Exhibit 99.2
EXECUTION COPY
XXXXXX XXXXXXX CAPITAL I INC.
MORTGAGE PASS-THROUGH CERTIFICATES
Series 0000-0XX
XXXXXXXXXXXX XXXXXXXXX
Xxx Xxxx, Xxx Xxxx
February 26, 2007
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs and Madams:
Xxxxxx Xxxxxxx Capital I Inc., a Delaware corporation (the "Company"),
proposes to sell to you as representative (the "Underwriter") the Xxxxxx Xxxxxxx
Mortgage Loan Trust 2007-3XS (the "Issuing Entity"), Mortgage Pass-Through
Certificates, Series 2007-3XS in the classes and in the respective original
principal or notional amounts and with the designations described on Schedule A
attached hereto (the "Securities"). The Securities, along with the Class OC and
Class P Certificates (the "Private Securities"), will be issued pursuant to a
pooling and servicing agreement dated as of February 1, 2007 (the "Pooling and
Servicing Agreement") among the Company, as depositor, Xxxxx Fargo Bank,
National Association ("Xxxxx Fargo"), as the master servicer (the "Master
Servicer") and as securities administrator (the "Securities Administrator"),
Xxxxxx Xxxxxxx Mortgage Capital Inc., as seller ("MSMCI"), and LaSalle Bank
National Association, as trustee (the "Trustee"). The Securities will represent
undivided beneficial ownership interests in a trust fund consisting primarily of
a pool of fixed-rate mortgage loans (the "Mortgage Loans"), secured by first
liens on one- to four-family residential properties. The Mortgage Loans may be
sold to the Depositor pursuant to various mortgage loan purchase agreements
(such agreements, the "Mortgage Loan Purchase Agreements" and the "Servicing
Agreements," respectively) between MSMCI and one or more sellers (the
"Sellers"), a mortgage loan purchase agreement between MSMCI and the Depositor
and assignment, assumption and recognition agreements between the Depositor,
MSMCI, the Trustee and each Seller and/or servicer (each servicer, a "Servicer")
(collectively, the "Assignment Agreements"), as applicable.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to the
Securities and has filed with the Commission one or more free writing
prospectuses (together, the "Free Writing Prospectus") and prospectus supplement
(the "Prospectus Supplement") specifically relating to the Securities pursuant
to Rule 424 under the Securities Act of 1933 (the "Securities Act") and the
rules and regulations thereunder (the "Securities Act Regulations"). The term
Registration Statement means such registration statement as amended to the date
of the Underwriting Agreement. The term Base Prospectus means the prospectus
included in the Registration Statement. The term Prospectus means the Base
Prospectus together with the Prospectus Supplement specifically relating to the
Securities, as filed with the Commission pursuant to Rule 424. The term free
writing prospectus means any free writing prospectus, as defined in Rule 405
of the Securities Act. Any reference in this underwriting agreement (the
"Agreement") to the Registration Statement or the Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the Securities Act, as of the effective date of the
Registration Statement or the Prospectus, as the case may be. Terms not
otherwise defined in this Agreement are used in this Agreement as defined in the
Pooling and Servicing Agreement.
The term "Disclosure Package" means (i) the Base Prospectus, as most
recently amended or supplemented immediately prior to the Initial Sale Time (as
defined herein) and (ii) any Free Writing Prospectus that the parties hereto
shall hereafter expressly agree to treat as part of the Disclosure Package. If,
subsequent to the date of this Agreement, the Company and the Underwriter have
determined that the Disclosure Package 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 Securities, then the
"Disclosure Package" 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").
I.
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.
(b) (i) Each part of the Registration Statement, when such part became
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, the Disclosure Package and the Prospectus comply, and, as
amended or supplemented, if applicable, will comply in all material
respects with the Securities Act and the applicable rules and regulations
of the Commission thereunder and (iii) each of the Disclosure Package and
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 statements or omissions in the Registration Statement,
the Disclosure Package or the Prospectus based upon and in conformity with
information relating to the Underwriter furnished to the Company in writing
by the Underwriter expressly for use or incorporation therein.
(c) 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 to enter into and perform its obligations under this
Agreement and the Pooling and Servicing Agreement.
(d) This Agreement has been duly authorized, executed and delivered by
the Company.
(e) Each of the Pooling and Servicing Agreement and the Assignment
Agreements 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.
(f) The direction by the Company to the Securities Administrator to
execute, authenticate and deliver the Securities has been duly authorized
by the Company, and the Securities, 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.
(g) Neither the execution and delivery by the Company of, nor the
performance by the Company of its obligations under, this Agreement, the
Pooling and Servicing Agreement and the Assignment Agreements, 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, the Pooling and Servicing Agreement and the
Assignment Agreements, 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 Securities.
(h) 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.
(i) 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 Disclosure Package or the Prospectus 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 Disclosure Package or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described or filed as
required.
(j) 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.
(i) 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 (the "Investment Company Act").
(ii) the Company is eligible to use Free Writing Prospectuses in
connection with this offering pursuant to Rules 164 and 433 of the
Securities Act Regulations; any Free Writing Prospectus that the Company is
required to file pursuant to Rule 433(d) under the Securities Act
Regulations has been, or will be, filed with the Commission in accordance
with the requirements of the Securities Act and the Securities Act
Regulations; and each Free Writing Prospectus that the Company has filed,
or is required to file, pursuant to Rule 433(d) under the Securities Act
Regulations or that was prepared by or on behalf of or used by the Company
complies or will comply in all material respects with the requirements of
the Securities Act and the Securities Act Regulations.
(iii) The characteristics of the Issuing Entity will not subject the
Issuing Entity to registration as an "investment company" under the
Investment Company Act.
II.
MSMCI represents and warrants to and agrees with the Underwriter that:
(a) MSMCI has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of New York, has
the corporate power and authority to own its property and to conduct its
business as described in the Prospectus and to enter into and perform its
obligations under this Agreement and the Pooling and Servicing Agreement.
(b) This Agreement has been duly authorized, executed and delivered by
MSMCI.
(c) Each of the Pooling and Servicing Agreement, the Mortgage Loan
Purchase Agreements and the Assignment Agreements has been duly authorized,
executed and delivered by MSMCI and is a valid and binding agreement of
MSMCI, 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.
(d) Neither the execution and delivery by MSMCI of, nor the
performance by the Company of its obligations under, the Pooling and
Servicing Agreement, the Mortgage Loan Purchase Agreements and the
Assignment Agreements, will contravene any provision of applicable law or
the certificate of incorporation or by-laws of MSMCI or any agreement or
other instrument binding upon MSMCI that is material to MSMCI or
any judgment, order or decree of any governmental body, agency or court
having jurisdiction over MSMCI 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 MSMCI of its obligations under
the Pooling and Servicing Agreement, the Mortgage Loan Purchase Agreements
and the Assignment Agreements.
(iv)
The Company hereby agrees to sell the Securities to the Underwriter, and
the Underwriter, upon the basis of the representations and warranties contained
in this Agreement, but subject to the conditions stated in this Agreement,
agrees to purchase the Securities from the Company, for a purchase price that is
the sum of (i) 99.98% of the original principal amount of the Securities and
(ii) accrued interest, if any, from the Closing Date to the date of payment and
delivery.
III.
The Underwriter proposes to make a public offering of the Securities as
soon as the Underwriter deems advisable after this Agreement has been executed
and delivered. The terms of the public offering of the Securities are set forth
in the Prospectus.
In connection with the offering of the Securities, the Underwriter may
prepare and provide to prospective investors Free Writing Prospectuses, 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):
"Business Day" shall mean any day other than (i) a Saturday or
Sunday or (ii) a day on which banking institutions in the State of
New York or the jurisdiction in which the offeree is located are
required or authorized by law or executive order to be closed.
Unless preceded or accompanied by the Base Prospectus, the
Underwriter shall not convey or deliver any written communication to
any person in connection with the initial offering of the
Securities, unless such written communication (1) is made in
reliance on Rule 134 of the Securities Act Regulations, (2)
constitutes a prospectus satisfying the requirements of Rule 430B of
the Securities Act Regulations or (3) constitutes a Free Writing
Prospectus and such Free Writing Prospectus is attached to this
Agreement as Schedule B. The Underwriter shall not convey or deliver
in connection with the initial offering of the Securities any "ABS
informational and computational material," as defined in Item
1101(a) of Regulation AB of the Securities Act Regulations ("ABS
Informational and Computational Material"), in reliance upon Rules
167 and 426 of the Securities Act Regulations in lieu of a free
writing prospectus.
The Underwriter shall deliver to the Depositor, (a) no later
than two Business Days prior to the date of first use thereof, any
Free Writing Prospectus prepared by or on behalf of such Underwriter
that contains any "issuer information," as defined in Rule 433(h) of
the Securities Act Regulations and footnote 271 of the Commission's
Securities Offering Reform Release No. 33-8591 ("Issuer
Information") (which the parties hereto agree includes, without
limitation, Pool Information (as defined herein)), and (b) upon
first use, any Free Writing Prospectus or portion thereof that
contains only a description of the final terms of the Securities.
Notwithstanding the foregoing, any Free Writing Prospectus that
contains only ABS Informational and Computational Materials shall 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) of the Securities Act Regulations
and (b) the date of first use of such Free Writing Prospectus.
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 3(b)(ii) above will constitute all
Free Writing Prospectuses of the type described in such Section that
were furnished to prospective investors by such Underwriter in
connection with its offer and sale of the Securities.
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 3(b)(ii) above, 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, when read in conjunction with the
other information included in the Disclosure Package, 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 such Underwriter makes no
representation to the extent such misstatements or omissions were
the result of any inaccurate Issuer Information supplied by the
Company to such Underwriter, which information was not corrected by
Corrective Information subsequently supplied by the Company to the
Underwriter prior to the Time of Sale.
The Company agrees to file with the Commission the following:
1. Any Free Writing Prospectus or portion thereof
delivered by the Underwriter to the Company pursuant to
Article IV(B)(ii); and
2. 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.
Any Free Writing Prospectus required to be filed pursuant to
Article IV(B)(v) 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 Securities 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
Securities 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 Securities pursuant to
Rule 424(b) of the Securities Act Regulations and two Business
Days after the first use of such Free Writing Prospectus;
(c) Any Free Writing Prospectus required to be filed
pursuant to Article IV(B)(v)(b) 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; and
(d) The Company shall not be required to file (1) Issuer
Information contained in any Free Writing Prospectus of an
Underwriter or 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 Securities or (2) any Free Writing Prospectus
or portion thereof that contains a description of the
Securities or the offering of the Securities which does not
reflect the final terms thereof.
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 provisions of Article IV(B)(vii), the
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.
Notwithstanding the provisions of Articles IV(B)(v) and
IV(B)(vii), neither the Company nor any 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.
The Company and each Underwriter each agree that any Free
Writing Prospectuses prepared by it shall contain the following
legend:
"The depositor has filed a registration statement (including a
prospectus) with the SEC 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 issuing entity 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, 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."
The Company and each Underwriter agree to retain all Free
Writing Prospectuses that they have used and that are not required
to be filed pursuant to this Article IV for a period of three years
following the initial bona fide offering of the Securities.
(a) In the event that any Underwriter becomes aware
that, as of the Time of Sale, any Free Writing Prospectus
prepared by or on behalf of such Underwriter and delivered to
such investor contained any untrue statement of a material
fact or, when read in conjunction with the other information
included in the Disclosure Package, omitted to state a
material fact necessary in order to make the statements
contained therein, in the light of the circumstances under
which they were made, not misleading (such Free Writing
Prospectus, a "Defective Free Writing Prospectus"), such
Underwriter shall notify the Company thereof within one
Business Day after discovery.
(b) Provided that the Defective Free Writing Prospectus
was an Issuer Free Writing Prospectus or contained Issuer
Information, such Underwriter shall, if requested by the
Company:
Prepare a Free Writing Prospectus with Corrective
Information that corrects the material misstatement in
or omission from the Defective Free Writing Prospectus
(such corrected Free Writing Prospectus, a "Corrected
Free Writing Prospectus");
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; provided if the Time of Sale has
occurred with respect to such investor, the Underwriter
shall provide such investor with (w) adequate disclosure
of the contractual arrangement, (x) adequate disclosure
of the person's rights under the existing contract of
sale at the time termination is sought, (y) adequate
discloser of the new information that is necessary to
correct the misstatements or omissions in the
information given at the time of the original contract
of sale, and (z) a meaningful ability to elect to
terminate or not terminate the prior contract of sale
and to elect to enter into or not enter into a new
contract of sale; and
In the event that the Defective Free Writing
Prospectus contained Issuer Information, and the
Underwriter shall in good faith incur any costs to any
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
permit the Company access to the applicable investor and
an opportunity to attempt to mitigate such costs through
direct negotiation with such investor.
The Underwriter covenants with the Company that after the
final Prospectus is available such Underwriter shall not distribute
any written information concerning the Securities to a prospective
investor unless such information is preceded or accompanied by the
final Prospectus.
The Underwriter covenants and agrees with the Company that it
shall not accept any offer to purchase Securities until the time at
least 24 hours after the time the related offeree received the
Preliminary Prospectus, or such shorter period as such Underwriter
and the Company shall agree.
IV.
Payment for the Securities shall be made by certified or official bank
check or checks payable to the order of the Company in immediately available
funds at the office of Xxxxxx Xxxxxxx & Co. Incorporated 0000 Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, at 10:00 A.M., local time, on February 28, 2007, 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. Payment for the Securities shall
be made upon delivery to the Underwriter of the Securities 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 Securities are referred to
in this Agreement as the "Closing Date."
V.
The obligations of the Underwriter under this Agreement 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 Securities on the terms and
in the manner contemplated in the Prospectus;
(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 (x) 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 and (y) no stop
order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been instituted
or, to the Depositor's knowledge, threatened. The officer signing
and delivering such certificate may rely upon the best of his
knowledge as to proceedings threatened; and
(v) The Underwriter shall have received on the Closing Date a
certificate or opinion of counsel of each Seller and/or Servicer, as
applicable, the Trustee, the Master Servicer and the Securities
Administrator signed by the president or a vice president of the
respective Seller and/or Servicer, as applicable, the Trustee, the
Master Servicer and the Securities Administrator and dated the
Closing Date, to the effect that (i) the representations and
warranties of the Sellers, Servicers, the Trustee, the Master
Servicer or the Securities Administrator, as applicable, in this
Agreement, the Pooling and Servicing Agreement, the related Mortgage
Loan Purchase Agreement , the related Servicing Agreement or related
Assignment Agreement, as applicable, are true and correct in all
material respects at and as of the Closing Date with the same effect
as if made on the Closing Date, (ii) the respective Seller and/or
Servicer, as
applicable, the Trustee, the Master Servicer and the Securities
Administrator has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or prior
to the Closing Date and (iii) with respect to the Seller's
Information related to the respective Seller, the Servicer's
Information related to the respective Servicer, the Trustee's
information related to the Trustee, or the Master Servicer and
Securities Administrator information related to the Master Servicer
and Securities Administrator, as applicable, nothing has come to the
attention of the signer that would lead to the signer to believe
that the Prospectus Supplement contains any untrue statement of a
material fact or omits to state any material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading. "Seller's Information"
refers to sections in the Prospectus Supplement entitled
"Description of the Mortgage Loans--Loan Purchasing Guidelines and
Underwriting Standards," "Servicer's Information" refers to sections
in the Prospectus Supplement entitled "The Servicers--GMAC Mortgage,
LLC," "Trustee's Information" refers to sections in the Prospectus
Supplement entitled "The Trustee" and "Master Servicer's and
Securities Administrator's Information" refers to sections in the
Prospectus Supplement entitled "The Master Servicer and Securities
Administrator."
B. The Underwriter shall have received on the Closing Date an
opinion 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
it.
D. The Underwriter shall have received on the Closing Date a letter
of KPMG, LLP, 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) The Underwriter shall have received from each of Xxxxx'x
Investors Services, Inc. and Standard & Poor's, a division of The
XxXxxx-Xxxx Companies, Inc. letters confirming the ratings set forth in
the Prospectus Supplement, which ratings shall not have been withdrawn.
(vii) The Underwriter shall have received from counsel for the
Trustee a favorable opinion, dated the Closing Date, in form and substance
satisfactory to the Underwriter and its counsel, to the effect that the
Pooling and Servicing Agreement has been duly authorized, executed and
delivered to the Trustee and constitutes legal, valid, binding and
enforceable agreements of the Trustee, subject, as to enforceability, to
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights in general and by general principles of equity
regardless of whether enforcement is considered in a proceeding in equity
or at law, and as to such other matters as may be agreed upon by the
Underwriter and the Trustee.
(viii) The Underwriter shall have received from counsel for the
Master Servicer and the Securities Administrator a favorable opinion,
dated the Closing Date, in form and substance satisfactory to the
Underwriter and its counsel, to the effect that the Pooling and Servicing
Agreement has been duly authorized, executed and delivered to the Master
Servicer and the Securities Administrator and constitutes legal, valid,
binding and enforceable agreements of the Master Servicer and the
Securities Administrator, subject, as to enforceability, to bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights in general and by general principles of equity
regardless of whether enforcement is considered in a proceeding in equity
or at law, and as to such other matters as may be agreed upon by the
Underwriter and the Master Servicer and the Securities Administrator.
(ix) Except as agreed to by the Underwriter, the Underwriter shall
have received from counsel to each Seller and/or Servicer, as applicable,
a favorable opinion, dated the Closing Date, in form and substance
satisfactory to the Underwriter and its counsel, to the effect that each
Mortgage Loan Purchase Agreement or Servicing Agreement and Assignment
Agreement has been duly authorized, executed and delivered by each Seller
and/or Servicer, as applicable, and constitute legal, valid, binding and
enforceable agreements of each Seller and/or Servicer, as applicable,
subject, as to enforceability, to bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights in general
and by general principles of equity regardless of whether enforcement is
considered in a proceeding in equity or at law, and as to such other
matters as may be agreed upon by the Underwriter and the Sellers and/or
Servicers, as applicable.
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, during the period mentioned in paragraph C. below, as many copies of
the Prospectus and any supplements and amendments thereto as the
Underwriter may reasonably request.
B. Before amending or supplementing the Registration Statement or
the Prospectus with respect to the Securities, to furnish the Underwriter
a copy of each such proposed amendment or supplement and not to file any
such proposed amendment or supplement to which the Underwriter reasonably
objects.
C. If, during such period after the first date of the public
offering of the Securities, 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 a
purchaser, 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 Securities 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 Securities for
investment under the laws of such jurisdictions as the Underwriter may
designate.
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 any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, any Free Writing Prospectus or the Prospectus (if used
within the period set forth in paragraph C. of Article VIII 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, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon and in conformity with information
furnished in writing to the Company by the Underwriter expressly for use or
incorporation therein.
The Underwriter agrees 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 information relating to the Underwriter furnished in writing by the
Underwriter expressly for use or incorporation in the Registration Statement,
any Free Writing Prospectus or the Prospectus.
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
Article VIII and by the Company in the case of parties indemnified pursuant to
the second paragraph of this Article VIII. 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 Article VIII is
unavailable to an indemnified party under the first or second paragraph of this
Article VIII 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 Securities 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 that
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 Securities shall be deemed to be in the same proportions that
the total net proceeds from the offering of the Securities (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 Securities. 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 Article VIII 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 Article VIII, 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 Securities 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 Article VIII
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 Securities.
(x)
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 Securities on
the terms and in the manner contemplated in the Prospectus.
VIII.
The Company acknowledges that in connection with the offering of the
Securities: (a) the Underwriter has acted at arms length, is not an agent of,
and owes no fiduciary duty to, the Company or any other person, (b) the
Underwriter owes the Company only those duties and obligations set forth in this
Agreement and (c) the Underwriter may have interests that differ from those of
the Company. The Company waives to the full extent permitted
by applicable law any claims it may have against the Underwriter arising from an
alleged breach of fiduciary duty in connection with the offering of the
Securities.
IX.
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 represented and agreed that with effect from and including the
date on which the Prospectus Directive is implemented in that Relevant Member
State (the "Relevant Implementation Date") it 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 Securities 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 Securities 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 Directive 2003/71/EC and includes any relevant implementing
measure in each Relevant Member State.
X.
This Agreement, together with any contemporaneous written agreements and
any prior written agreements (to the extent not superseded by this Agreement)
that relate to the offering of the Securities, represents the entire agreement
between the Company, on the one hand, and the Underwriter, on the other, with
respect to the preparation of the Prospectus, and the conduct of the offering,
and the purchase and sale of the Securities.
XI.
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 Securities.
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.
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/ Xxxxxxx Xxx
------------------------------
Name: Xxxxxxx Xxx
Title: Vice President
Accepted and agreed to by:
XXXXXX XXXXXXX & CO. INCORPORATED,
as representative
By: /s/ Xxxxxxx Xxx
--------------------------------
Name: Xxxxxxx Xxx
Title: Executive Director
SCHEDULE A
Class Principal Amount ($) Maturity Date Interest Rate (%)
----- -------------------- ------------- -----------------
1-A-1 $77,804,000 January 2047 Floating Rate (1)
1-A-2-A $36,450,000 January 2047 Fixed Rate (1)
1-A-2-B $5,445,000 January 2047 Fixed Rate (1)
1-A-3-A $26,930,000 January 2047 Fixed Rate (1)
1-A-3-B $2,995,000 January 2047 Fixed Rate (1)
2-A-1-A $123,191,000 January 2047 Floating Rate (1)
2-A-1-B $30,798,000 January 2047 Floating Rate (1)
2-A-2-SS $26,893,000 January 2047 Fixed Rate (1)
2-A-3-SS $46,349,000 January 2047 Fixed Rate (1)
2-A-4-SS $43,793,000 January 2047 Fixed Rate (1)
2-A-5 $30,148,000 January 2047 Fixed Rate (1)
2-A-6 $34,909,000 January 2047 Fixed Rate (1)
2-A-7-M $13,006,000 January 2047 Fixed Rate (1)
M-1 $7,701,000 January 2047 Floating Rate (1)
M-2 $3,983,000 January 2047 Floating Rate (1)
M-3 $3,186,000 January 2047 Floating Rate (1)
M-4 $1,858,000 January 2047 Floating Rate (1)
M-5 $1,858,000 January 2047 Floating Rate (1)
M-6 $1,858,000 January 2047 Floating Rate (1)
B-1 $1,858,000 January 2047 Floating Rate (1)
B-2 $1,858,000 January 2047 Floating Rate (1)
B-3 $2,655,000 January 2047 Floating Rate (1)
A-R $100 January 2047 6.94189%
------------
(1) Please refer to page iv of the Prospectus Supplement for a description of
the pass-through rate for each Class of Certificates.
Sch. A-1
SCHEDULE B
EXHIBIT A
OPINION OF SIDLEY AUSTIN, COUNSEL FOR THE COMPANY
The opinion of Sidley Austin LLP, counsel for the Company, to be delivered
pursuant to Article VI, paragraph B. of the document entitled Xxxxxx Xxxxxxx
Capital I Inc. Underwriting Agreement shall be to the effect that:
1. The Company is validly existing as a corporation in good standing under
the laws of the State of Delaware.
2. The Company has the corporate power and corporate authority to carry on
its business as described in the Prospectus and to own and operate its
properties in connection therewith.
3. The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
4. Each of the Mortgage Loan Purchase Agreement and the Pooling and
Servicing Agreement has been duly authorized, executed and delivered by the
Company and each is a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except that (A) such
enforcement is subject to bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to creditors' rights
generally and (B) such enforcement may be limited by general principles of
equity (regardless of whether enforcement is sought in a proceeding in equity or
at law).
5. The execution and delivery by the Company of the Underwriting
Agreement, the Mortgage Loan Purchase Agreement and the Pooling and Servicing
Agreement and the signing of the Registration Statement by the Company are
within the corporate power of the Company and have been duly authorized by all
necessary corporate action on the part of the Company; and neither the issuance
and sale of the Certificates, nor the consummation of the transactions
contemplated in the Underwriting Agreement nor the fulfillment of the terms of
such Underwriting Agreement will (i) result in any violation of the provisions
of the certificate of incorporation or by-laws of the Company or, to the best of
our knowledge, any New York or federal law, administrative regulation or
administrative or court decree applicable to the Company or (ii) constitute a
default under any material contract known to us to which the Company is a party;
provided that for purposes of this clause (ii) we have not been asked to perform
and have not performed in any independent investigation.
6. The Public Certificates have been duly authorized by the Company and,
when executed and authenticated as specified in the Pooling and Servicing
Agreement and delivered and paid for pursuant to the Underwriting Agreement and
the Pooling and Servicing Agreement, will be duly issued and entitled to the
benefits of the Pooling and Servicing Agreement.
7. To the best of our knowledge, no filing or registration with or notice
to or consent, approval, authorization or order of any New York or federal court
or governmental authority or agency is required for the consummation by the
Company of the transactions contemplated by the Underwriting Agreement, except
such as have been obtained under the 1933 Act or such as may be required under
state securities or Blue Sky laws.
8. The Registration Statement is effective under the 1933 Act and, to the
best of our knowledge and information, no stop order suspending the
effectiveness of the Registration Statement has been issued under the 1933 Act
or proceedings therefor initiated or threatened by the Commission.
9. The Pooling and Servicing Agreement is not required to be qualified
under the Trust Indenture Act of 1939, as amended.
10. The statements in the Prospectus under the headings "Federal Income
Tax Consequences" and "ERISA Considerations" to the extent that they constitute
matters of law or legal conclusions with respect thereto, have been prepared or
reviewed by us and are correct in all material respects.
11. The Trust Fund created by the Pooling and Servicing Agreement is not
required to register as an "investment company" under the Investment Company Act
of 1940, as amended.
12. The statements in the Prospectus under the caption "Description of the
Certificates," insofar as such statements purport to summarize certain terms of
the Certificates and certain provisions of the Pooling and Servicing Agreement,
constitute a fair summary of such terms and provisions in all material respects.
13. The Registration Statement, as of the date it became effective, and
the Prospectus, as of the date thereof (other than the financial statements and
other financial, statistical and numerical information included therein, as to
which no opinion is rendered), appeared on its face to be appropriately
responsive in all material respects to the applicable requirements of the 1933
Act and the rules and regulations thereunder.
14. The Public Certificates other than the Class B-1, Class B-2 and Class
B-3 Certificates will be mortgage related securities, as defined in Section
3(a)(41) of the Securities Exchange Act of 1934, as amended, so long as such
Certificates are rated in one of the two highest rating categories by at least
one nationally recognized statistical rating organization.
