Exhibit 1
XXXXXX XXXXXXX CAPITAL I INC.
MORTGAGE PASS-THROUGH CERTIFICATES
Series 2006-HE2
UNDERWRITING AGREEMENT
New York, New York
April 24, 2006
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Xxxxxx Xxxxxxx Capital I Inc., a Delaware corporation (the
"Company"), proposes to sell to you, Xxxxxx Xxxxxxx & Co. Incorporated, (the
"Underwriter") Xxxxxx Xxxxxxx Capital I Inc. Trust 2006-HE2 Mortgage
Pass-Through Certificates, Series 2006-HE2 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 April 1, 2006 (the "Pooling and Servicing
Agreement") among Xxxxxx Xxxxxxx Capital I Inc., as depositor (the "Depositor"),
Xxxxx Fargo Bank, National Association ("Xxxxx Fargo"), HomEq Servicing
Corporation ("HomEq"), JPMorgan Chase Bank, National Association (together with
Xxxxx Fargo and HomEq, the "Servicers"), WMC Mortgage Corp. ("WMC"), Decision
One Mortgage Company, LLC (together with WMC, the "Responsible Parties"),
LaSalle Bank National Association (together with Xxxxx Fargo in its capacity as
custodian, the "Custodians") and Deutsche Bank National Trust Company (the
"Trustee"). In addition to the Offered Certificates, the Depositor will
authorize for issuance the Mortgage Pass-Through Certificates, Series 2006-HE2,
Class X, Class P and Class R 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 Capital I Inc. Trust 2006-HE2 Free Writing Prospectus, dated March 13,
2006, the Company's Prospectus, dated March 27, 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
Underwriter 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
Underwriter 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(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 the 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 the Representative 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 Underwriter or
in any other manner mutually agreed by the Underwriter 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 Underwriter 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
Underwriter, and the Underwriter, 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 99.70% of the sum of the original principal amounts of
the Offered Certificates as set forth on Schedule A hereto.
III.
A. The Underwriter 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
Underwriter 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 Underwriter agrees):
(a) Unless preceded or accompanied by the Prospectus, the
Underwriter 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. Without
the Company's and the Representative's prior written consent, CSC shall not
convey or deliver in connection with the initial offering of the Offered
Certificates any Informational and Computational Material, in reliance upon
Rules 167 and 426 under the Securities Act.
(b) The Underwriter 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 the 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. CSC shall not prepare or distribute any Underwriter Free
Writing Prospectus without the prior written consent of Representative.
Notwithstanding the foregoing, any Free Writing Prospectus that contains only
ABS Informational and Computational Materials may be delivered by the
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 Underwriter represents and warrants to the Company that the
Free Writing Prospectuses to be furnished to the Company by the Underwriter
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 Underwriter in connection with its offer and sale of
the Offered Certificates.
(d) The Underwriter represents and warrants 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 Underwriter makes 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 Underwriter
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 Underwriter 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 Underwriter shall file with the Commission any Free Writing
Prospectus that is used or referred to by it and distributed by or on behalf of
the 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, the Underwriter shall file
with the Commission any Free Writing Prospectus for which the 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 the 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 Underwriter 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 Underwriter 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 Underwriter 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. 333-130684) 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 Underwriter thereof within one business day after discovery and the
Company shall, if requested by the Underwriter, prepare and deliver to the
Underwriter 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 Underwriter becomes 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
Underwriter shall notify the Company thereof within one business day after
discovery.
(l) The Underwriter 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 Underwriter 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 Underwriter for such
costs; provided that, before incurring such costs, the Underwriter first permits
the Company access to the applicable investor and an opportunity to attempt to
mitigate such costs through direct negotiation with such investor.
(n) The Underwriter covenants with the Company that after the final
Prospectus is available the Underwriter 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. The 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"), the 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) The 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) The 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 April 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
Underwriter of the Offered Certificates registered in such names and in such
denominations as the Underwriter 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 Underwriter 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 Underwriter, is
material and adverse and that makes it, in the judgment of the
Underwriter, impracticable to market the Offered Certificates on the
terms and in the manner contemplated in the Prospectus; and
(iii) the Underwriter 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 Underwriter 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 Underwriter shall have received on the Closing Date an
opinion of counsel to the Underwriter in form and substance acceptable to the
Underwriter.
D. The Underwriter shall have received on the Closing Date opinions
of counsel for each Servicer in form and substance acceptable to the
Underwriter.
E. The Underwriter shall have received on the Closing Date an
opinion of counsel for the Trustee in form and substance acceptable to the
Underwriter.
F. The Underwriter shall have received on the Closing Date opinions
of counsel for each Responsible Party in form and substance acceptable to the
Underwriter.
G. The Underwriter shall have received on the Closing Date an
opinion of counsel for 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 Underwriter 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 Underwriter, regarding certain specified procedures
performed thereby with respect to information set forth in the Prospectus.
VI.
In further consideration of the agreements of the Underwriter
contained in this Agreement, the Company covenants as follows:
A. To furnish the Underwriter, 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 the 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
Underwriter, the Prospectus is required by law to be delivered in connection
with sales by the Underwriter, 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
Underwriter, 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
Underwriter 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 Underwriter 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 Underwriter promptly of any such filing pursuant to
Rule 433.
VII.
The Company agrees to indemnify and hold harmless the Underwriter
and each person, if any, who controls the 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
Underwriter 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 Underwriter has agreed to indemnify the Company pursuant to the
immediately succeeding paragraph.
The 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 Underwriter,
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 the Underwriter and (ii) any untrue
statements or alleged untrue statements of a material fact furnished by the
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 the 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 Underwriter 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 Underwriter 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 Underwriter 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 Underwriter 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 Underwriter 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 Underwriter 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
Underwriter 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 Underwriter and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriter 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, the Underwriter shall not be
required to contribute any amount in excess of the amount by which the total
underwriting discounts and commissions received by the Underwriter in connection
with the Offered Certificates underwritten and distributed to the public by the
Underwriter exceeds the amount of any damages that the 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
the Underwriter or any person controlling the 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 Underwriter's
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 Underwriter, 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 Underwriter, 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 Underwriter 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 Underwriter for all out-of-pocket expenses (including
the fees and disbursements of its counsel) reasonably incurred by the
Underwriter 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:
Xxxxxxxx Xxxxx.
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 CAPITAL I INC.
By: /s/: Xxxxxx Xxxxxxx
--------------------------
Name: Xxxxxx Xxxxxxx
Title: Managing Director
Accepted and agreed to by:
XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/: Xxxxxx Xxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxx
Title: Managing Director
SCHEDULE A
Original Class Pass-Through
Class Certificate Balance Rate
----- ------------------- ----
Class A-1 $ 435,720,000 Variable
Class A-2a $ 690,310,000 Variable
Class A-2b $ 196,890,000 Variable
Class A-2c $ 295,470,000 Variable
Class A-2d $ 183,755,000 Variable
Class M-1 $ 78,206,000 Variable
Class M-2 $ 71,406,000 Variable
Class M-3 $ 43,070,000 Variable
Class M-4 $ 37,403,000 Variable
Class M-5 $ 36,270,000 Variable
Class M-6 $ 32,869,000 Variable
Class B-1 $ 32,869,000 Variable
Class B-2 $ 29,469,000 Variable
Class B-3 $ 23,802,000 Variable
SCHEDULE B
Free Writing Prospectuses
EXHIBIT A
OPINIONS OF XXXXXXXXXX, XXXXXXXXXX & XXXX LLP,
COUNSEL FOR THE COMPANY
