Exhibit 10.81
Credit Suisse First Boston Mortgage Securities Corp.
(Depositor)
$380,000,000
ABFS MORTGAGE LOAN TRUST 2002-2
Mortgage Pass-Through Certificates
Series 2002-2
INDEMNIFICATION AGREEMENT
June 21, 2002
Credit Suisse First Boston Mortgage Securities Corp.
Eleven Madison Avenue, 4th Floor
New York, New York 10010
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Credit Suisse First Boston Corporation,
for itself and as Representative for the Underwriters
Eleven Madison Avenue, 4th Floor
New York, New York 10010
Attention: Transactions Advisory Group
Ladies and Gentlemen:
1. Introductory. Credit Suisse First Boston Mortgage
Securities Corp., a corporation organized and existing under the laws of the
State of Delaware (the "Depositor"), proposes to sell to the Underwriters (as
defined below) eleven (11) classes of Mortgage Pass-Through Certificates, Series
2002-2. Such classes have been designated as the Class A-1, Class A-2, Class
A-3, Class A-4, Class A-5, Class A-6, Class A-7, Class A-IO, Class M-1, Class
M-2 and Class B Certificates (collectively, the "Offered Certificates"). Two
classes of certificates (Class X and Class R) (together, the "Non-Offered
Certificates") will also be issued but not offered for sale. Only the Offered
Certificates are being purchased by the Underwriters. The Offered Certificates
and the Non-Offered Certificates will represent the entire beneficial ownership
interest in the ABFS Mortgage Loan Trust 2002-2 (the "Trust"). The assets of the
Trust will consist primarily of a pool of certain home equity loans (the
"Mortgage Loans") conveyed to the Trust by the Depositor pursuant to a Pooling
and Servicing Agreement, dated as of June 1, 2002 (the "Pooling and Servicing
Agreement"), among the Depositor, American Business Credit, Inc., as servicer
("ABC") and JPMorgan Chase Bank, as trustee (the "Trustee"), with an aggregate
principal balance expected to be approximately $380,000,000 as of June 27, 2002
(the "Closing Date"). The Mortgage Loans and other property conveyed by the
Depositor to the Trust will first be transferred to the Depositor by ABFS
2002-2, Inc. a Delaware corporation (the "Seller") pursuant to the Unaffiliated
Seller's Agreement, dated as of June 1, 2002 (the "Unaffiliated Seller's
Agreement"), among the Depositor, the Seller, ABC, American Business Mortgage
Services Inc. ("ABMS") and HomeAmerican Credit Inc. d/b/a Upland Mortgage
("Upland" and, together with ABC and ABMS, the "Originators" and, together with
the Seller, the "ABFS Entities").
The Mortgage Loans and other property to be sold by the Seller
to the Depositor will be purchased by the Seller from the Originators pursuant
to the Unaffiliated Seller's Agreement.
The Certificates are to be issued pursuant to the Pooling and
Servicing Agreement, and are more fully described in the Prospectus Supplement,
dated as of June 21, 2002 relating to the Offered Certificates (together with
the Prospectus attached thereto, the "Prospectus"), which the Depositor has
furnished to the Underwriters. The Depositor will elect to treat the Trust as
one or more "real estate mortgage investment conduits" under the Internal
Revenue Code of 1986, as amended.
The Depositor on the date hereof will enter into an
underwriting agreement dated the date hereof (the "Underwriting Agreement") with
Credit Suisse First Boston Corporation as representative (the "Representative")
for itself and the several underwriters listed on Schedule I thereto (the
"Underwriters") relating to the sale of the Offered Certificates.
The Pooling and Servicing Agreement, the Unaffiliated Seller's
Agreement, and the Underwriting Agreement shall be collectively defined herein
as the "Basic Documents."
Capitalized terms used herein and not otherwise defined shall
have the meanings given them in the Underwriting Agreement.
2. Representations and Warranties of the ABFS Entities. Each
of the ABFS Entities represents and warrants to, and agrees with, each of the
Depositor and the Underwriters that:
(a) The Seller has been duly organized and is validly existing
as a corporation in good standing under the laws of the State of Delaware and
each of the Originators has been duly organized and is validly existing as a
corporation in good standing under the laws of the state of its incorporation.
Each of the ABFS Entities (i) has corporate power and authority to own, lease
and operate its respective properties and conduct its respective businesses as
described or incorporated in the Prospectus and to enter into and perform its
obligations under each of the Basic Documents to which it is a party; and (ii)
is duly qualified to do business as a foreign corporation and is in good
standing in each jurisdiction in which the character of the business transacted
by it or properties owned or leased by it requires such qualification and in
which the failure so to qualify is reasonably likely to have a material adverse
effect on its respective business, properties, assets, or condition (financial
or other) or on its ability to perform its obligations under any of the Basic
Documents to which it is a party;
(b) None of the ABFS Entities is in violation of its
respective certificate of incorporation, certificate of formation, articles of
association, by-laws, operating agreements or other constituent agreements, or
in default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which any of the ABFS
Entities is a party or by which each or any of the ABFS Entities' properties may
be bound, which default is reasonably likely to result in any material adverse
change in the financial condition, earnings, affairs or business of any of the
ABFS Entities or which is reasonably likely to materially and adversely affect
the properties or assets of any of the ABFS Entities or the ability of any of
the ABFS Entities to perform its obligations under any of the Basic Documents to
which it is a party;
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(c) The execution and delivery by the ABFS Entities on the
date hereof of this Agreement and by each ABFS Entity on the Closing Date of the
Basic Documents to which it is a party, and the performance of each of their
respective obligations hereunder or thereunder, will be within the corporate
power of each of the ABFS Entities and duly authorized by all necessary
corporate action on the part of each of the ABFS Entities on and as of the date
hereof with respect to this Agreement or on and as of the Closing Date with
respect to the Basic Documents; and neither the issuance and sale of the Offered
Certificates to the Underwriters, nor the execution and delivery by any of the
ABFS Entities of this Agreement or any of the Basic Documents to which any of
the ABFS Entities is a party, nor the consummation by any of the ABFS Entities
of the transactions herein or therein contemplated, nor compliance by any of the
ABFS Entities with the provisions hereof or thereof, will materially conflict
with or result in a material breach of, or constitute a material default under,
any of the provisions of any law, governmental rule, regulation, judgment,
decree or order binding on any of the ABFS Entities or their respective
properties or certificate of incorporation, articles of association, certificate
of formation, by-laws, operating agreements or other constituent agreements of
any of the ABFS Entities or any of the provisions of any material indenture,
mortgage, contract or other instrument to which any of the ABFS Entities is a
party or by which any of the ABFS Entities is bound or result in the creation or
imposition of any lien, charge or encumbrance upon any of its properties
pursuant to the terms of any such material indenture, mortgage, contract or
other instrument;
(d) Each of the ABFS Entities possesses all material licenses,
certificates, authorities or permits issued by the appropriate state, federal or
foreign regulatory agencies or bodies necessary to conduct the businesses now
operated by them and as described in the Prospectus, other than such licenses,
certificates, authorities or permits the failure of which to possess will not
have a material adverse effect on the interests of holders of the Certificates
under the Pooling and Servicing Agreement and none of the ABFS Entities has
received any notice of proceedings relating to the revocation or modification of
any such license, certificate, authority or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, will
materially and adversely affect the conduct of the business, operations,
financial condition or income of any of the ABFS Entities or its ability to
perform its respective obligations under any of the Basic Documents to which it
is a party;
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(e) As of the Closing Date, each consent, approval,
authorization or order of, or filing with, any court or governmental agency or
body that is required to be obtained or made by any of the ABFS Entities or
their respective subsidiaries for the consummation of the transactions
contemplated by this Agreement and the Basic Documents shall have been obtained
or made, except for such consents, approvals, authorizations, registrations or
qualifications, if any, as may be required under state securities laws and Blue
Sky laws;
(f) This Agreement has been duly authorized, executed and
delivered by each of the ABFS Entities, and constitutes a legal, valid and
binding instrument enforceable against each of the ABFS Entities in accordance
with its terms, subject (x) to applicable bankruptcy, reorganization,
insolvency, moratorium or other similar laws affecting creditors' rights
generally, (y) as to enforceability, to general principles of equity (regardless
of whether enforcement is sought in a proceeding in equity or at law) and (z) as
to enforceability with respect to rights of indemnity thereunder, to limitations
of public policy under applicable securities laws;
(g) The Offered Certificates, when duly and validly authorized
by the Depositor, and, when executed and authenticated as specified in the
Pooling and Servicing Agreement, will be validly issued and outstanding and will
be entitled to the benefits of the Pooling and Servicing Agreement;
(h) There are no legal or governmental proceedings to which
any of the ABFS Entities is a party or of which any property of any of the ABFS
Entities is the subject (i) asserting the invalidity of this Agreement, the
Offered Certificates or any of the Basic Documents, (ii) seeking to prevent the
issuance of the Offered Certificates or the consummation of any of the
transactions contemplated by this Agreement or any Basic Document, (iii) which
will materially and adversely affect the performance by any of the ABFS
Entities, of their respective obligations under, or the validity or
enforceability of, this Agreement, the Offered Certificates or the Basic
Documents, as applicable, (iv) seeking to affect adversely the federal income
tax attributes of the Offered Certificates described in the Prospectus or (v)
which will, individually or in the aggregate, have a material adverse effect on
any of the ABFS Entities; and, to the best of any of the ABFS Entities'
knowledge, no such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(i) None of the ABFS Entities is, and, after giving effect to
the offering and sale of the Offered Certificates and other transactions
contemplated thereby, none of the ABFS Entities will be, an "investment company"
or an entity "controlled" by an "investment company", as such terms are defined
in the Investment Company Act of 1940, as amended (the "Investment Company
Act");
(j) As of the close of business on May 31, 2002 (the "Cut-off
Date"), the computer tape of the Mortgage Loans made available to the
Representative by American Business Credit, Inc., or by any of the other ABFS
Entities or their affiliates, was accurate in all material respects;
(k) No selection procedures adverse to the holders of the
Offered Certificates were utilized in selecting those Mortgage Loans transferred
(x) by the Originators to the Seller, and (y) from the Seller to the Depositor
from those mortgage loans available therefor;
(l) Each of the ABFS Entities represents and warrants that it
has made available to the Underwriters copies of consolidated financial
statements for the fiscal year ended June 30, 2001 of American Business
Financial Services, Inc. ("ABFS"). Except as set forth in or contemplated in the
Prospectus or in any publicly available records filed with the Securities and
Exchange Commission (the "Commission") or as described by ABFS in any press
releases of general distribution, copies of which have been made available to
you, there has been no material adverse change in the condition (financial or
otherwise) of ABFS since June 30, 2001;
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(m) Any taxes, fees and other governmental charges arising
from the execution and delivery by any of the ABFS Entities of this Agreement,
the Pooling and Servicing Agreement and the Unaffiliated Seller's Agreement, and
in connection with the execution and delivery of the Underwriting Agreement and
the execution, delivery and issuance of the Offered Certificates, have been paid
or will be paid by ABFS Entities prior to the Closing Date;
(n) Since the respective dates as of which information is
given in the Prospectus, there has not been any change, or any development
involving a prospective change, in or affecting any of the ABFS Entities (other
than as contemplated in the Prospectus) which would be expected to have a
material adverse effect on the ability of such person to consummate the
transactions contemplated by, or to perform its respective obligations under,
this Agreement or any of the Basic Documents to which such ABFS Entity is a
party;
(o) In accordance with generally accepted accounting
principles, as currently in effect, each of the relevant ABFS Entities party to
the Unaffiliated Seller's Agreement and the Pooling and Servicing Agreement will
treat the transactions contemplated by such agreements as a sale of the Mortgage
Loans to the respective purchasers;
(p) The Seller Information (as defined in Section 4 hereof) as
of the date hereof or as of the Closing Date does not contain or will not
contain an untrue statement of a material fact or does not omit or will not omit
to state a material fact required to be stated in the Prospectus or necessary to
make the statements therein not misleading;
(q) The characteristics of the Trust will not subject the
Trust to registration as an investment company under the Investment Company Act;
and
(r) As of the Closing Date, each of the respective
representations and warranties of each of the ABFS Entities set forth in the
Basic Documents will be true and correct, and the Depositor and the Underwriters
may rely on such representations and warranties as if they were set forth herein
in full.
All representations, warranties and agreements made herein
shall be deemed made as of the date hereof and as of the Closing Date; provided,
however, that to the extent any representation or warranty relates to a specific
date, such representation and warranty shall be deemed to continue to relate to
such date.
3. Agreements of the ABFS Entities. Each of the ABFS Entities
hereby acknowledges and agrees to the pricing of the Offered Certificates set
forth in the Underwriting Agreement and covenants to use best efforts to
satisfy, or cause to be satisfied, all of the conditions precedent set forth in
Section 6 of the Underwriting Agreement. Each of the ABFS Entities further
agrees that on the Closing Date it shall sell, transfer and assign, or shall
cause to be sold, transferred or assigned, pursuant to the Unaffiliated Seller's
Agreement, the Mortgage Loans having the characteristics described in the
Prospectus. Each of the ABFS Entities further acknowledges that the obligations
of the Underwriters to purchase the Offered Certificates are subject to the
satisfaction of all of the terms and conditions set forth in the Underwriting
Agreement.
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4. Indemnification and Contribution. (a) Each of the ABFS
Entities hereby agrees, jointly and severally, to indemnify and hold harmless
the Depositor, each Underwriter, their respective partners, directors and
officers, and each person, if any, who controls such Depositor or Underwriter
within the meaning of Section 15 of the Act, from and against any and all
losses, claims, damages or liabilities, joint or several, to which such
Depositor or Underwriter or any such controlling person may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon (i)
any untrue statement or alleged untrue statement made by the ABFS Entities in
any of the representations and warranties contained in Section 2 hereof or any
failure of the ABFS Entities to perform its obligations hereunder; or (ii) an
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus; or (iii) the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein in the light of the circumstances under
which they were made not misleading, in each case to the extent, but only to the
extent, that such losses, claims, damages or liabilities (or actions in respect
thereof) arise out or are based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in, or omitted from, the
Registration Statement or the Prospectus in reliance upon and in conformity with
Seller Information (as defined below); and the ABFS Entities will promptly
reimburse the Depositor, each Underwriter, their respective directors and
officers and each person who controls the Depositor or Underwriter within the
meaning of Section 15 of the Act, for any legal or other expenses reasonably
incurred by the Depositor or any Underwriter and such other indemnified persons
in connection with investigating, preparing or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that such indemnity with regard to any Prospectus shall not inure to the benefit
of any Underwriter (or any person controlling such Underwriter) from whom the
person asserting any such loss, claim, damage or liability purchased the Offered
Certificates concerned, to the extent that a prospectus relating to such Offered
Certificates was required to be delivered by such Underwriter under the Act in
connection with such purchase, and any such loss, claim, damage or liability of
such Underwriter results from the fact that there was not sent of given to such
person, at or prior to the written confirmation of the sale of such Offered
Certificates to such person, a copy of the Prospectus (or, in the event the
Prospectus is amended or supplemented prior to the Closing Date, such Prospectus
as amended or supplemented) if copies thereof had previously been furnished
copies to such Underwriter. The foregoing indemnity agreement is in addition to
any liability which the ABFS Entities may otherwise have to the Underwriters or
any person who controls such Underwriter.
(b) The Depositor will indemnify and hold harmless each of the
ABFS Entities, their respective directors and officers and each person, if any,
who controls the ABFS Entities within the meaning of Section 15 of the Act,
against any losses, claims, damages or liabilities to which the ABFS Entities
may become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon (i) an untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus, or (ii) the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein in the light of the
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circumstances under which they were made not misleading, in each case to the
extent, but, only to the extent, that such losses, claims, damages or
liabilities (or actions in respect thereof) arise out or are based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in the Registration Statement or the Prospectus in reliance upon and in
conformity with Depositor Information (as defined below), and provided that such
Depositor Information was not based upon Company Collateral Information; and the
Depositor will reimburse the ABFS Entities, their respective directors and
officers and each person who controls the ABFS Entities within the meaning of
Section 15 of the Act, for any legal or other expenses reasonably incurred by
the ABFS Entities and such other indemnified persons in connection with
investigating, preparing or defending any such loss, claim, damage, liability or
action as such expenses are incurred. The foregoing indemnity agreement is in
addition to any liability which such Depositor may otherwise have to the ABFS
Entities.
(c) Each Underwriter will severally and not jointly indemnify
and hold harmless the ABFS Entities, their respective directors and officers and
each person, if any, who controls the ABFS Entities within the meaning of
Section 15 of the Act, against any losses, claims, damages or liabilities to
which the ABFS Entities may become subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon (i) an untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or any related preliminary
prospectus, or (ii) the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
in the light of the circumstances under which they were made not misleading, in
each case to the extent, but, only to the extent, that such losses, claims,
damages or liabilities (or actions in respect thereof) arise out or are based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in the Registration Statement or the Prospectus in reliance upon
and in conformity with Underwriter Information and provided that such
Underwriter Information was not based upon Company Collateral Information (as
defined herein); and will reimburse the ABFS Entities, their respective
directors and officers and each person who controls the ABFS Entities within the
meaning of Section 15 of the Act, for any legal or other expenses reasonably
incurred by the ABFS Entities and such other indemnified persons in connection
with investigating, preparing or defending any such loss, claim, damage,
liability or action as such expenses are incurred. The foregoing indemnity
agreement is in addition to any liability which such Underwriter may otherwise
have to the ABFS Entities.
(d) Promptly after receipt by an indemnified party under
subsection (a), (b) or (c) above of notice of any claim or the commencement of
any action, such indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party under such subsection, notify the
indemnifying party, in writing, of the claim or commencement thereof; provided,
however, that the failure to notify an indemnifying party shall not relieve the
indemnifying party from any liability which it may have under such subsection
except to the extent that it has been materially prejudiced by such failure and,
provided, further, that the failure to notify any indemnifying party shall not
relieve the indemnifying party from any liability which it may have to any
indemnified party otherwise than under such subsection. In case any such action
shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who may
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be counsel to the indemnifying party), and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense thereof
and after acceptance by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party under this Section for any legal or
other expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation; provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party, and the indemnified party shall have been
advised in writing (with a copy to the indemnifying party) by counsel that
representation of such indemnified party and the indemnifying party is
inappropriate under applicable standards of professional conduct due to actual
or potential differing interests between them, the indemnified party or parties
shall have the right to select separate counsel to defend such action on behalf
of such indemnified party or parties. It is understood that the indemnifying
party shall, in connection with any such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of only one separate firm of attorneys together with appropriate local
counsel at any time from all indemnified parties not having actual or potential
differing interests with any other indemnified party. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement (i) does not
include a statement as to or admission of, fault, culpability or a failure to
act by or on behalf of any such indemnified party, and (ii) includes an
unconditional release of such indemnified party from all liability on any claims
that are the subject matter of such action.
(e) Each Underwriter severally but not jointly agrees,
assuming all Company Collateral Information is accurate and complete in all
material respects, to indemnify and hold harmless the ABFS Entities and their
respective directors, officers and controlling persons within the meaning of
Section 15 of the Act, against any and all losses, claims, damages or
liabilities, joint or several, to which they may become subject under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement of a
material fact contained in the Derived Information (as defined below) provided
by such Underwriter, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and agrees to reimburse each such
indemnified party for any legal or other expenses reasonably incurred by him,
her or it in connection with investigating or defending or preparing to defend
any such loss, claim, damage, liability or action as such expenses are incurred,
provided that, in no event shall any Underwriter be responsible under this
subsection (e) for any amount in excess of the underwriting discount applicable
to the Offered Certificates purchased by such Underwriter hereunder. The
foregoing indemnity agreement is in addition to any liability which such
Underwriters may otherwise have to the ABFS Entities.
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(f) Each of the ABFS Entities hereby agrees, jointly and
severally, to indemnify and hold harmless the Underwriters, each of the
Underwriters' officers and directors and each person who controls the
Underwriters within the meaning of Section 15 of the Act against any and all
losses, claims, damages or liabilities, joint or several, to which they may
become subject under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement of a material fact contained in the Company Collateral
Information provided by any of the ABFS Entities, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party for any legal or other expenses reasonably
incurred by him, her or it in connection with investigating or defending or
preparing to defend any such loss, claim, damage, liability or action as such
expenses are incurred. The ABFS Entities' obligation under this subsection (f)
shall be in addition to any liability which they may otherwise have to the
Underwriters.
The procedures set forth in Section 4(d) shall be equally
applicable to Sections 4(e) and 4(f).
(g) For purposes of this Section 4, the term "Derived
Information" means such portion, if any, of the information delivered to the
Depositor by the Underwriters for filing with the Commission (a copy of which
shall have been previously furnished to the ABFS Entities) that:
(i) is not contained in the Prospectus without taking
into account information incorporated therein by reference;
(ii) does not constitute Company Collateral Information;
and
(iii) is of the type of information defined as Collateral
Term Sheets, Structural Term Sheets or Computational Materials (as such
terms are interpreted in the No-Action Letters (as defined below)).
"Company Collateral Information" means any computer tape
furnished to the Underwriters by any of the ABFS Entities concerning the
Mortgage Loans or any other information furnished by any of the ABFS Entities to
the Underwriters that is relied on or is reasonably anticipated by the parties
hereto to be relied on by the Underwriters in the course of the Underwriters'
preparation of its Derived Information.
"Depositor Information" means anything contained in the
Registration Statement or the Prospectus other than (i) Company Collateral
Information, (ii) Derived Information, (iii) Seller Information, and (iv)
Underwriter Information.
"Seller Information" means information furnished to the
Depositor by the Seller or any of the Seller's affiliates for use in the
Prospectus, which shall include the information set forth in the Prospectus
Supplement (other than the Underwriter Information).
"Underwriter Information" means the concession and reallowance
figures appearing in the Prospectus Supplement below the third paragraph under
the caption "PLAN OF DISTRIBUTION" and the information contained in the third,
fourth and sixth paragraphs under the caption "PLAN OF DISTRIBUTION".
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The terms "Collateral Term Sheet" and "Structural Term Sheets"
shall have the respective meanings assigned to them in the February 13, 1995
letter (the "PSA Letter") of Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ on behalf of the
Public Securities Association (which letter, and the SEC staff's response
thereto, were publicly available February 17, 1995). The term "Collateral Term
Sheet" as used herein includes any subsequent Collateral Term Sheet that
reflects a substantive change in the information presented. The term
"Computational Materials" has the meaning assigned to it in the May 17, 1994
letter (the "▇▇▇▇▇▇ Letter" and, together with the PSA Letter, the "No-Action
Letters") of ▇▇▇▇▇ & ▇▇▇▇ on behalf of ▇▇▇▇▇▇, Peabody & Co., Inc. (which
letter, and the SEC staff's response thereto, were publicly available May 20,
1994).
(h) If the indemnification provided for in this Section 4 is
unavailable to or insufficient to hold harmless an indemnified party under
subsections (a), (b), (c), (e) or (f) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to therein, then
each indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) in such proportion as is appropriate
to reflect the relative benefits received by the ABFS Entities, the Depositor
and the Underwriters from the offering of the Offered Certificates. If, however,
the allocation provided by the immediately preceding sentence is not permitted
by applicable law, then each indemnifying party shall contribute to such amount
paid or payable by such indemnified party in such proportion as is appropriate
to reflect not only such relative benefits but also the relative fault of the
ABFS Entities, the Depositor and the Underwriters in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof), as well as any other
relevant equitable considerations. The relative benefits received by the ABFS
Entities, the Depositor and the Underwriters shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Offered
Certificates purchased under the Underwriting Agreement (before deducting
expenses) received by the ABFS Entities bear to the total underwriting discounts
and commissions received by the Underwriters with respect to the Offered
Certificates purchased under the Underwriting Agreement, in each case as set
forth on the cover page of the Prospectus Supplement. The ABFS Entities
acknowledge that the Depositor is not receiving any compensation in connection
with the offering of the Offered Certificates. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by any of the ABFS Entities (or
any of their affiliates), or the Depositor or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. Each of the ABFS Entities and the Depositor
and the Underwriters agree that it would not be just and equitable if
contributions pursuant to this subsection (h) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take into account
the equitable considerations referred to above in this subsection (h). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions or proceedings in respect thereof)
referred to above in this subsection (h) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating, preparing or defending any such action or claim. Notwithstanding
the provisions of this subsection (h), no Underwriter shall be required to
contribute any amount in excess of the underwriting discount and commission set
forth on the cover page of the Prospectus Supplement paid to the respective
Underwriter, and the Depositor and Credit Suisse First Boston Corporation
collectively shall not be required to contribute any amount in excess of the
underwriting discount and commission set forth on the cover page of the
Prospectus Supplement paid to such Underwriter. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (h) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
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(i) The obligations of each of the ABFS Entities under this
Section 4 shall be in addition to any liability which each of the ABFS Entities
may otherwise have and shall extend, upon the same term and conditions, to each
person, if any, who controls any Underwriter or the Depositor within the meaning
of the Act; and the obligations of the Depositor or the Underwriters under this
Section 4 shall be in addition to any liability which the Depositor or the
respective Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls any of the ABFS Entities
within the meaning of the Act.
5. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warrants and other
statements of any of the ABFS Entities, the Depositor and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of the Depositor, any Underwriter, or any of the ABFS
Entities, or any of their respective controlling persons, officers or directors,
and shall survive delivery of and payment for the Offered Certificates.
If the Underwriting Agreement is terminated by the
Underwriters or if for any reason the purchase of the Offered Certificates by
the Underwriters is not consummated, each of the ABFS Entities shall remain
responsible, jointly and severally, for the expenses to be paid or reimbursed by
them pursuant to Section 4.03 of the Unaffiliated Seller's Agreement, as well as
all other out-of-pocket expenses reasonably incurred by, the Depositor and, to
the extent approved in writing by the Representatives, the Underwriters in
making preparations for the purchase, sale and delivery of the Offered
Certificates, and the respective obligations of each of the ABFS Entities, the
Depositor, and the Underwriters pursuant to Section 4 shall remain in effect,
and if any Certificate has been purchased under the Underwriting Agreement, the
representations and warranties in Section 2 and all obligations under Section 3
shall also remain in effect.
6. Notices, etc. All statements, requests, notices and
agreements hereunder shall be in writing, and (i) if to the Depositor, shall be
delivered or sent by mail, telex or facsimile transmission and confirmed to
Credit Suisse First Boston Mortgage Securities Corp. at Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇ (facsimile number
212-325-5189); (ii) if to Credit Suisse First Boston Corporation, shall be
delivered or sent by mail, telex or facsimile transmission and confirmed to
Credit Suisse First Boston Corporation at Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; Attention: Transactions Advisory Group (facsimile number
212-325-4296); (iii) if to the Underwriters, shall be delivered or sent by mail,
telex or facsimile transmission and confirmed to Credit Suisse First Boston
Corporation, as Representative, at the contact details specified in paragraph
(ii) above; and (iv) if to American Business Credit, Inc. or any of the ABFS
Entities shall be delivered or sent by mail, telex or facsimile transmission to
American Business Financial Services, Inc., Bala Pointe Office Centre, ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇ (facsimile
number (▇▇▇) ▇▇▇-▇▇▇▇). Any such statements, requests, notices or agreements
shall take effect at the time of receipt thereof.
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7. Bankruptcy Petition. The ABFS Entities agree that, prior to
the date which is one year and one day after the payment in full of all
securities issued by the Depositor or by a trust for which the Depositor was the
depositor which securities were rated by any nationally recognized statistical
rating organization, it will not, and will cause each of the other ABFS Entities
not to, institute against, or join any other person in instituting against, the
Depositor any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings or other proceedings under any Federal or state bankruptcy or
similar law.
8. Successors. This Agreement shall be binding upon, and inure
solely to the benefit of, the Depositor, the Underwriters and each of the ABFS
Entities and, to the extent provided in Section 4 hereof, the officers and
directors of each of the ABFS Entities, each of the Depositor and the
Underwriters, and each person who controls each of the ABFS Entities or the
Depositor or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Offered Certificates from any Underwriter shall be deemed a successor or assign
by reason merely of such purchase.
9. Representation of Underwriters. In all dealings hereunder,
the Representative shall act on behalf of each of the Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by the
Representative.
10. Counterparts. This Agreement may be executed by any one or
more of the parties hereto in any number of counterparts, each of which shall be
deemed to be an original, but all such counterparts shall together constitute
one and the same instrument.
11. Applicable Law. (a) This Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York.
(b) Each of the parties hereto hereby submits to the
non-exclusive jurisdiction of the Federal and state courts in the Borough of
Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
12. Miscellaneous. Neither this Agreement nor any term hereof
may be changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by the party against whom enforcement of the
change, waiver, discharge or termination is sought. The headings in this
Agreement are for purposes of reference only and shall not limit or otherwise
affect the meaning hereof.
REMAINDER OF PAGE INTENTIONALLY BLANK
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If the foregoing is in accordance with your understanding,
please sign and return to us one for each of the ABFS Entities, the Depositor
and each of the Underwriters plus one for each counsel counterparts hereof, and
upon the acceptance hereof by you, on behalf of each of the Underwriters, this
letter and such acceptance hereof shall constitute a binding agreement among
each of the ABFS Entities, the Depositor, and the Representative, acting on
behalf of itself and of the several Underwriters in accordance with its terms.
Very truly yours,
ABFS 2002-2, INC.
By: ------------------------------
Name:
Title:
AMERICAN BUSINESS CREDIT, INC.
By: ------------------------------
Name:
Title:
HOMEAMERICAN CREDIT, INC.,
D/B/A UPLAND MORTGAGE
By: ------------------------------
Name:
Title:
AMERICAN BUSINESS MORTGAGE
SERVICES, INC.
By: -------------------------------
Name:
Title:
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The foregoing Indemnification Agreement is
hereby confirmed and accepted as of
the date first above written.
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., as
Depositor
By: ____________________________________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON CORPORATION, acting on behalf
of itself and as the Representative of the several
Underwriters
By: ____________________________________________________
Name:
Title:
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