AMRESCO RESIDENTIAL SECURITIES CORPORATION
AND
CS FIRST BOSTON
As Representative of the several Underwriters
UNDERWRITING AGREEMENT
FOR
AMRESCO RESIDENTIAL SECURITIES CORPORATION MORTGAGE LOAN TRUST
1996-4
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 ADJUSTABLE RATE CERTIFICATES
August 16, 1996
AMRESCO RESIDENTIAL SECURITIES CORPORATION MORTGAGE LOAN TRUST
1996-4
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 ADJUSTABLE RATE CERTIFICATES
UNDERWRITING AGREEMENT
August 16, 1996
CS First Boston
as Representative of the
several Underwriters
55 East 52nd Street
New York, New York 10055
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 and Class A-6 (the
"Offered Certificates") and the Class B-IO and the Class R
Certificates (the "Subordinated 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 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. CS First Boston 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 August 1, 1996 among the Depositor, AMRESCO
Residential Mortgage Corporation, as Seller (the "Seller"),
Advanta Mortgage Corp. USA ("Advanta"), Long Beach Mortgage
Company ("Long Beach") and Option One Mortgage Corporation
("Option One") as Servicers (the "Servicers") and Bankers Trust
Company, 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,
(i) from Long Beach, pursuant to a Continuing Loan Purchase
Agreement dated November 1, 1995 between Long Beach, as seller
and the Seller, as buyer, as supplemented by the Supplement dated
August 28, 1996 (the "Long Beach Purchase Agreement"), (ii) from
Walsh Securities, Inc. ("Walsh"), pursuant to a Loan Purchase
Agreement dated as of May 10, 1996, between Walsh, as seller and
the Seller, as buyer, as supplemented by the Supplement dated
August 28, 1996 (the "Walsh Purchase Agreement"), (iii) from New
Century Mortgage Corporation ("New Century"), pursuant to a
Continuing Loan Purchase Agreement dated April 5, 1996 between
New Century, as seller and the Seller, as buyer (the "New Century
Purchase Agreement"), (iv) from Berkeley Federal Bank & Trust,
FSB ("Berkeley") pursuant to a Loan Purchase Agreement dated
March 20, 1996 between Berkeley, as seller and the Salomon
Brothers Realty Corp., as buyer, as assigned pursuant to that
certain Assignment, Assumption and Recognition Agreement dated
July 15, 1996 between Salomon Brothers Realty Corp., as seller
and the Seller, as buyer, as supplemented by the Supplement dated
August 28, 1996 (the "Berkeley Purchase Agreement"), (v) from
Option One pursuant to a Continuing Loan Purchase Agreement dated
March 1, 1996 between Option One, as seller and the Seller, as
buyer, as supplemented by the Supplement dated August 28, 1996
(the "Option One Purchase Agreement") and (vi) from First Colony
Financial Group ("First Colony") pursuant to the Continuing Loan
Purchase Agreement dated August 15, 1996 (the "First Colony
Transfer Agreement") between First Colony, as seller and the
Seller, as buyer, the "First Colony Purchase Agreement" and
together with the Long Beach Purchase Agreement, the Walsh
Purchase Agreement, the New Century Purchase Agreement, the
Option One Purchase Agreement and the Berkeley Purchase
Agreement, collectively, the "Mortgage Loan Purchase
Agreements"). On the Closing Date, approximately $41,000,000
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 20, 1996 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 $270,080,368.77 as of the close of business
on August 1, 1996 (the "Cut-Off Date") and (ii) approximately
$41,000,000 on deposit in the Pre-Funding Account. The Offered
Certificates will also have the benefit of two Certificate
Insurance Policies (the "Certificate Insurance Policies") issued
by MBIA Insurance Corporation, a New York stock insurance company
(the "Certificate Insurer"). The Certificate Insurance Policies
will be issued pursuant to the insurance agreement (the
"Insurance Agreement") dated as of August 28, 1996 among the
Certificate Insurer, the Depositor and the Trustee. 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.
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
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 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 and the Insurance 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 Insurance 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, the Insurance 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, this Agreement, and the
Insurance 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, each Subsequent Transfer Agreement and the Insurance
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 and the Insurance 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 and the Insurance Agreement, limitations of public
policy under applicable securities laws.
H. The execution, delivery and performance of this
Agreement, the Pooling and Servicing Agreement, any Subsequent
Transfer Agreement and the Insurance 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, the Pooling and Servicing
Agreement and the Insurance Agreement or (ii) the business,
operations, results of operations, financial position, income,
properties or assets of the Depositor.
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, any Subsequent
Transfer Agreement and the Insurance 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, the
Mortgage Loan Purchase Agreements 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 Offered Certificates shall
have been rated in the highest rating category by at least two
nationally recognized rating agencies.
R. Any taxes, fees and other governmental charges in
connection with the execution, delivery and issuance of this
Agreement, the Pooling and Servicing Agreement, the Insurance
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 and the Insurance 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.
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.
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 Arter & Hadden, Washington, District of
Columbia or at such other place as shall be agreed upon by the
Representative and the Depositor at 10:00 A.M. District of
Columbia time on August 28, 1996 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. New
York City time on the first business day prior to the Closing
Date.
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.
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 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 and will
cause to be delivered to the Trustee the Insurance Policies
issued by the Certificate Insurer.
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
Kidder/PSA Letters (as defined in Section VIII.D below).
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 Stroock, Stroock &
Lavan, 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 Insurance
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.
D. Arter & Hadden 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.
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 Certificates" and in the
Prospectus Supplement under the captions "Description of The
Class A 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 Considerations,"
"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 Mortgage
Loan Purchase 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 and the Class B-IO 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 Offered Certificates are rated at the
time of issuance in one of the two highest rating categories by a
nationally recognized statistical rating organization, the
Offered 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. 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 (except as to
statements set forth in the Prospectus Supplement under the
caption "The Certificate Insurer"); 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 Arter & Hadden, special
counsel to the Depositor, addressed to the Depositor and
satisfactory to the Certificate Insurer, Standard & Poor's, A
Division of The McGraw-Hill Companies, Moody's Investors Service
Inc., Fitch Investors Service, L.P. 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 the Certificate Insurer, Standard & Poor's, A Division
of The McGraw-Hill Companies, Moody's Investors Service Inc.,
Fitch Investors Service, L.P. and the Underwriters as though such
opinion had been addressed to each such party.
F. Dewey Ballantine, counsel for Advanta, Thacher Proffitt
& Wood, counsel for Long Beach and Morrison & Foerster, counsel
for Option One, 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. The Servicers are each validly existing in good
standing as a corporation under the laws of their States of
incorporation.
2. Each of the Servicers 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.
3. The Pooling and Servicing Agreement and the Insurance
Agreement have been duly authorized, executed and delivered by
the Servicers, and, assuming the due authorization, execution and
delivery of such agreements by the other parties thereto,
constitute the legal, valid and binding agreements of the
Servicers, 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 either of
the Servicers is required for the consummation by either of them
of the transactions contemplated by the Pooling and Servicing
Agreement and the Insurance Agreement, except such consents,
approvals, authorizations, registrations and qualifications as
have been obtained.
5. The execution, delivery or performance by each of the
Servicers of the Pooling and Servicing Agreement or the Insurance
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 the Servicers before
any court, administrative agency or other tribunal (a) asserting
the validity of the Pooling and Servicing Agreement, the
Insurance 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, or the Insurance 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, the Pooling and Servicing Agreement or the Insurance
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, the Pooling and Servicing Agreement and the Insurance
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 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, the Pooling and Servicing Agreement,
the Indemnification Agreement dated as of August 28, 1996 among
the Depositor and each of the Underwriters (the "Indemnification
Agreement") and the Insurance 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 and the Insurance Agreement,
limitations of public policy under applicable securities laws.
4. The execution, delivery and performance of this
Agreement, the Pooling and Servicing Agreement, the Insurance
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, the Pooling and Servicing Agreement and the Insurance
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 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, the
Insurance 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, the Insurance 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, the Insurance 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 Mortgage Corporation (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
Mortgage Loan Purchase 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 Mortgage Loan Purchase 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 Mortgage
Loan Purchase 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 the Mortgage Loan
Purchase 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.
H. The Underwriters shall have received the favorable
opinion of counsel (which may be in-house 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 association duly incorporated
and validly existing under the laws of the United States of
America.
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 California or United States federal court
or other California 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 California or United States federal
statute, rule or regulation or require any consent, approval or
authorization of any California or United States federal court or
other California 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. The Underwriters shall have received the favorable
opinion dated the Closing Date, from Kutak Rock, counsel to the
Certificate Insurer in form and scope satisfactory to counsel for
the Underwriters, substantially to the effect that:
1. The Certificate Insurer is a stock insurance
corporation duly incorporated, validly existing, and in good
standing under the laws of the State of New York. The Certificate
Insurer is validly licensed and authorized to issue the
Certificate Insurance Policies and perform its obligations under
the Insurance Agreement in accordance with the terms thereof,
under the laws of the State of New York.
2. The Certificate Insurer has the corporate power to
execute and deliver, and to take all action required of it under
the Insurance Agreement and the Certificate Insurance Policies.
3. The execution, delivery and performance by the
Certificate Insurer of the Certificate Insurance Policies and
Insurance Agreement is within the corporate power of the
Certificate Insurer and has been authorized by all necessary
corporate action on the part of the Certificate Insurer, and does
not require the consent or approval of, the giving of notice to,
the prior registration with, or the taking of any other action in
respect of any state or other governmental agency or authority
which has not previously been obtained or effected.
4. The Certificate Insurance Policies and Insurance
Agreement have been duly authorized, executed and delivered by
the Certificate Insurer and constitute the legal, valid and
binding agreement of the Certificate Insurer, enforceable against
the Certificate Insurer in accordance with its terms subject, as
to enforcement, to (x) bankruptcy, reorganization, insolvency,
moratorium and other similar laws relating to or affecting the
enforcement of creditors' rights generally, including, without
limitation, laws relating to fraudulent transfers or conveyances,
preferential transfers and equitable subordination, presently or
from time to time in effect and general principles of equity
(regardless of whether such enforcement is considered in a
proceeding in equity or at law), as such laws may be applied in
any such proceeding with respect to the Certificate Insurer and
(y) the qualification that the remedy of specific performance and
other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any
proceedings with respect thereto may be brought.
5. To the extent the Certificate Insurance Policies
constitutes a security within the meaning of Section 2(1) of the
Securities Act, it is a security that is exempt from the
registration requirements of the Act.
6. The information set forth under the caption "THE
CERTIFICATE INSURANCE POLICIES AND THE CERTIFICATE INSURER" in
the Prospectus Supplement, insofar as such information
constitutes a description of the Certificate Insurance Policies,
accurately summarizes the Certificate Insurance Policies.
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:
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 August 19, 1996 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 June 30, 1996.
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. The Certificate Insurance Policies and the Insurance
Agreement shall have been issued by the Certificate Insurer and
shall have been duly authenticated by an authorized agent of the
Certificate Insurer, if so required under applicable state law or
regulations.
N. The Offered Certificates shall have been rated "AAA" by
Standard & Poor's, "Aaa" by Moody's Investors Service and "AAA"
by Fitch Investors Service, L.P.
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 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. On or prior to the Closing Date there shall not have
occurred any downgrading, nor shall any notice have been given of
(A) any intended or potential downgrading or (B) any review or
possible change in rating the direction of which has not been
indicated, in the rating accorded the Certificate Insurer's
claims paying ability by any "nationally recognized statistical
rating organization," as such term is defined for purposes of the
Securities Act.
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 June
30, 1996, of (A) the Depositor and its subsidiaries or (B) the
Certificate Insurer, 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.
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; (h) the fees and expenses
of the Certificate Insurer (other than the fees payable pursuant
to the Pooling and Servicing Agreement) and (i) 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.
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 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.
A. 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.
B. 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
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.
C. 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 Kidder, Peabody
Acceptance Corporation I, Kidder, Peabody & Co. Incorporated, and
Kidder 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 "Kidder/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.
D. Each Underwriter severally and not jointly agrees,
assuming all Seller Provided Information is accurate and complete
in all material respects, to indemnify and hold harmless the
Depositor, each of the Depositor's officers and directors and
each person who controls the Depositor within the meaning of
Section 15 of the Securities Act 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).
E. 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 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.
F. 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.
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.
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
(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.
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.
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 700 North Pearl
Street, Suite 2400, LB #342, Dallas, TX 75201-7424, Attn.:
General Counsel, Fax No. 214-953-7757.
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.
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.
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.
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.
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.
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.
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.
XX.
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
By:
Name:
Title:
CONFIRMED AND ACCEPTED, as
of the date first above written:
CS FIRST BOSTON
Acting on its own behalf and as
Representative of the several
Underwriters referred to in the
foregoing Agreement
By:
Name:
Title:
SCHEDULE A
Class of Initial Purchase
Name of Certificates Principal Amount Price
Underwriter Purchased by the of Certificates (% of Par)
Underwriters Purchased by
Underwriters
CS First Boston Class A-1 $5,040,000 99.560000%
Class A-2 $12,320,000 99.571875
Class A-3 $9,680,000 99.530000
Class A-4 $5,869,000 99.584375
Class A-5 $7,205,000 99.306250
Class A-6 $130,981,000 99.720000
Prudential
Securities Class A-1 $3,207,000 99.560000%
Incorporated
Class A-2 $7,840,000 99.571875
Class A-3 $6,160,000 99.530000
Class A-4 $3,734,000 99.584375
Class A-5 $4,585,000 99.306250
Class A-6 $83,351,000 99.720000
Goldman Sachs & Class A-1 $916,000 99.560000%
Co.
Class A-2 $2,240,000 99.571875
Class A-3 $1,760,000 99.530000
Class A-4 $1,067,000 99.584375
Class A-5 $1,310,000 99.306250
Class A-6 $23,814,000 99.720000