic Prospectus
together with the Prospectus Supplement. Reference made herein to the Prospectus
shall be deemed to refer to and
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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 (the "Exchange Act") after the date of the Prospectus and incorporated by
reference in the Prospectus, and any reference to any amendment to the
Registration Statement shall be deemed to include any report of the Depositor
filed with the Commission pursuant to Section 13(a) or 15(d) of the Exchange Act
after the Effective Time that is incorporated by reference in the Registration
Statement. The Commission has not issued any order preventing or suspending the
use of the Prospectus. There are no contracts or documents of the Depositor
which are required to be filed as exhibits to the Registration Statement
pursuant to the Securities Act or the Rules and Regulations which have not been
so filed or incorporated by reference therein on or prior to the Effective Date
of the Registration Statement other than such documents or materials, if any, as
any Underwriter delivers to the Depositor pursuant to Section VIII D hereof for
filing on Form 8-K.
B. The Registration Statement conforms, and the Prospectus and any further
amendments or supplements to the Registration Statement or the Prospectus will,
when they become effective or are filed with the Commission, as the case may be,
conform in all respects to the requirements of the Securities Act and the Rules
and Regulations. The Registration Statement, as of the Effective Date thereof
and of any amendment thereto, did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading. The Prospectus as of its date,
and as amended or supplemented as of the Closing Date does not and will not
contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that no
representation or warranty is made as to information contained in or omitted
from the Registration Statement or the Prospectus in reliance upon and in
conformity with written information furnished to the Depositor in writing by the
Underwriters expressly for use therein.
C. The documents incorporated by reference in the Prospectus, when they
became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Securities Act or
the Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; and any further
documents so filed and incorporated by reference in the Prospectus, when such
documents become effective or are filed with the Commission, as the case may be,
will conform in all material respects to the requirements of the Securities Act
or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; provided that no representation
is made as to documents deemed to be incorporated by reference in the Prospectus
as the result of filing a Form 8-K at the request of the Underwriters except to
the extent such documents reflect information furnished by the Depositor to the
Underwriters for the purpose of preparing such documents.
D. Since the respective dates as of which information is given in the
Prospectus, there has not been any material adverse change, or any development
involving a prospective material adverse change, in the general affairs,
management, financial condition, or results of operations of the Depositor,
otherwise than as set forth or contemplated in the Prospectus as supplemented or
amended as of the Closing Date.
E. The Depositor has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation, is duly qualified to do business and is in good
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standing as a foreign corporation in each jurisdiction in which its ownership or
lease of property or the conduct of its business requires such qualification,
and has all power and authority necessary to own or hold its properties, to
conduct the business in which it is engaged and to enter into and perform its
obligations under this Agreement, the Pooling and Servicing Agreement or any
Subsequent Transfer Agreement and to cause the Certificates to be issued.
F. There are no actions, proceedings or investigations pending with respect
to which the Depositor has received service of process before or threatened by
any court, administrative agency or other tribunal to which the Depositor is a
party or of which any of its properties is the subject (a) which if determined
adversely to the Depositor would have a material adverse effect on the business
or financial condition of the Depositor, (b) asserting the invalidity of this
Agreement, the Pooling and Servicing Agreement, the Certificates, or any
Subsequent Transfer Agreement, (c) seeking to prevent the issuance of the
Certificates or the consummation by the Depositor of any of the transactions
contemplated by the Pooling and Servicing Agreement, this Agreement or any
Subsequent Transfer Agreement, as the case may be, (d) which might individually
or in the aggregate materially and adversely affect the performance by the
Depositor of its obligations under, or the validity or enforceability of, the
Pooling and Servicing Agreement, and this Agreement, the Certificates or any
Subsequent Transfer Agreement or (e) which might adversely affect the federal
income tax attributes of the Certificates as described in the Prospectus.
G. This Agreement has been, and the Pooling and Servicing Agreement and
each Subsequent Transfer Agreement when executed and delivered as contemplated
hereby and thereby will have been, duly authorized, executed and delivered by
the Depositor, and this Agreement constitutes, and the Pooling and Servicing
Agreement when executed and delivered as contemplated herein, will constitute,
legal, valid and binding instruments enforceable against the Depositor in
accordance with their respective terms, subject as to enforceability to (x)
applicable bankruptcy, reorganization, insolvency, moratorium or other similar
laws affecting creditors' rights generally, (y) general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or at
law), and (z) with respect to rights of indemnity under this Agreement,
limitations of public policy under applicable securities laws.
H. The execution, delivery and performance of this Agreement, the Pooling
and Servicing Agreement and any Subsequent Transfer Agreement by the Depositor
and the consummation of the transactions contemplated hereby and thereby,
compliance with the provisions thereof, 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 articles of
incorporation or by-laws of the Depositor (which breach or violation would have
a material adverse effect on the business, operations or financial condition 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. The Depositor is not a party to, bound by, or in breach or
violation of, any indenture or other agreement or instrument, or subject to or
in violation of any statute, order, rule or regulation of any court,
governmental agency or body or other tribunal having jurisdiction over the
Depositor, which materially and adversely affects, or is reasonably likely in
the future to materially and adversely affect, (i) the ability of the Depositor
to perform its obligations under this Agreement and the Pooling and Servicing
Agreement or (ii) the business, operations, results of operations, financial
position, income, properties or assets of the Depositor.
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I. The Depositor has no reason to know that Deloitte & Touche, LLP are not
independent public accountants with respect to the Depositor as required by the
Securities Act and the Rules and Regulations.
J. The direction by the Depositor to the Trustee to execute, authenticate,
issue 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, issued 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.
K. No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body of the United
States is required for the issuance of the Certificates and the sale of the
Offered Certificates to the Underwriters, or the consummation by the Depositor
of the other transactions contemplated by this Agreement, the Pooling and
Servicing Agreement and any Subsequent Transfer Agreement, except such consents,
approvals, authorizations, registrations or qualifications as may be required
under State securities or Blue Sky laws in connection with the purchase and
distribution of the Offered Certificates by the Underwriters or as have been
obtained.
L. The Depositor possesses all material licenses, certificates, authorities
or permits issued by the appropriate State, Federal or foreign regulatory
agencies or bodies necessary to conduct the business now conducted by it and as
described in the Prospectus, and there are no proceedings pending with respect
to which the Depositor has received service of process or, to the best knowledge
of the Depositor threatened, relating to the revocation or modification of any
such license, certificate, authority or permit which if decided adversely to the
Depositor would, singly or in the aggregate, materially and adversely affect the
conduct of its business, operations or financial condition.
M. At the time of execution and delivery of the Pooling and Servicing
Agreement, the Depositor will: (i) have good title to the Mortgage Loans
conveyed by the Seller, free and clear of any lien, mortgage, pledge, charge,
encumbrance, adverse claim or other security interest (collectively, "Liens");
(ii) not have assigned to any person any of its right or title in the Mortgage
Loans, in the Pooling and Servicing Agreement or in the Certificates being
issued pursuant thereto; and (iii) have the power and authority to sell its
interest in the Mortgage Loans to the Trustee and to sell the Offered
Certificates to the Underwriters. Upon execution and delivery of the Pooling and
Servicing Agreement by the Trustee, the Trustee 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 Offered Certificates,
the Underwriters will have good title to the Offered Certificates, free of any
Liens.
N. As of the Cut-Off Date, each of the Mortgage Loans will meet the
eligibility criteria described in the Prospectus and will conform to the
descriptions thereof contained in the Prospectus.
O. Neither the Depositor nor the Trust created by the Pooling and Servicing
Agreement is an "investment company" within the meaning of such term under the
Investment Company Act of 1940 (the "1940 Act") and the rules and regulations of
the Commission thereunder.
P. At the Closing Date, the Offered Certificates, each Transfer Agreement
and the Pooling and Servicing Agreement will conform in all material respects to
the descriptions thereof contained in the Prospectus.
Q. At the Closing Date, the Class A Certificates shall have been rated in
the highest rating category by ▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's"),
Fitch Investors Service, L.P. ("Fitch") and
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Duff & ▇▇▇▇▇▇ Credit Rating Co. ("DCR"). In addition, the Class M-1, Class M-2
and Class B Certificates shall receive ratings of "▇▇▇," "▇▇" and "Baa3,"
respectively from Moody's and "AA," "A" and "BBB," respectively, from Fitch and
DCR.
R. Any taxes, fees and other governmental charges in connection with the
execution, delivery and issuance of this Agreement, the Pooling and Servicing
Agreement and the Certificates have been paid or will be paid at or prior to the
Closing Date.
S. At the Closing Date, each of the representations and warranties of the
Depositor set forth in the Pooling and Servicing Agreement will be true and
correct in all material respects.
T. The transfer of the Mortgage Loans to the Trust at the Closing Date and,
if applicable, on each Subsequent Transfer Date, will be treated by the
Depositor for financial accounting and reporting purposes as a sale of assets
and not as a pledge of assets to secure debt.
U. The Depositor is not aware of (i) any request by the Commission for any
further amendment of the Registration Statement or the Prospectus or for any
additional information, or (ii) any notification with respect to the suspension
of the qualification of the Certificates for sale in any jurisdiction or the
initiating or threatening of any proceeding for such purpose.
V. The Pooling and Servicing Agreement is not required to be qualified
under the Trust Indenture Act of 1939, as amended.
Any certificate signed by an officer of the Depositor and delivered to the
Representative or counsel for the Representative in connection with an offering
of the Offered Certificates shall be deemed, and shall state that it is, a
representation and warranty as to the matters covered thereby to each person to
whom the representations and warranties in this Section I are made.
SECTION II. Purchase and Sale. The commitment of the Underwriters to
purchase the Offered 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 issue the Offered Certificates and
agrees to sell to the Underwriters, and the Underwriters agree (except as
provided in Sections X and XI hereof) severally and not jointly to purchase from
the Depositor the aggregate initial principal amounts or percentage interests of
the Offered Certificates set forth opposite their names on Schedule A, at the
purchase price or prices set forth in Schedule A.
SECTION III. Delivery and Payment. Delivery of and payment for the Offered
Certificates to be purchased by the Underwriters shall be made at the offices of
▇▇▇▇▇ & ▇▇▇▇▇▇ in Washington D.C., or at such other place as shall be agreed
upon by the Representative and the Depositor at 10:00 A.M. eastern daylight time
on June 12, 1997 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 Offered
Certificates shall be made to the Representative for the accounts of the
Underwriters against payment of the purchase price thereof. The Certificates
shall be in such authorized denominations and registered in such names as the
Underwriters may request in writing at least two business days prior to the
Closing Date. The Offered Certificates will be made available for examination by
the Representative no later than 2:00 p.m. eastern time on the first business
day prior to the Closing Date.
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SECTION IV. Offering by the Underwriters. It is understood that, subject to
the terms and conditions hereof, the Underwriters propose to offer the Offered
Certificates for sale to the public as set forth in the Prospectus.
SECTION V. Covenants of the Depositor. The Depositor agrees as follows:
A. To prepare the Prospectus in a form approved by the Underwriters 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; 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 Offered Certificates; to promptly
advise the Underwriters of its receipt of notice of the issuance by the
Commission of any stop order or of: (i) any order preventing or suspending the
use of the Prospectus; (ii) the suspension of the qualification of the Offered
Certificates for offering or sale in any jurisdiction; (iii) the initiation of
or threat of any proceeding for any such purpose; (iv) any request by the
Commission for the amending or supplementing of the Registration Statement or
the Prospectus or for additional information. In the event of the issuance of
any stop order or of any order preventing or suspending the use of the
Prospectus or suspending any such qualification, the Depositor promptly shall
use its best efforts to obtain the withdrawal of such order by the Commission.
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) 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 prior to the expiration of nine months after
the Effective Time in connection with the offering or sale of the Offered
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 any Underwriter's request, 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, and in case the Underwriters
are required to deliver a Prospectus in connection with sales of any of the
Offered Certificates at any time nine months or more after the Effective Time,
upon the request of an Underwriter but at its expense, the Depositor shall
prepare and deliver to such Underwriter as many copies as such Underwriter may
reasonably request of
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an amended or supplemented Prospectus complying with Section 10(a)(3) of the
Securities Act. If such amendment or supplement to the Prospectus is required to
be contained in a post-effective amendment to the Registration Statement, the
Depositor will use its best efforts to cause such amendment of the Registration
Statement to be made effective as soon as possible.
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 Underwriters, be required by the Securities Act
or requested by the Commission.
E. To furnish the Underwriters and counsel for the Underwriters, prior to
filing with the Commission, and to obtain the consent of the Underwriters for
the filing of the following documents relating to the Certificates: (i)
amendment to the Registration Statement or supplement to the Prospectus, or
document incorporated by reference in the Prospectus, or (ii) Prospectus
pursuant to Rule 424 of the Rules and Regulations.
F. To make generally available to holders of the Offered Certificates as
soon as practicable, but in any event not later than 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.
G. To use its best efforts, in cooperation with the Underwriters, to
qualify the Offered Certificates for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States or
elsewhere as the Underwriters 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 Offered Certificates. 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 Offered Certificates have been so qualified.
H. So long as the Offered 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 furnished to the
Trustee: (i) the annual statement as to compliance delivered to the Trustee
pursuant to Section 8.16 of the Pooling and Servicing Agreement; (ii) the annual
statement of a firm of independent public accountants furnished to the Trustee
pursuant to Section 8.17 of the Pooling and Servicing Agreement; (iii) the
monthly servicing report furnished to the Trustee pursuant to Section 8.29 of
the Pooling and Servicing Agreement; (iv) the monthly reports furnished to the
Certificateholders pursuant to Section 7.09 of the Pooling and Servicing
Agreement; and (v) from time to time, any other information concerning the Trust
filed with any government or regulatory authority that is otherwise publicly
available, as the Representative may reasonably request.
I. To apply the net proceeds from the sale of the Offered Certificates in
the manner set forth in the Prospectus.
J. During a period of seven calendar days from the Closing Date, neither
the Depositor nor any trust established, directly or indirectly, by the
Depositor will, without the Representative's prior written consent (which
consent shall not be unreasonably withheld), offer or sell mortgage pass-through
certificates backed by mortgage loans, except pursuant to this Agreement.
K. The Depositor will enter into the applicable agreements, to which it is
a party pursuant to the Pooling and Servicing Agreement, on or prior to the
Closing Date.
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L. On each Subsequent Transfer Date, the Depositor shall cause its special
counsel to deliver a favorable opinion substantially to the effect set forth in
Section VI.G (except as it applies to subdivisions 5 and 6 therein) hereof,
appropriately modified to refer to the applicable Subsequent Mortgage Loans,
Subsequent Transfer Agreement, Subsequent Cut-Off Date and Subsequent Transfer
Date.
M. The Depositor will cause the Computational Materials (as defined in
Section VIII.D below) with respect to the Certificates which are delivered to
the Depositor as provided in Section VIII.D below to be filed with the
Commission on a Current Report on Form 8-K (the "Current Report") not later than
the date on which such materials are required to be filed pursuant to the
▇▇▇▇▇▇/PSA Letters (as defined in Section VIII.D below).
SECTION VI. Conditions to the Underwriters' Obligations. The obligations of
the Underwriters to purchase the Offered Certificates pursuant to this Agreement
are subject to: (i) the accuracy on and as of the Closing Date of the
representations and warranties on the part of the Depositor herein contained
(including those representations and warranties set forth in the Pooling and
Servicing Agreement and incorporated herein); (ii) the performance by the
Depositor of all of its obligations hereunder; (iii) the accuracy of the
statements of the Depositor made in any certificate or other document delivered
pursuant to the provisions hereof; and (iv) the following conditions as of the
Closing Date:
A. The Underwriters 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. The Prospectus shall have been filed pursuant to Rule 424(b).
B. The Underwriters 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 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
counsel for the Underwriters, is material and is required to be stated therein
or is necessary to make the statements therein not misleading.
C. All corporate proceedings and other legal matters relating to the
authorization, form and validity of this Agreement, the Pooling and Servicing
Agreement, the Certificates, 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 counsel for the
Underwriters, and the Depositor shall have furnished to such counsel all
documents and information that they may reasonably request to enable them to
pass upon such matters. The Representative shall have received the Pooling and
Servicing Agreement and the Offered Certificates in form and substance
satisfactory to the Representative, duly executed by all signatories required
pursuant to the respective terms thereof.
▇. ▇▇▇▇▇ & ▇▇▇▇▇▇ shall have furnished to the Underwriters their written
opinion, as counsel to the Depositor, addressed to the Underwriters and dated
the Closing Date, in form and substance satisfactory to the Underwriters, to the
effect that:
1. The conditions to the use by the Depositor of a registration statement
on Form S-3 under the Securities Act, as set forth in the General Instructions
to Form S-3, have been satisfied with respect to the Registration Statement and
the Prospectus.
9
2. The Registration Statement and any amendments thereto have become
effective under the 1933 Act; to the best of such counsel's knowledge, no stop
order suspending the effectiveness of the Registration Statement has been issued
and not withdrawn and no proceedings for that purpose have been instituted or
threatened and not terminated; and the Registration Statement, the Prospectus
and each amendment or supplement thereto, as of their respective effective or
issue dates (other than the financial and statistical information contained
therein, as to which such counsel need express no opinion), complied as to form
in all material respects with the applicable requirements of the 1933 Act and
the rules and regulations thereunder, and such counsel does not know of any
amendment to the Registration Statement required to be filed.
3. There are no material contracts, indentures or other documents of a
character required to be described or referred to in the Registration Statement
or the Prospectus or to be filed as exhibits to the Registration Statement other
than those described or referred to therein or filed or incorporated by
reference as exhibits thereto.
4. The statements set forth in the Basic Prospectus under the captions
"Description of The Securities" and in the Prospectus Supplement under the
captions "Description of The Offered Certificates" and "The Pooling and
Servicing Agreement," to the extent such statements purport to summarize certain
provisions of the Certificates or of the Pooling and Servicing Agreement, are
fair and accurate in all material respects.
5. The statements set forth in the Basic Prospectus and the Prospectus
Supplement under the captions "ERISA Considerations," "Certain Federal Income
Tax Consequences," "Legal Investment Matters" and, "Certain Legal Aspects of the
Mortgage Assets" to the extent that they constitute matters of federal law,
provide a fair and accurate summary of such law or conclusions.
6. The Pooling and Servicing Agreement and the Transfer Agreements conform
in all material respects to the description thereof contained in the Prospectus
and the Pooling and Servicing Agreement is not required to be qualified under
the Trust Indenture Act of 1939, as amended, and the Trust is not required to be
registered under the Investment Company Act of 1940, as amended.
7. Neither the Depositor nor the Trust is an "investment company" or under
the "control" of an "investment company" as such terms are defined in the 1940
Act.
8. Assuming that the Trustee causes certain assets of the REMIC Estate, as
the Trustee has covenanted to do in the Pooling and Servicing Agreement, to be
treated as a "real estate mortgage investment conduit" ("REMIC"), as such term
is defined in the Internal Revenue Code of 1986, as amended (the "Code"), and
the parties to the Pooling and Servicing Agreement comply with the terms
thereof, such assets of the REMIC Estate will be treated as a REMIC, the Offered
Certificates, the Class S Certificates and the Class C Certificates will be
treated as the "regular interests" in the REMIC and the Class R Certificates
will be treated as the sole "residual interest" in the REMIC. Neither the Trust
nor certain assets and accounts are subject to tax upon its income or assets by
any taxing authority of the State of New York or the City of New York.
9. Assuming that the Class A-9 Certificates and the Class M-1A Certificates
are rated at the time of issuance in one of the two highest rating categories by
a nationally recognized statistical rating organization, such Certificates at
such time will be a "mortgage related security" as such term is defined in
Section 3(a)(41) of the Securities Exchange Act of 1934, as amended.
10
10. To the best of such counsel's knowledge, there are no actions,
proceedings or investigations pending that would adversely affect the status of
the REMIC Estate as a REMIC.
11. As a consequence of the qualification of the REMIC Estate as a REMIC,
the Offered Certificates will be treated as "qualifying real property loans"
under Section 593(d) of the Code, "regular . . . interest(s) in a REMIC" under
Section 7701(a)(19)(C) of the Code and "real estate assets" under Section 856(c)
of the Code in the same proportion that the assets in the Trust consist of
qualifying assets under such Sections. In addition, as a consequence of the
qualification of the REMIC Estate as a REMIC interest on the Offered
Certificates will be treated as "interest on obligations secured by mortgages on
real property" under Section 856(c) of the Code to the extent that such Offered
Certificates are treated as "real estate assets" under Section 856(c) of the
Code.
12. The Certificates will, when issued, conform to the description thereof
contained in the Prospectus.
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 Underwriters to the effect that no facts have come to the
attention of such counsel which lead them to believe that: (a) the Registration
Statement, at the time such Registration Statement became effective, contained
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading (except as to financial or statistical data contained in the
Registration Statement); (b) the Prospectus, as of its date and as of the
Closing Date, contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; or (c) any document
incorporated by reference in the Prospectus or any further amendment or
supplement to any such incorporated document made by the Depositor prior to the
Closing Date (other than any document filed at the request of an Underwriter to
the extent such document relates to Computational Materials) contained, as of
the time it became effective or was filed with the Commission, as the case may
be, an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
E. The Underwriters shall have received the favorable opinion, dated the
Closing Date, of ▇▇▇▇▇ & ▇▇▇▇▇▇, special counsel to the Depositor, addressed to
the Depositor and satisfactory to Moody's, Fitch, DCR and the Underwriters, with
respect to certain matters relating to the transfer of the Mortgage Loans to the
Depositor and from the Depositor to the Trust, and such counsel shall have
consented to reliance on such opinion by Moody's, Fitch, DCR and the
Underwriters as though such opinion had been addressed to each such party.
F. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, counsel for Advanta, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for
Option One and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Wood, counsel for Long Beach, each shall have
furnished to the Underwriters their written opinion, as counsel to the related
Servicer, addressed to the Underwriters and the Depositor and dated the Closing
Date, in form and substance satisfactory to the Underwriters, to the effect
that:
1. Each Servicer is validly existing in good standing as a corporation
under the laws of its State of incorporation.
2. Each Servicer has full corporate power and authority to serve in the
capacity of servicers of the related Mortgage Loans as contemplated in the
Pooling and Servicing Agreement.
11
3. The Pooling and Servicing Agreement has been duly authorized, executed
and delivered by each Servicer, and, assuming the due authorization, execution
and delivery of such agreements by the other parties thereto, constitute the
legal, valid and binding agreements of each Servicer, enforceable against them
in accordance with their terms, subject as to enforceability to (x) bankruptcy,
insolvency, reorganization, moratorium, receivership or other similar laws now
or hereafter in effect relating to creditors' rights generally and (y) the
qualification that the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to equitable defenses and to the
discretion, with respect to such remedies, of the court before which any
proceedings with respect thereto may be brought.
4. No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body having
jurisdiction over each Servicer is required for the consummation by either of
them of the transactions contemplated by the Pooling and Servicing Agreement,
except such consents, approvals, authorizations, registrations and
qualifications as have been obtained.
5. The execution, delivery or performance by each Servicer of the Pooling
and Servicing Agreement and the transactions contemplated thereby do not (A)
conflict with or result in a breach of, or constitute a default under, (i) any
term or provision of the certificate of incorporation or by-laws of such
Servicer; (ii) any term or provision of any material agreement, deed of trust,
mortgage loan agreement, contract, instrument or indenture, or other agreement
to which such Servicer is a party or is bound or to which any of the property or
assets of such Servicer or any of its subsidiaries is subject; (iii) to the best
of such firm's knowledge without independent investigation any order, judgment,
writ, injunction or decree of any court or governmental authority having
jurisdiction over such Servicer; or (iv) any law, rule or regulations applicable
to such Servicer; or (B) to the best of such firm's knowledge without
independent investigation, results in the creation or imposition of any lien,
charge or encumbrance upon the Trust Estate or upon the Certificates.
6. There are, to the best of such counsel's knowledge without independent
investigation, no actions, proceedings or investigations pending or threatened
against a Servicer before any court, administrative agency or other tribunal (a)
asserting the validity of the Pooling and Servicing Agreement or the
Certificates, (b) seeking to prevent the consummation of any of the transactions
contemplated by the Pooling and Servicing Agreement or (c) which would
materially and adversely affect the performance by the Servicers of its
obligations under, or the validity or enforceability of, the Pooling and
Servicing Agreement.
G. Counsel for the Depositor and the Seller (which may be in-house counsel)
shall have furnished to the Underwriters such counsel's written opinion,
addressed to the Underwriters and dated the Closing Date, in form and substance
satisfactory to the Underwriters, to the effect that:
1. The Depositor has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware and 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 (except where any such failure would
not have a material adverse effect on the Depositor's ability to perform its
obligations under this Agreement or the Pooling and Servicing Agreement, and has
all 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 and the Pooling and Servicing Agreement, and to
cause the Certificates to be issued.
2. The Depositor is not in violation of its articles of incorporation or
by-laws or in default in the performance or observance of any material
obligation, agreement, covenant or condition contained
12
in any contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Depositor is a party or by which it or its properties
may be bound, which default might result in any material adverse change in the
financial condition of the Depositor or which might materially and adversely
affect the properties or assets, taken as a whole, the Depositor.
3. This Agreement and the Pooling and Servicing Agreement have been duly
authorized, executed and delivered by the Depositor and the Subsequent Transfer
Agreements have been duly authorized, and when duly executed and delivered by
the Depositor and, assuming the due authorization, execution and delivery of
such agreements by the other parties thereto, such agreements constitute and in
the case of any Subsequent Transfer Agreement will constitute valid and binding
obligations, enforceable against the Depositor in accordance with their
respective terms, subject as to enforceability to (x) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally, (y) general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or at
law) and (z) with respect to rights of indemnity under this Agreement,
limitations of public policy under applicable securities laws.
4. The execution, delivery and performance of this Agreement, the Pooling
and Servicing Agreement and each Subsequent Transfer Agreement by the Depositor,
the consummation of the transactions contemplated hereby and thereby, and the
issuance and delivery of the Certificates (i) 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, (ii) nor will such actions result in a violation of
the provisions of the articles of incorporation or by-laws of the Depositor,
which breach or violation would have a material adverse effect on the business,
operations or financial condition 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) and (iii)
nor will such actions 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 Pooling and Servicing Agreement.
5. The direction by the Depositor to the Trustee to execute, issue,
authenticate and deliver the Certificates 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 Certificates will be validly issued and
outstanding and will be entitled to the benefits of the Pooling and Servicing
Agreement.
6. No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body of the United
States is required for the issuance of the Certificates, and the sale of the
Offered Certificates to the Underwriters, or the consummation by the Depositor
of the other transactions contemplated by this Agreement and the Pooling and
Servicing Agreement, except such consents, approvals, authorizations,
registrations or qualifications as may be required under the 1933 Act or State
securities or Blue Sky laws in connection with the purchase and distribution of
the Offered Certificates by the Underwriters or as have been previously
obtained.
7. There are no actions, proceedings or investigations pending with respect
to which the Depositor has received service of process before or, to the best of
such counsel's knowledge, without independent investigation, to the best of such
counsel's knowledge without independent investigation, threatened by any court,
administrative agency or other tribunal to which the Depositor is a party or of
13
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) asserting the invalidity
of the Pooling and Servicing Agreement or the Certificates; (c) seeking to
prevent the issuance of the Certificates or the consummation by the Depositor of
any of the transactions contemplated by the Pooling and Servicing Agreement or
this Agreement, as the case may be; or (d) which might materially and adversely
affect the performance by the Depositor of its obligations under, or the
validity or enforceability of, the Pooling and Servicing Agreement, this
Agreement or the Certificates.
8. The Certificates have been duly and validly authorized and issued, and,
immediately prior to the sale of the Offered Certificates to the Underwriters,
such Certificates are owned by the Depositor, free and clear of all Liens.
9. AMRESCO Residential Capital Markets, Inc. (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 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 and to conduct the business in which it is engaged and to enter into
and perform its obligations under the Transfer Agreements.
10. The Seller is not in violation of its articles of incorporation or
by-laws or in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to which
the Seller is a party or by which it or its properties may be bound, which
default might result in any material adverse changes in the financial condition,
earnings, affairs or business of the Seller or which might materially and
adversely affect the properties or assets, taken as a whole, of the Seller.
11. The Transfer Agreements have been duly authorized, executed and
delivered by the Seller and, assuming the due authorization, execution and
delivery of such agreements by the parties thereto other than the Seller, such
agreements will constitute valid and binding obligations, enforceable against
the Seller in accordance with their respective terms, subject as to
enforceability to (x) bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to creditors' rights
generally (y) general principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law).
12. The execution, delivery and performance of the Transfer Agreements by
the Seller and the consummation of the transactions contemplated thereby 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
Seller is a party or by which the Seller is bound or to which any of the
property or assets of the Seller 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 Seller, nor will such actions result in
a violation of the provisions of the articles of incorporation or by-laws of the
Seller or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Seller 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 Seller.
13. The assignment of rights under each of the Transfer Agreements by the
Seller to the Depositor and by the Depositor to the Trust is effective to permit
the Trustee to exercise the Seller's rights thereunder.
14
H. 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 counsel to the
Underwriters, to the effect that:
1. The Trustee is a banking corporation duly incorporated and validly
existing under the laws of the State of New York.
2. The Trustee has the full corporate trust power to execute, deliver and
perform its obligations under the Pooling and Servicing Agreement.
3. The execution and delivery by the Trustee of the Pooling and Servicing
Agreement and the performance by the Trustee of its obligations under the
Pooling and Servicing Agreement have been duly authorized by all necessary
corporate action of the Trustee.
4. The Pooling and Servicing Agreement is a valid and legally binding
obligation of the Trustee enforceable against the Trustee.
5. The execution and delivery by the Trustee of the Pooling and Servicing
Agreement does not (a) violate the organization certificate of the Trustee or
the By-laws of the Trustee, (b) to such counsel's knowledge, violate any
judgment, decree or order of any New York or United States federal court or
other New York or United States federal governmental authority by which the
Trustee is bound or (c) assuming the non-existence of any judgment, decree or
order of any court or other governmental authority that would be violated by
such execution and delivery, violate any New York or United States federal
statute, rule or regulation or require any consent, approval or authorization of
any New York or United States federal court or other New York or United States
federal governmental authority.
6. The Certificates have been duly authenticated, executed and delivered by
the Trustee.
7. If the Trustee were acting in the stead of either Servicer under the
Pooling and Servicing Agreement as of the date of such opinion, the Trustee
would have the full corporate trust power to perform the obligations of either
Servicer under the Pooling and Servicing Agreement.
8. To the best of such counsel's knowledge, there are no actions,
proceedings or investigations pending or threatened against or affecting the
Trustee before or by any court, arbitrator, administrative agency or other
governmental authority which, if decided adversely to the Trustee, would
materially and adversely affect the ability of the Trustee to carry out the
transactions contemplated in the Pooling and Servicing Agreement.
I. The Underwriters shall have received the favorable opinion or opinions,
dated the date of the Closing Date, of counsel for the Underwriters, with
respect to the issue and sale of the Offered Certificates, this Agreement, the
Prospectus and such other related matters as the Underwriters may reasonably
require.
J. RESERVED.
K. 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 to the extent that the signer of such
certificate has carefully examined the Registration Statement (excluding any
documents incorporated therein by reference), the Pooling and Servicing
Agreement and this Agreement and that, to the best of his or her knowledge based
upon reasonable investigation:
15
1. The representations and warranties of the Depositor in this Agreement,
the Pooling and Servicing Agreement and all related agreements are true and
correct as of the Closing Date; and the Depositor has complied with all
agreements and satisfied all the conditions on its part which are to have been
complied with on or prior to the Closing Date.
2. There has been no amendment or other document filed affecting the
certificate of incorporation or bylaws of the Depositor since November 9, 1995
and no such amendment has been authorized. No event has occurred since June 9,
1997 which has affected the good standing of the Depositor under the laws of the
State of Delaware.
3. There has not occurred any material adverse change, or any development
involving a prospective material adverse change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Depositor from
March 31, 1997.
4. There are no actions, suits or proceedings pending with respect to which
it has received service of process or, to the best of such officer's knowledge,
threatened against or affecting the Depositor which if adversely determined,
individually or in the aggregate, would be reasonably likely to adversely affect
the Depositor's obligations under the Pooling and Servicing Agreement or this
Agreement in any material way; and no merger, liquidation, dissolution or
bankruptcy of the Depositor is pending or contemplated.
L. 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 Certificates by the Trustee thereunder and such other matters as
the Representative shall reasonably request.
M. RESERVED.
N. The Class A Certificates shall have been rated "Aaa" by ▇▇▇▇▇'▇ and
"AAA" by Fitch and DCR. The Class M-1, Class M-2 and Class B Certificates shall
have been rated "▇▇▇," "▇▇" and "Baa3," respectively, by 's and "AA," "A" and
"BBB," respectively, by Fitch and DCR.
O. The Depositor shall have furnished to the Underwriters such further
information, certificates and documents as the Underwriters may reasonably have
requested not less than three full business days prior to the Closing Date.
P. 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
Certificates as herein contemplated and related proceedings or in order to
evidence the accuracy and completeness of any of the representations and
warranties, or the fulfillment of any of the conditions, herein contained, and
all proceedings taken by the Depositor in connection with the issuance and sale
of the Certificates as herein contemplated shall be satisfactory in form and
substance to the Underwriters and counsel for the Underwriters.
Q. Subsequent to the execution and delivery of this Agreement none of the
following shall have occurred: (i) trading in securities generally on the New
York Stock Exchange, the American Stock Exchange or the over-the counter market
shall have been suspended or minimum prices shall have been established on
either of such exchanges or such market by the Commission, by such exchange or
by any
16
other regulatory body or governmental authority having jurisdiction; (ii) a
banking moratorium shall have been declared by Federal or state authorities;
(iii) the United States shall have become engaged in hostilities, there shall
have been an escalation of hostilities involving the United States or there
shall have been a declaration of a national emergency or war by the United
States; or (iv) there shall have occurred such a material adverse change in
general economic, political or financial conditions (or the effect of
international conditions on the financial markets of the United States shall be
such) as to make it in each of the instances set forth in clauses (i), (ii),
(iii) and (iv) herein, in the reasonable judgment of the 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.
R. The Representative shall have received a letter from Deloitte & Touche,
LLP, dated on or before the Closing Date, in form and substance satisfactory to
the Representative and special counsel for the Underwriters, addressed to each
of the Underwriters to the effect that they have performed certain specified
procedures requested by the Representative with respect to the information set
forth in the Prospectus and certain matters relating to the Depositor.
S. The Representative and special counsel for the Underwriters shall have
received copies of any opinions of counsel supplied to the rating organizations
relating to any matters with respect to the Certificates. Any such opinions
shall be dated the Closing Date and addressed to each of the Underwriters or
accompanied by reliance letters to the Representative or shall state that each
of the Underwriters may rely upon them.
T. RESERVED.
U. There has not occurred any change, or any development involving a
prospective change, in the condition, financial or otherwise, or in the
earnings, business or operations, since December 31, 1996, of the Depositor and
its subsidiaries, that is in the Representative's judgment material and adverse
and that makes it in the Representative's judgment impracticable to market the
Offered Certificates on the terms and in the manner contemplated in the
Prospectus.
V. Counsel for the Originators shall have furnished to the Underwriters
their written opinion addressed to the Underwriters and the Depositor and dated
the Closing Date, in form and substance satisfactory to the Underwriters, to the
effect that the respective Purchase Agreement has been duly authorized, executed
and delivered by such Originator, and assuming the due authorization, execution
and deliver of such agreements by the other parties thereto, constitutes the
legal, valid and binding agreement of such Originator, enforceable against it in
accordance with its terms, subject as to enforceability to (x) bankruptcy,
insolvency, reorganization, moratorium, receivership or other similar laws now
or hereafter in effect relating to creditors' rights generally and (y) the
qualification that the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to equitable defenses and to the
discretion, with respect to such remedies, of the court before which any
proceedings with respect thereto may be brought.
If any condition specified in this Section VI 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 VII.
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.
17
SECTION VII. Payment of Expenses. If the transaction closes, or if the
transaction fails to close other than as a result of a failure of the
Underwriters to perform hereunder, the Depositor, agrees to pay: (a) the costs
incident to the authorization, issuance, sale and delivery of the Certificates
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 (including the Prospectus);
(c) the costs of distributing the Registration Statement as originally filed and
each amendment thereto and any post-effective amendments thereof (including, in
each case, exhibits), the Prospectus and any amendment or supplement to the
Prospectus 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 Certificates under the securities
laws of the several jurisdictions as provided in Section V(G) 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
Representative); (f) any fees charged by securities rating services for rating
the Offered Certificates; (g) the cost of the accountant's letter relating to
the Prospectus except for expenses relating to the accountant's audit of the
loan files; and (h) all other costs and expenses incident to the performance of
the obligations of the Depositor (including costs and expenses of its counsel);
provided that, except as provided in this Section VII, the Underwriters shall
pay their own costs and expenses, including the costs and expenses of their
counsel, any transfer taxes on the Offered Certificates which they may sell and
the expenses of advertising any offering of the Offered Certificates made by the
Underwriters, and the Underwriters shall pay the cost of any accountant's
comfort letters which such Underwriters choose to request relating to any
Computational Materials (as defined herein).
If this Agreement is terminated by the Underwriters in accordance with the
provisions of Section VI or Section XI, whether or not the transactions
contemplated hereunder are consummated, the Depositor shall cause the
Underwriters to be reimbursed for all reasonable out-of-pocket expenses.
SECTION VIII. Indemnification and Contribution. A. The Depositor agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls such Underwriter within the meaning of Section 15 of the Securities Act
or Section 12 of the Exchange Act from and against any and all loss, claim,
damage or liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage, liability or action
relating to purchases and sales of the Offered Certificates), to which such
Underwriter or any such controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, or
any amendment thereof or supplement thereto, (ii) the omission or alleged
omission to state in the Registration Statement 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 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 such Underwriter and each such controlling person promptly upon demand
for any legal or other expenses reasonably incurred by such Underwriter or such
controlling person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Depositor shall not be liable
in any such case to the extent that any such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or alleged untrue
statement or omission or alleged omission made in the Prospectus, or any
amendment thereof or supplement thereto, or the Registration Statement, or any
amendment thereof or supplement thereto, in reliance upon and in conformity with
written information furnished to the Depositor by or on behalf of such
Underwriter specifically for inclusion therein (except to the extent that any
untrue statement or alleged untrue statement or omission or alleged
18
omission is a result of Seller Provided Information which is not accurate and
complete in all material respects). The foregoing indemnity agreement is in
addition to any liability which the Depositor may otherwise have to any
Underwriter or any controlling person of any of such Underwriter.
B. Each Underwriter severally agrees to indemnify and hold harmless the
Depositor, each of its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Depositor
within the meaning of Section 15 of the Securities Act or Section 12 of the
Exchange 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 Prospectus, or any amendment thereof or supplement
thereto, or (ii) the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements in the
Prospectus, when considered in conjunction with the Prospectus, and 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 such
Underwriter specifically for inclusion therein, and shall reimburse the
Depositor and any such director, officer or controlling person for any legal or
other expenses reasonably incurred by the Depositor or any director, officer or
controlling person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred, provided, however, that no Underwriter shall be liable to
the extent that such untrue statements or alleged untrue statement or omission
or alleged omission is a result of Seller Provided Information that is not
accurate and complete in all material respects. The foregoing indemnity
agreement is in addition to any liability which any Underwriter may otherwise
have to the Depositor or any such director, officer or controlling person.
C. Promptly after receipt by any indemnified party under this Section VIII
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 VIII, 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 VIII 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 VIII.
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 VIII 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
19
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 related Underwriter, if the
indemnified parties under this Section VIII consist of one or more Underwriters
or any of its or their controlling persons, or the Depositor, if the indemnified
parties under this Section VIII 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 VIII(A) and (B), shall use its best efforts to cooperate
with the indemnifying party in the defense of any such action or claim. No
indemnifying party shall be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a final
judgment for the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss or
liability by reason of such settlement or judgment.
Notwithstanding the foregoing paragraph, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
D. Computational Materials. Not later than 10:30 a.m. New York City time,
on the business day before the date on which the Current Report relating to the
Certificates is required to be filed by the Depositor with the Commission
pursuant to Section V.M hereof, each Underwriter shall deliver to the Depositor
five complete copies of all materials, if any, provided by such Underwriter to
prospective investors in such Certificates 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, ▇▇▇▇▇▇, Peabody & Co. Incorporated, and ▇▇▇▇▇▇
Structured Asset Corporation, the no-action letter dated May 27, 1994, issued by
the Division of Corporation Finance of the Commission to the Public Securities
Association and the no-action letter of February 17, 1995 issued by the
Commission to the Public Securities Association (collectively, the "▇▇▇▇▇▇/PSA
Letters") and the filing of which is a condition of the relief granted in such
letters (such materials being the "Computational Materials"). Each delivery of
Computational Materials to the Depositor pursuant to this paragraph (a) shall be
effected by delivering four copies of such material to counsel for the Depositor
on behalf of the Depositor and one copy of such materials to the Depositor.
20
E. Each Underwriter severally and not jointly agrees to indemnify and hold
harmless the Depositor, each of the Depositor's officers and directors and each
person who controls the Depositor within the meaning of Section 15 of the
Securities Act and Section 12 of the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement of a material fact contained in the Computational
Materials 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, when considered in
conjunction with the Prospectus, and 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, however, that no Underwriter shall be liable to the extent that such
untrue statements or alleged untrue statement or omission or alleged omission is
a result of Seller Provided Information that is not accurate and complete in all
material respects. The obligations of an Underwriter under this Section VIII (E)
shall be in addition to any liability which such Underwriter may otherwise have.
The procedures set forth in Section VIII (C) shall be equally applicable to
this Section VIII (E).
F. If the indemnification provided for in this Section VIII shall for any
reason be unavailable to or insufficient to hold harmless an indemnified party
under Section VIII (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 related Underwriters on the
other from the offering of the related Offered Certificates or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law or if
the indemnified party failed to give the notice required under Section VIII(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 related Underwriter on the other with respect to the
statements or omissions which resulted in such loss, claim, damage or liability,
or action in respect thereof, as well as any other relevant equitable
considerations.
The relative benefits of an Underwriter and the Depositor shall be deemed
to be in such proportion as the total net proceeds from the offering (before
deducting expenses) received by the Depositor bear to the total underwriting
discounts and commissions received by the related Underwriter from time to time
in negotiated sales of the related Offered Certificates.
The relative fault of an Underwriter and the Depositor shall be determined
by reference to whether the untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied or prepared by the Depositor or by such Underwriter, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission and other equitable
considerations.
The Depositor and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section VIII(F) were to be
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purposes) or by any other method of allocation which does not
take into account the equitable considerations referred to herein. The amount
paid or payable by an indemnified party as a result of the loss, claim, damage
or liability, or action in respect thereof, referred
21
to above in this Section VIII(F) shall be deemed to include, for purposes of
this Section VIII(F), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim.
For purposes of this Section VIII, in no case shall any Underwriter (except
with respect to any document (other than the Computational Materials)
incorporated by reference into the Registration Statement or Prospectus at the
request of such Underwriter and except as may be provided in any agreement among
the Underwriters relating to the offering of the Offered Certificates) be
responsible for any amount in excess of (x) the amount received by such
Underwriter in connection with its resale of the Offered Certificates over (y)
the amount paid by such Underwriter to the Depositor for the Offered
Certificates by such Underwriter hereunder. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
The Depositor and each Underwriter expressly waive, and agree not to
assert, any defense to their respective indemnification and contribution
obligations under this Section VIII which they might otherwise assert based upon
any claim that such obligations are unenforceable under federal or state
securities laws or by reason of public policy.
"Seller-Provided Information" means any computer tape (or other information)
furnished to any Underwriter by the Seller concerning the assets comprising the
Trust.
G. Each Underwriter severally confirms that the information regarding such
Underwriter set forth in the last paragraph on the front cover page of the
Prospectus Supplement and the Computational Materials furnished by such
Underwriter are correct, and, the Depositor acknowledges that such information
constitutes the only information furnished in writing to the Depositor by or on
behalf of any Underwriter specifically for inclusion in the Registration
Statement and the Prospectus.
SECTION IX. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement or
contained in agreements delivered pursuant hereto or 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 Offered Certificates to the Underwriters.
SECTION X. Default by One or More of the Underwriters. If one or more of
the Underwriters participating in the public offering of the Offered
Certificates shall fail at the Closing Date to purchase the Offered Certificates
which it is (or they are) obligated to purchase hereunder (the "Defaulted
Certificates"), then the non-defaulting Underwriters shall have the right,
within 48 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, 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 (as used in this Agreement, the term
"Underwriter" includes any underwriter substituted for an Underwriter under this
Section X). If, however, the Underwriters have not completed such arrangements
within such 48-hour period, then:
(i) if the aggregate original principal amount of Defaulted Certificates
does not exceed 10% of the aggregate original principal amount of the Offered
Certificates to be purchased pursuant to this Agreement, the non-defaulting
Underwriters named in this Agreement shall be obligated to purchase the full
amount thereof in the proportions that their respective underwriting obligations
hereunder bear to the underwriting obligations of all such non-defaulting
Underwriters, or
22
(ii) if the aggregate original principal amount of Defaulted Certificates
exceeds 10% of the aggregate original principal amount of the Offered
Certificates to be purchased pursuant to this Agreement, this Agreement shall
terminate, without any liability on the part of any non-defaulting Underwriters.
No action taken pursuant to this Section X shall relieve any defaulting
Underwriter from the liability with respect to any default of such Underwriter
under this Agreement.
In the event of a default by any Underwriter as set forth in this Section
X, each of the Underwriters and the Depositor shall have the right to postpone
the Closing Date for a period not exceeding seven Business Days in order that
any required changes in the Registration Statement or Prospectus or in any other
documents or arrangements may be effected.
SECTION XI. 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 VI(Q)
of this Agreement shall occur and be continuing. In the event of any such
termination, the provisions of Section VII, the indemnity agreement set forth in
Section VIII, and the provisions of Sections IX and XIV shall remain in effect.
SECTION XII. 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 at its address set forth above;
B. if to the Depositor, shall be delivered or sent by overnight mail or
facsimile transmission to ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇ #▇▇▇, ▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇, Attn.: General Counsel, Fax No. ▇▇▇-▇▇▇-▇▇▇▇.
SECTION XIII. 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 any of 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 XIII, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision contained herein.
SECTION XIV. 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 this
Agreement, shall survive the delivery of and payment for the Certificates and
shall remain in full force and effect, regardless of any investigation made by
or on behalf of any of them or any person controlling any of them. The
provisions of Sections V, VII and VIII hereof shall survive the termination or
cancellation of this Agreement.
SECTION XV. Definition of the Term "Business Day". For purposes of this
Agreement, "Business Day" means any day on which the New York Stock Exchange,
Inc. is open for trading.
23
SECTION XVI. 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 XVII. 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 XVIII. 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.
SECTION XIX. Amendments and Waivers. This Agreement may be amended,
modified, altered or terminated, and any of its provisions waived, only in a
writing signed on behalf of the Depositor and the Representative.
24
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,
AMRESCO RESIDENTIAL SECURITIES
CORPORATION
/s/ ▇▇▇▇▇▇ ▇. Cott
By:--------------------------------------
Name: ▇▇▇▇▇▇ ▇. Cott
Title: Vice President
CONFIRMED AND ACCEPTED, as
of the date first above written:
PRUDENTIAL SECURITIES INCORPORATED
Acting on its own behalf and as
Representative of the several
Underwriters referred to in the
foregoing Agreement
/s/ ▇▇▇▇ Low
By:------------------------------
Name: ▇▇▇▇ Low
Title: Vice President
SCHEDULE A
Class of Certificates Initial Principal Amount of Purchase
Name of Purchased by the Certificates Purchased by Price
Underwriter Underwriters Underwriters (% of Par)
----------- ------------ ------------ ----------
Prudential Securities
Incorporated
A-1 $29,270,850 99.96875%
A-2 $26,700,000 100.00000%
A-3 $40,853,616 99.98438%
A-4 $16,737,384 99.98438%
A-5 $12,776,006 99.96875%
A-6 $8,938,603 99.98438%
A-7 $22,174,601 99.95313%
A-8 $17,340,000 100.00000%
A-9 $200,854,200 100.00000%
M-1F $7,489,859 99.96875%
M-1A $15,262,800 100.00000%
M-2F $10,987,283 99.98438%
M-2A $14,652,000 100.00000%
B-1F $6,491,771 99.96875%
B-1A $13,431,000 100.00000%
-----------
TOTAL $
Credit Suisse First Boston
A-1 $9,756,950 99.96875%
A-2 $8,900,000 100.00000%
A-3 $13,617,872 99.98438%
A-4 $5,579,128 99.98438%
A-5 $4,258,669 99.96875%
A-6 $2,979,534 99.98438%
A-7 $7,391,534 99.95313%
A-8 $5,780,000 100.00000%
A-9 $66,951,400 100.00000%
M-1F $2,496,620 99.96875%
M-1A $5,087,600 100.00000%
M-2F $3,662,428 99.98438%
M-2A 4,884,000 100.00000%
B-1F $2,163,924 99.96875%
B-1A $4,477,000 100.00000%
----------
TOTAL: $
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated
A-1 $$9,756,950 99.96875%
A-2 $8,900,000 100.00000%
A-3 $13,617,872 99.98438%
A-4 $5,579,128 99.98438%
A-5 $4,258,669 99.96875%
A-6 $2,979,534 99.98438%
A-7 $7,391,534 99.95313%
A-8 $5,780,000 100.00000%
A-9 $66,951,400 100.00000%
M-1F $2,496,620 99.96875%
M-1A $5,087,600 100.00000%
M-2F $3,662,428 99.98438%
M-2A $4,884,000 100.00000%
B-1F $2,163,924 99.96875%
B-1A $4,477,000 100.00000%
----------
TOTAL $739,933,287.50
TOTAL: $