Exhibit 1
XXXXXX XXXXXXX ABS CAPITAL I INC.
XXXXXX XXXXXXX IXIS REAL ESTATE CAPITAL TRUST 2006-2
MORTGAGE PASS-THROUGH CERTIFICATES
Series 2006-2
UNDERWRITING AGREEMENT
New York, New York
November 21, 2006
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Xxxxxx Xxxxxxx ABS Capital I Inc., a Delaware corporation (the "Company"),
proposes to sell to you, Xxxxxx Xxxxxxx & Co. Incorporated ("MS&Co." and
together with IXIS Securities North America Inc., the "Underwriters"), Xxxxxx
Xxxxxxx IXIS Real Estate Capital Trust 2006-2 Mortgage Pass-Through
Certificates, Series 2006-2 in the original principal amount and with the
designation described on Schedule A attached hereto (the "Offered
Certificates"). The Offered Certificates will be issued pursuant to a pooling
and servicing agreement dated as of November 1, 2006 (the "Pooling and Servicing
Agreement") among Xxxxxx Xxxxxxx ABS Capital I Inc., as depositor (the
"Depositor"), IXIS Real Estate Capital Inc., as a sponsor ("IXIS RE"), Saxon
Mortgage Services, Inc., as a servicer ("Saxon"), Countrywide Home Loans
Servicing LP, as a servicer, (together with Saxon, the "Servicers"), First NLC
Financial Services, LLC, as a responsible party (the "Responsible Party") and
Deutsche Bank National Trust Company, as trustee (the "Trustee"). In addition to
the Offered Certificates, the Depositor will authorize for issuance the Mortgage
Pass-Through Certificates, Series 2006-2, Class X, Class P Class R and Class RX
pursuant to the Pooling and Servicing Agreement (together with the Offered
Certificates, the "Certificates").
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including information that is contained
in the Prospectus (as defined below) relating to the Offered Certificates and is
deemed to be part of and included in such registration statement, and has filed
with, or mailed for filing to, the Commission a prospectus supplement
specifically relating to the Offered Certificates pursuant to Rule 424 under the
Securities Act of 1933 (the "Securities Act"). The term "Registration Statement"
means such registration statement as such registration statement, including the
exhibits thereto and information that is contained in the Prospectus and is
deemed to be part of and included in such registration statement, may have been
amended or supplemented at the date of the Prospectus. The prospectus first
required to be filed to satisfy the condition set forth in Rule 172(c) and
pursuant to Rule 424(b) under the Securities Act, is hereinafter called the
"Base Prospectus"; such form of supplement to the Base Prospectus relating to
the Certificates, in the form first required to be filed to satisfy the
condition set forth in Rule 172(c) and pursuant to Rule 424(b) under the
Securities Act (including the Base Prospectus as so supplemented) is hereinafter
called the "Prospectus Supplement"; and the Base Prospectus and the Prospectus
Supplement, together, are hereinafter called the "Prospectus". Capitalized terms
not otherwise defined in this Agreement are used herein as defined in the
Pooling and Servicing Agreement.
At or prior to the time when sales to investors of the Offered
Certificates were first made (the "Time of Sale"), the Company had prepared the
following information (collectively, the "Time of Sale Information"): the Xxxxxx
Xxxxxxx IXIS Real Estate Capital Trust 2006-2 Free Writing Prospectus, dated
November 2, 2006, the Company's Prospectus, dated September 21, 2006, and any
other "free-writing prospectus" (as defined pursuant to Rule 405 under the
Securities Act (as defined herein)) (a "Free Writing Prospectus") listed on
Schedule B hereto. If, subsequent to the date of this Agreement, the Company and
the Underwriters determine that such information included an untrue statement of
material fact or omitted 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 and have terminated their old purchase contracts and
entered into new purchase contracts with purchasers of the Offered Certificates,
then "Time of Sale Information" will refer to the information available to
purchasers at the time of entry into the first such new purchase contract,
including any information that corrects such material misstatements or omissions
("Corrective Information") and "Time of Sale" will refer to the time and date on
which such new purchase contracts were entered into.
I.
A. The Company represents and warrants to, and agrees with, the
Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or threatened by the Commission,
and the Prospectus Supplement and each Free Writing Prospectus required to be
filed by the Company pursuant to Section III.B.(e) shall have been filed or
transmitted for filing by means reasonably calculated to result in a filing with
the Commission pursuant to Rule 424(b) under the Securities Act or Rule 433
under the Securities Act, as applicable.
(b) (i) Each part of the Registration Statement, when such part became or
was deemed to become effective, did not contain, and each such part, as amended
or supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (ii) the Registration
Statement and the Prospectus comply, and, as amended or supplemented, if
applicable, will comply, as of its effective date or deemed effective date
pursuant to Rule 430B under the Securities Act, in all material respects with
the Securities Act and the applicable rules and regulations of the Commission
thereunder and (iii) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
except that the representations and warranties set forth in this paragraph
I.A(b) do not apply to the information contained in the Registration Statement,
the Prospectus, the Time of Sale Information or any revision or amendment
thereof or supplement thereto based upon and in conformity with information
furnished in writing to the Company by any Underwriter specifically for use in
connection with the preparation of the Registration Statement, the Prospectus,
the Time of Sale Information or any revision or amendment thereof or supplement
thereto (such statements being collectively referred to as "Underwriter
Statements").
(c) The Time of Sale Information, at the Time of Sale, did not, and at the
Closing Date 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 the Company makes no representation or warranty with respect to
any statements or omissions made in reliance upon and in conformity with the
Underwriter Statements.
(d) Other than the Prospectus, the Company (including its agents and
representatives other than MS&Co. in its capacity as such) has not made, used,
prepared, authorized, approved or referred to and will not make, use, prepare,
authorize, approve or refer to any "written communication" (as defined in Rule
405 under the Securities Act) that constitutes an offer to sell or solicitation
of an offer to buy the Offered Certificates other than (i) any document not
constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act
or Rule 134 under the Securities Act, (ii) the Time of Sale Information, and
(iii) each other written communication of the Company or its agents and
representatives approved in writing in advance by the Underwriters or in any
other manner mutually agreed by the Underwriters and the Company (each such
communication referred to in clause (ii) and this clause (iii) constituting an
"issuer free writing prospectus", as defined in Rule 433(h) under the Securities
Act, being referred to as an "Issuer Free Writing Prospectus"). Each such Issuer
Free Writing Prospectus complied or, if used after the date hereof, will comply
in all material respects with the Securities Act, has been filed or will be
filed in accordance with Section III (to the extent required thereby) and did
not at the Time of Sale, and at the Closing Date will not, contain any untrue
statements of a material fact or (when read in conjunction with the other Time
of Sale Information) 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 the Company makes no representation and
warranty with respect to any statements or omissions made in reliance upon and
in conformity with any Underwriter Statements.
(e) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware, has the
corporate power and authority to own its property and to conduct its business as
described in the Prospectus and the Time of Sale Information and to enter into
and perform its obligations under this Agreement and the Pooling and Servicing
Agreement.
(f) This Agreement has been duly authorized, executed and delivered by the
Company.
(g) The Pooling and Servicing Agreement has been duly authorized, executed
and delivered by the Company and is a valid and binding agreement of the
Company, enforceable in accordance with its terms except as the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and to general principles of equity regardless of
whether enforcement is sought in a proceeding in equity or at law.
(h) The direction by the Company to the Trustee to execute, authenticate
and deliver the Offered Certificates has been duly authorized by the Company,
and the Offered Certificates, when executed and authenticated in the manner
contemplated in the Pooling and Servicing Agreement, and delivered to and paid
for by the Underwriters in accordance with the terms of this Agreement, will be
validly issued and outstanding and entitled to the benefits of the Pooling and
Servicing Agreement.
(i) Neither the execution and delivery by the Company of, nor the
performance by the Company of its obligations under, this Agreement or the
Pooling and Servicing Agreement, will contravene any provision of applicable law
or the certificate of incorporation or by-laws of the Company or any agreement
or other instrument binding upon the Company that is material to the Company or
any judgment, order or decree of any governmental body, agency or court having
jurisdiction over the Company or any subsidiary, and no consent, approval,
authorization or order of, or qualification with, any governmental body or
agency is required for the performance by the Company of its obligations under
this Agreement and the Pooling and Servicing Agreement, except such as may be
required by the securities or Blue Sky laws of the various states in connection
with the offer and sale of the Offered Certificates.
(j) 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 Company and its
subsidiaries, taken as a whole, from that set forth in the Prospectus or the
Time of Sale Information.
(k) There are no legal or governmental proceedings pending or threatened
to which the Company is a party or to which any of the properties of the Company
are subject that are required to be described in the Registration Statement, the
Prospectus or the Time of Sale Information or necessary in order to make the
statements therein in the light of the circumstances under which they were made,
not misleading and that are not so described, nor are there any statutes,
regulations, contracts or other documents required to be described in the
Registration Statement, the Prospectus or the Time of Sale Information or to be
filed as exhibits to the Registration Statement that are not described or filed
as required.
(l) Each preliminary prospectus filed as part of the Registration
Statement as originally filed or as a part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act, complied as to form, when so
filed, in all material respects with the Securities Act and the rules and
regulations of the Commission thereunder.
(m) The Company is not 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.
(n) The Company is not, and on the date on which the first bona fide offer
of the Offered Certificates is made (within the meaning of Rule 164(h)(2) under
the Securities Act) will not be, an "ineligible issuer", as defined in Rule 405
under the Securities Act.
II.
The Company hereby agrees to sell the Offered Certificates to the
Underwriters, and the Underwriters, upon the basis of the representations and
warranties herein contained, but subject to the conditions hereinafter stated,
severally agree to purchase the Offered Certificates from the Company, for a
purchase price which is [__]% of the sum of the original principal amounts of
the Offered Certificates as set forth on Schedule A hereto.
III.
A. The Underwriters propose to make a public offering of the Offered
Certificates as soon as this Agreement is entered into. The terms of the public
offering of the Offered Certificates are set forth in the Prospectus and the
Time of Sale Information.
B. In connection with the offering of the Certificates, the Underwriters
may prepare and provide to prospective investors Free Writing Prospectuses (as
defined below), or portions thereof, which the Company is required to file with
the Commission in electronic format and will use reasonable efforts to provide
to the Company such Free Writing Prospectuses, or portions thereof, in either
Microsoft Word(R) or Microsoft Excel(R) format and not in a PDF, except to the
extent that the Company, in its sole discretion, waives such requirements,
subject to the following conditions (to which such conditions the Underwriters
agree (provided that the Underwriters shall not be responsible for any breach of
the following conditions by any other Underwriter or underwriter)):
(a) Unless preceded or accompanied by the Prospectus, the Underwriters
shall not convey or deliver any written communication to any person in
connection with the initial offering of the Offered Certificates, unless such
written communication (1) is made in reliance on Rule 134 under the Securities
Act, (2) constitutes a prospectus satisfying the requirements of Rule 430B under
the Securities Act or (3) constitutes Time of Sale Information or a Free Writing
Prospectus that does not constitute Time of Sale Information. Without the
Company's prior written consent, the Representative shall not convey or deliver
in connection with the initial offering of the Offered Certificates any "ABS
informational and computational material," as defined in Item 1101(a) of
Regulation AB under the Securities Act ("ABS Informational and Computational
Material"), in reliance upon Rules 167 and 426 under the Securities Act.
(b) The Underwriters shall deliver to the Company, no later than two
business days prior to the date of first use thereof or such later date as may
be agreed to by the Company, (a) any Free Writing Prospectus that was prepared
by or on behalf of any Underwriter (an "Underwriter Free Writing Prospectus")
and contains any "issuer information", as defined in Rule 433(h) under the
Securities Act and footnote 271 of the Commission's Securities Offering Reform
Release No. 33-8591 ("Issuer Information"), and (b) any Free Writing Prospectus
or portion thereof that contains only a description of the final terms of the
Offered Certificates. Notwithstanding the foregoing, any Free Writing Prospectus
that contains only ABS Informational and Computational Materials may be
delivered by any Underwriter to the Company not later than the later of (A) two
business days prior to the due date for filing of the Prospectus pursuant to
Rule 424(b) under the Securities Act or (B) the date of first use of such Free
Writing Prospectus.
(c) The Underwriters represent and warrant to the Company that the Free
Writing Prospectuses to be furnished to the Company by the Underwriters pursuant
to Section III.B.(b) will constitute all Free Writing Prospectuses of the type
described therein that were furnished to prospective purchasers of Offered
Certificates by the Underwriters in connection with its offer and sale of the
Offered Certificates.
(d) The Underwriters represent and warrant to the Company that each Free
Writing Prospectus required to be provided by it to the Company pursuant to
Section III.B.(b), when read in conjunction with the Time of Sale Information,
did not, as of the Time of Sale, and will not as of the Closing Date, include
any untrue statement of a material fact or omit any material fact necessary to
make the statements contained therein, in light of the circumstances under which
they were made, not misleading; provided however, that the Underwriters make no
representation to the extent such misstatements or omissions were the result of
any inaccurate Issuer Information, which information was not corrected by
Corrective Information subsequently supplied by the Company to the Underwriters
within a reasonable period of time prior to the Time of Sale.
(e) The Company agrees to file with the Commission the following: (A) any
Issuer Free Writing Prospectus; (B) any Free Writing Prospectus or portion
thereof delivered by the Underwriters to the Company pursuant to Section
III.B.(b); and (C) any Free Writing Prospectus for which the Company or any
person acting on its behalf provided, authorized or approved information that is
prepared and published or disseminated by a person unaffiliated with the Company
or any other offering participant that is in the business of publishing, radio
or television broadcasting or otherwise disseminating communications.
Notwithstanding the foregoing, the Company shall not be required to file (1)
Issuer Information contained in any Underwriter Free Writing Prospectus or Free
Writing Prospectus of any other offering participant other than the Company, if
such information is included or incorporated by reference in a prospectus or
Free Writing Prospectus previously filed with the Commission that relates to the
offering of the Offered Certificates, or (2) any Free Writing Prospectus or
portion thereof that contains a description of the Offered Certificates or the
offering of the Offered Certificates which does not reflect the final terms
thereof.
(f) Any Free Writing Prospectus required to be filed pursuant to Section
III.B.(e) by the Company shall be filed with the Commission not later than the
date of first use of the Free Writing Prospectus, except that: (A) any Free
Writing Prospectus or portion thereof required to be filed that contains only
the description of the final terms of the Offered Certificates shall be filed by
the Company with the Commission within two days of the later of the date such
final terms have been established for all classes of Offered Certificates and
the date of first use; (B) any Free Writing Prospectus or portion thereof
required to be filed that contains only ABS Informational and Computational
Material shall be filed by the Company with the Commission not later than the
later of the due date for filing the final Prospectus relating to the Offered
Certificates pursuant to Rule 424(b) under the Securities Act or two business
days after the first use of such Free Writing Prospectus; and (C) any Free
Writing Prospectus required to be filed pursuant to Section III.B.(e)(C) shall,
if no payment has been made or consideration has been given by or on behalf of
the Company for the Free Writing Prospectus or its dissemination, be filed by
the Company with the Commission not later than four business days after the
Company becomes aware of the publication, radio or television broadcast or other
dissemination of the Free Writing Prospectus.
(g) The Underwriters shall file with the Commission any Free Writing
Prospectus that is used or referred to by it and distributed by or on behalf of
any Underwriter in a manner reasonably designed to lead to its broad,
unrestricted dissemination not later than the date of the first use of such Free
Writing Prospectus. Notwithstanding the foregoing, each Underwriter shall file
with the Commission any Free Writing Prospectus for which such Underwriter or
any person acting on its behalf provided, authorized or approved information
that is prepared and published or disseminated by a person unaffiliated with the
Company or any other offering participant that is in the business of publishing,
radio or television broadcasting or otherwise disseminating written
communications and for which no payment was made or consideration given by or on
behalf of the Company or any other offering participant, not later than four
business days after such Underwriter becomes aware of the publication, radio or
television broadcast or other dissemination of the Free Writing Prospectus.
(h) Notwithstanding the provisions of Sections III.B.(e) and III.B.(g),
neither the Company nor the Underwriters shall be required to file any Free
Writing Prospectus that does not contain substantive changes from or additions
to a Free Writing Prospectus previously filed with the Commission, and the
Underwriters shall not be required to file any Free Writing Prospectus to the
extent that the information contained therein is included in a prospectus or
Free Writing Prospectus previously filed that relates to the offering of the
Offered Certificates.
(i) The Company and the Underwriters each agree that any Free Writing
Prospectuses prepared by it shall contain the following legend, or substantially
equivalent legend that complies with Rule 433 of the Securities Act:
The depositor has filed a registration statement (including a prospectus)
with the SEC (SEC file no. 333-130694) for the offering to which this
communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the depositor has filed with
the SEC for more complete information about the issuer and this offering. You
may get these documents for free by visiting XXXXX on the SEC web site at
xxx.xxx.xxx. Alternatively, the depositor or any underwriter or any dealer
participating in the offering will arrange to send you the prospectus if you
request it by calling toll-free 0-000-000-0000.
(j) In the event that the Company becomes aware that, as of the Time of
Sale, any Issuer Free Writing Prospectus contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements contained therein (when read in conjunction with the Time of Sale
Information), in light of the circumstances under which they were made, not
misleading (a "Defective Issuer Free Writing Prospectus"), the Company shall
notify the Underwriters thereof within one business day after discovery and the
Company shall, if requested by the Underwriters, prepare and deliver to the
Underwriters a Free Writing Prospectus that corrects the material misstatement
or omission in the Defective Issuer Free Writing Prospectus (such corrected
Issuer Free Writing Prospectus, a "Corrected Issuer Free Writing Prospectus").
(k) In the event that the Underwriters become aware that, as of the Time
of Sale, any Underwriter Free Writing Prospectus delivered to an investor in any
Certificates contained any untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements contained
therein (when read in conjunction with the Time of Sale Information), in light
of the circumstances under which they were made, not misleading, when considered
in conjunction with the Time of Sale Information (together with a Defective
Issuer Free Writing Prospectus, a "Defective Free Writing Prospectus"), the
Underwriters shall notify the Company thereof within one business day after
discovery.
(l) The Underwriters shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was an Underwriter Free
Writing Prospectus, prepare a Free Writing Prospectus which corrects the
material misstatement in or omission from the Defective Free Writing
Prospectus (together with a Corrected Issuer Free Writing Prospectus, a
"Corrected Free Writing Prospectus");
(ii) deliver the Corrected Free Writing Prospectus to each investor
which received the Defective Free Writing Prospectus prior to entering
into a contract of sale with such investor;
(iii) notify such investor in a prominent fashion that the prior
contract of sale with the investor has been terminated, and of the
investor's rights as a result of termination of such agreement;
(iv) provide such investor with an opportunity to affirmatively
agree to purchase the Certificates on the terms described in the Corrected
Free Writing Prospectus; and
(v) comply with any other requirements for reformation of the
original contract of sale with such investor, as described in Section
IV.A.2.c of the Commission's Securities Offering Reform Release No.
33-8591.
(m) In the event that the Defective Free Writing Prospectus was an Issuer
Free Writing Prospectus, and the Underwriters shall in good faith incur any
costs to an investor in connection with the reformation of the contract of sale
with the investor, the Company agrees to reimburse the Underwriters for such
costs; provided that, before incurring such costs, the Underwriters first permit
the Company access to the applicable investor and an opportunity to attempt to
mitigate such costs through direct negotiation with such investor.
(n) The Underwriters covenant with the Company that after the final
Prospectus is available the Underwriters shall not distribute any written
information concerning the Offered Certificates that contains Issuer Information
to a prospective purchaser of Offered Certificates unless such information is
preceded or accompanied by the final Prospectus.
C. Each Underwriter represents and warrants to, and agrees with, the
Company, that:
(a) In relation to each Member State of the European Economic Area which
has implemented the Prospectus Directive (each, a "Relevant Member State"), such
Underwriter has not made and will not make an offer of Certificates to the
public in that Relevant Member State prior to the publication of a prospectus in
relation to the Offered Certificates which has been approved by the competent
authority in that Relevant Member State or, where appropriate, approved in
another Relevant Member State and notified to the competent authority in that
Relevant Member State, all in accordance with the Prospectus Directive, except
that it may, with effect from and including the relevant implementation date,
make an offer of Certificates to the public in that Relevant Member State at any
time:
(A) to legal entities which are authorized or regulated to operate
in the financial markets or, if not so authorized or regulated, whose
corporate purpose is solely to invest in securities;
(B) to any legal entity which has two or more of (1) an average of
at least 250 employees during the last financial year; (2) a total balance
sheet of more than (euro)43,000,000 and (3) an annual net turnover of more
than (euro)50,000,000, as shown in its last annual or consolidated
accounts; or
(C) in any other circumstances which do not require the publication
by the issuer of a prospectus pursuant to Article 3 of the Prospectus
Directive.
For the purposes of this provision, the expression an "offer of
Certificates to the public" in relation to any certificates in any Relevant
Member State means the communication in any form and by any means of sufficient
information on the terms of the offer and the Certificates to be offered so as
to enable an investor to decide to purchase or subscribe the Certificates, as
the same may be varied in that Member State by any measure implementing the
Prospectus Directive in that Member State and the expression "Prospectus
Directive" means the European Commission Directive 2003/71/EC and includes any
relevant implementing measure in each Relevant Member State.
(b) Such Underwriter has only communicated or caused to be communicated
and will only communicate or cause to be communicated an invitation or
inducement to engage in investment activity (within the meaning of Section 21 of
the United Kingdom Financial Services and Markets Act 2000 (the "FSMA"))
received by it in connection with the issue or sale of the Certificates in
circumstances in which Section 21(1) of the FSMA does not apply to the issuer.
(c) Such Underwriter has complied and will comply with all applicable
provisions of the FSMA with respect to anything done by it in relation to the
Certificates in, from or otherwise involving the United Kingdom.
IV.
Payment for the Offered Certificates shall be made to the order of the
Company in immediately available funds at the office of Xxxxxx Xxxxxxx & Co.
Incorporated, 1585 Broadway, New York, New York 10036, at 10:00 A.M., local
time, on November 28, 2006, or at such other time or place on the same or such
other date, not later than five business days after the date of this Agreement,
or as may be agreed to by the Company and Xxxxxx Xxxxxxx & Co. Incorporated.
Payment for the Offered Certificates shall be made upon delivery to the
Underwriters of the Offered Certificates registered in such names and in such
denominations as the Underwriters shall request in writing not less than two
full business days prior to the date of delivery. The time and date of such
payment and delivery with respect to the Offered Certificates are herein
referred to as the "Closing Date."
V.
The obligations of the Underwriters hereunder are subject to the following
conditions:
A. Subsequent to the execution and delivery of this Agreement and prior to
the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading, or any
review for a possible change, that does not indicate the direction of the
possible change, in the rating accorded any of the Company's securities by
any "nationally recognized statistical rating organization," as such term
is defined for purposes of Rule 436(g)(2) under the Securities Act;
(ii) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or otherwise,
or in the earnings, business or operations, of the Company and its
subsidiaries, taken as a whole, from that set forth in the Prospectus,
that in the judgment of the Underwriters, is material and adverse and that
makes it, in the judgment of the Underwriters, impracticable to market the
Offered Certificates on the terms and in the manner contemplated in the
Prospectus; and
(iii) the Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of
the Company, to the effect set forth in clause (i) above and to the effect
that the representations and warranties of the Company contained in this
Agreement are true and correct as of the Closing Date and that the Company
has complied with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied on or before the
Closing Date.
The officer signing and delivering such certificate may rely upon the best of
his knowledge as to proceedings threatened.
B. The Underwriters shall have received on the Closing Date one or more
opinions of counsel for the Company, dated the Closing Date, to the effect set
forth in Exhibit A.
C. The Underwriters shall have received on the Closing Date an opinion of
counsel to the Underwriters in form and substance acceptable to the
Underwriters.
D. The Underwriters shall have received on the Closing Date an opinion of
counsel to each Servicer in form and substance acceptable to the Underwriters.
E. The Underwriters shall have received on the Closing Date an opinion of
counsel to the Trustee in form and substance acceptable to the Underwriters.
F. The Underwriters shall have received on the Closing Date an opinion of
counsel to the Responsible Party in form and substance acceptable to the
Underwriters.
G. The Underwriters shall have received on the Closing Date an opinion of
counsel to the Company with respect to certain matters relating to the transfer
of the Mortgage Loans to the Depositor and from the Depositor to the Trustee,
and such counsel shall have consented to reliance on such opinion by the Rating
Agencies as though such opinion had been addressed to them.
H. The Offered Certificates will be rated not lower than the ratings set
forth in the Prospectus Supplement under the heading "Ratings".
I. The Underwriters shall have received on the Closing Date a letter of
Xxxxx & Xxxxx, dated the date of this Agreement in form and substance
satisfactory to the Underwriters, regarding certain specified procedures
performed thereby with respect to information set forth in the Prospectus.
VI.
In further consideration of the agreements of the Underwriters contained
in this Agreement, the Company covenants as follows:
A. To furnish the Underwriters, without charge, a signed copy of the
Registration Statement and any amendments thereto, including exhibits, and each
Issuer Free Writing Prospectus and, during the period mentioned in paragraph (C)
below, as many copies of the Prospectus and each Issuer Free Writing Prospectus
and any supplements and amendments thereto as each Underwriter may reasonably
request.
B. Subject to the other provisions of this Section VI, the Company will
cause the Issuer Free Writing Prospectus to be transmitted for filing pursuant
to Rule 433 under the Securities Act by means reasonably calculated to result in
filing with the Commission pursuant to said rule.
C. If, during such period after the first date of the public offering of
the Offered Certificates, as in the opinion of counsel for the Underwriters, the
Prospectus is required by law to be delivered in connection with sales by the
Underwriters, any event shall occur or condition exist as a result of which it
is necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances when the Prospectus is
delivered to an investor in the Offered Certificates, not misleading, or if it
is necessary to amend or supplement the Prospectus to comply with law, forthwith
to prepare and furnish, at its own expense, to the Underwriters, either
amendments or supplements to the Prospectus so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be misleading or
so that the Prospectus will comply with law.
D. To endeavor to qualify the Offered Certificates for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the Underwriters
shall reasonably request and to pay all expenses (including fees and
disbursements of counsel) in connection with such qualification and in
connection with the determination of the eligibility of the Offered Certificates
for investment under the laws of such jurisdictions as the Underwriters may
designate.
E. If required, subject to Section III, to file any Issuer Free Writing
Prospectus to the extent required by Rule 433 under the Securities Act. The
Company will advise the Underwriters promptly of any such filing pursuant to
Rule 433.
VII.
The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls each Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities caused by (A) any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus (if used within the period set forth in
paragraph C. of Article VI and as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, or (B) any
untrue statement or alleged untrue statement of a material fact contained in any
Issuer Free Writing Prospectus or any Issuer Information contained in any
Underwriter Free Writing Prospectus, or any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, which was not corrected by Corrective
Information subsequently supplied by the Company to the Underwriters within a
reasonable period of time prior to the Time of Sale, or (C) any breach of the
representation and warranty in Section I.A.(n), in each case except insofar as
such losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission as to which the
Underwriters have agreed to indemnify the Company pursuant to the immediately
succeeding paragraph.
Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company and its directors and officers who sign the Registration
Statement and any person controlling the Company within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, to the same
extent as the foregoing indemnity from the Company to the Underwriters, but only
with reference to (i) any untrue statements or alleged untrue statements of a
material fact, or omissions or alleged omissions to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, in the Underwriter Statements
furnished to the Company by such Underwriter and (ii) any untrue statements or
alleged untrue statements of a material fact furnished by such Underwriter for
use in any Underwriter Free Writing Prospectus, or omissions or alleged
omissions to state a material fact necessary to make the statements therein
(when read in conjunction with the Time of Sale Information), in the light of
the circumstances under which they were made, not misleading; provided, that
such Underwriter shall not be obligated to so indemnify and hold harmless (A) to
the extent such loss, liability, claim, damage or expense is caused by a
misstatement or omission resulting from an error or omission in the Issuer
Information which was not corrected by Corrective Information subsequently
supplied by the Company to the Underwriters within a reasonable period of time
prior to the Time of Sale or (B) with respect to information that is also
contained in the Time of Sale Information.
In case any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought
pursuant to either of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by the Underwriters in the case of parties indemnified
pursuant to the first paragraph of this Section VII and by the Company in the
case of parties indemnified pursuant to the second paragraph of this Section
VII. The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the third sentence of this paragraph, 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.
To the extent the indemnification provided for in this Section VII is
unavailable to an indemnified party under the first or second paragraph of this
Section VII or is insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand, and the Underwriters on the
other, from the offering of the Offered Certificates or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, 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 Company on the one
hand, and of the Underwriters on the other, in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand, and the Underwriters on the other, in connection
with the offering of the Offered Certificates shall be deemed to be in the same
proportions that the total net proceeds from the offering of the Offered
Certificates (before deducting expenses) received by the Company and the total
underwriting discounts and commissions received by the Underwriters in respect
thereof respectively, bear to the aggregate public offering price of the Offered
Certificates. The relative fault of the Company on the one hand, and of the
Underwriters on the other, 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 the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section VII were determined by pro
rata allocation or by any other method of allocation that does not take account
of the considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section VII, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
underwriting discounts and commissions received by such Underwriter in
connection with the Offered Certificates underwritten and distributed to the
public by such Underwriter exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. 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 indemnity and contribution agreements contained in this Section VII
and the representations and warranties of the Company in this Agreement shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by or on behalf of an Underwriter
or any person controlling an Underwriter or by or on behalf of the Company, its
directors or officers or any person controlling the Company and (iii) acceptance
of any payment for any of the Offered Certificates.
VIII.
This Agreement shall be subject to termination in the Underwriters'
absolute discretion, by notice given to the Company, if (a) after the execution
and delivery of this Agreement and prior to the Closing Date: (i) trading
generally shall have been suspended or materially limited on or by, as the case
may be, any of the New York Stock Exchange, the American Stock Exchange, the
National Association of Securities Dealers, Inc., the Chicago Board of Options
Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii)
trading of any securities of the Company shall have been suspended on any
exchange or in any over-the-counter market, (iii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities, or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in the judgment of the Underwriters, is material and
adverse and (b) in the case of any of the events specified in clauses (a)(i)
through (iv), such event singly or together with any other such event makes it,
in the judgment of the Underwriters, impracticable to market the Offered
Certificates on the terms and in the manner contemplated in the Time of Sale
Information and the Prospectus.
IX.
If this Agreement shall be terminated by the Underwriters because of any
failure or refusal on the part of the Company to comply with the terms or to
fulfill any of the conditions of this Agreement, or if for any reason the
Company shall be unable to perform its obligations under this Agreement, the
Company will reimburse the Underwriters for all out-of-pocket expenses
(including the fees and disbursements of its counsel) reasonably incurred by the
Underwriters in connection with the Offered Certificates.
All communications hereunder shall be in writing and effective only upon
receipt and, if sent to the Company or Xxxxxx Xxxxxxx & Co. Incorporated, will
be mailed, hand delivered, couriered or sent by facsimile transmission to it at
0000 Xxxxxxxx, Xxx Xxxx, XX 00000, Attention: Securitized Products Group, with a
copy to 0000 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx X.
Xxx.
This Agreement may be signed in any number of counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument.
[SIGNATURE PAGE FOLLOWS]
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
Very truly yours,
XXXXXX XXXXXXX ABS CAPITAL I INC.
By: /s/ Xxxxxxx Xxx
-------------------------------------
Name: Xxxxxxx Xxx
Title: Managing Director
Accepted and agreed to by:
XXXXXX XXXXXXX & CO. INCORPORATED,
on behalf of itself and the several Underwriters
By: /s/ Xxxxxxx Xxx
-------------------------------------
Name: Xxxxxxx Xxx
Title: Managing Director
SCHEDULE A
Original Class
Class Certificate Balance Pass-Through Rate
------------- ------------------- -----------------
Class A-fpt $ 350,000,000 Variable
Class A-1 $ 283,340,000 Variable
Class A-2 $ 80,280,000 Variable
Class A-3 $ 231,470,000 Variable
Class A-4 $ 136,540,000 Variable
Class M-1 $ 55,433,000 Variable
Class M-2 $ 47,811,000 Variable
Class M-3 $ 29,795,000 Variable
Class M-4 $ 26,331,000 Variable
Class M-5 $ 23,559,000 Variable
Class M-6 $ 22,866,000 Variable
Class B-1 $ 21,480,000 Variable
Class B-2 $ 12,472,000 Variable
Class B-3 $ 20,094,000 Variable
SCHEDULE B
Free Writing Prospectuses
Term Sheet
Schedule of Information Regarding the Mortgage Loans
EXHIBIT A
OPINIONS OF XXXXXXXXXX, XXXXXXXXXX & XXXX LLP,
COUNSEL FOR THE COMPANY
(Previously filed on XXXXX)
