XXXXXX XXXXXXX ABS CAPITAL I INC.
MORTGAGE PASS-THROUGH CERTIFICATES
Series 2006-HE3
UNDERWRITING AGREEMENT
New York, New York
September 26, 2006
Xxxxxx Xxxxxxx & Co. Incorporated
as representative of the several underwriters listed on
the attached Schedule A
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs and Madams:
Xxxxxx Xxxxxxx ABS Capital I Inc., a Delaware corporation (the
"Company"), proposes to sell to you, as representative (the "Representative") of
yourself and Bank of America Securities LLC ("Bank of America") (together, the
"Underwriters"), the IXIS Real Estate Capital Trust 2006-HE3, Mortgage
Pass-Through Certificates, Series 2006-HE3 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 September 1, 2006 (the "Pooling and
Servicing Agreement") among Xxxxxx Xxxxxxx ABS Capital I, Inc., as depositor
(the "Depositor"), Master Financial, Inc., as a servicer ("Master Financial"),
Saxon Mortgage Services, as a servicer ("Saxon"), Xxxxx Fargo Bank, National
Association, as securities administrator, master servicer and backup servicer
(in each such capacity, the "Securities Administrator", "Master Servicer" and
"Backup Servicer", respectively), and Deutsche Bank National Trust Company, as
trustee and custodian (in each such capacity, the "Trustee" and the "Custodian",
respectively), and IXIS Real Estate Capital Inc., as unaffiliated seller (the
"Unaffiliated Seller"). In addition to the Offered Certificates, the Depositor
will authorize for issuance the Mortgage Pass-Through Certificates, Series
2006-HE3, Class B-5, Class X, Class P and Class R pursuant to the Pooling and
Servicing Agreement (the "Private Certificates" and together with the Offered
Certificates, the "Certificates").
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement, including a prospectus, relating to
the Offered Certificates 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 amended to the Closing Date (as defined herein). 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 Offered Certificates, as filed with, or
mailed for filing to, the Commission pursuant to Rule 424 (the "Prospectus
Supplement"). The term "preliminary prospectus" means a preliminary prospectus
supplement specifically relating to the Offered Certificates together with the
Base Prospectus. Any reference in this underwriting agreement (the "Agreement")
to the Registration Statement, any preliminary prospectus 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, including the
Free Writing Prospectus, dated
August 21, 2006, and any ABS Informational and Computational Materials (as
defined herein), as of the effective date of the Registration Statement, the
date of such preliminary prospectus or the Prospectus or the Closing Date, as
the case may be. Terms not otherwise defined in this Agreement are used herein
as defined in the Pooling and Servicing Agreement.
I. The Company represents and warrants to and agrees with the Underwriters
that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by
the Commission.
(b) 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 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) 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
Excluded Information (as defined in paragraph VII hereof).
(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) 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.
(f) 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 Certificates, when executed and
authenticated in the manner contemplated in the
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Pooling and Servicing Agreement, and delivered to and paid for by the
Underwriters in accordance with the terms of this Agreement, will be
validly issued and outstanding and entitled to the benefits of the
Pooling and Servicing Agreement.
(g) 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.
(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 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 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.
(k) 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.
II. The Company hereby agrees to sell the Offered Certificates to the
Underwriters, and the Underwriters, upon the basis of the representations and
warranties herein contained, but subject to the conditions hereinafter stated,
agrees to purchase the Offered
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Certificates from the Company, for a purchase price which is the sum of
approximately [____]% of the original principal amount of the Offered
Certificates.
III.
(a) The Underwriters propose to make a public offering of the
Offered Certificates as soon as this Agreement is entered into. The
terms of the public offering of the Offered Certificates are set forth
in the Prospectus.
(b) It is understood that the Underwriters may prepare and provide
to prospective investors certain ABS Informational and Computational
Materials (as defined below) in connection with the offering of the
Offered Certificates, subject to the following conditions:
i) In connection with the use of ABS Informational and
Computational Materials, the Underwriters shall comply
with all applicable requirements of Regulation AB.
ii) "ABS Informational and Computational Materials" as used
herein shall have the meaning given such term in item
1101(a) of Regulation AB but shall include only those ABS
Informational and Computational Materials that have been
prepared or delivered to prospective investors by or at
the direction of the Underwriters.
iii) All ABS Informational and Computational Materials provided
to prospective investors that are required to be filed
pursuant to Regulation AB shall bear a legend on each page
including the following statement:
"THIS MATERIAL IS NOT A SOLICITATION OF ANY OFFER TO BUY
OR SELL ANY SECURITY OR OTHER FINANCIAL INSTRUMENT OR TO
PARTICIPATE IN ANY TRADING STRATEGY. THIS MATERIAL WAS NOT
PREPARED BY THE XXXXXX XXXXXXX RESEARCH DEPARTMENT. PLEASE
REFER TO IMPORTANT INFORMATION AND QUALIFICATIONS AT THE
END OF THIS MATERIAL."
The Company shall have the right to require additional
specific legends or notations to appear on any ABS
Informational or Computational Materials, the right to
require changes regarding the use of terminology and the
right to determine the types of information appearing
therein. Notwithstanding the foregoing, paragraph
III(B)(c) will be satisfied if all ABS Informational and
Computational Materials referred to therein bear a legend
in a form previously approved in writing by the Company.
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iv) Any ABS Informational and Computational Materials are
subject to the review by and approval of the Company prior
to their distribution to any prospective investors and a
copy of such ABS Informational and Computational Materials
as are delivered to prospective investors shall, in
addition to the foregoing delivery requirements, be
delivered to the Company simultaneously with delivery to
prospective investors.
v) The Underwriters shall provide to the Company, for filing
on Form 8-K as provided in paragraph VI(e), five (5)
copies (in such format as required by the Company) of all
ABS Informational and Computational that are required to
be filed with the Commission pursuant to Regulation AB.
The Underwriters may provide copies of the forgoing in a
consolidated or aggregate form that includes all
information required to be filed. All ABS Informational
and Computational Materials described in this paragraph
III(B)(e) must be provided to the Company not later than
10:00 a.m. New York time one business day before filing
thereof is required pursuant to the terms of this
Agreement. Each Underwriter agrees that it will not
provide to any investor or prospective investor in the
Offered Certificates any ABS Informational and
Computational Materials on or after the day on which ABS
Informational and Computational Materials are required to
be provided to the Company pursuant to this paragraph
III(B)(e) (other than copies of ABS Informational and
Computational Materials previously submitted to the
Company in accordance with this paragraph III(B)(e) for
filing pursuant to paragraph VI(e)), unless such ABS
Informational and Computational Materials are preceded or
accompanied by the delivery of a Prospectus to such
investor or prospective investor.
vi) All information included in the Computational ABS
Informational and Computational Materials shall be
generated based on substantially the same methodology and
assumptions that are used to generate the information in
the Prospectus Supplement as set forth therein; provided,
however, that the ABS Informational and Computational
Materials may include information based on alternative
methodologies or assumptions if specified therein.
vii) The Company shall not be obligated to file any ABS
Informational and Computational Materials that in the
reasonable determination of the Company are not required
to be filed pursuant to Regulation AB.
(c) Each Underwriter severally represents and warrants and agrees
with the Company that as of the date hereof and as of the Closing Date
that: (i) the ABS Informational and Computational Materials furnished to
the Company pursuant to paragraph III(B)(e) constitute (either in
original, aggregated or consolidated form) all of the materials
furnished to prospective investors by the Underwriter prior to the time
of delivery thereof to the Company that are required to be filed with
the
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Commission with respect to the Offered Certificates in accordance with
Regulation AB; (ii) on the date any such ABS Informational and
Computational Materials with respect to such Certificates (or any
written or electronic materials furnished to prospective investors on
which the ABS Informational and Computational Materials are based) were
last furnished to each prospective investor and on the date of delivery
thereof to the Company pursuant to paragraph III(B)(e) and on the
related Closing Date, such ABS Informational and Computational Materials
(or materials) were accurate in all material respects when read in
conjunction with the Prospectus; (iii) the Underwriters have not and
will not represent to potential investors that any ABS Informational and
Computational Materials were prepared or disseminated on behalf of the
Company; and (iv) all ABS Informational and Computational Materials (or
underlying materials distributed to prospective investors on which the
ABS Informational and Computational Materials were based) contained and
will contain the legend in the form set forth in paragraph III(B)(c) (or
in such other form previously approved in writing by the Company).
Notwithstanding the foregoing, the Underwriters make no representation
or warranty as to whether any ABS Informational and Computational
Materials (or any written or electronic materials furnished to
prospective investors on which the ABS Informational and Computational
Materials are based) included or will include any inaccurate statement
resulting directly from any error contained in the information (i)
regarding the Mortgage Loans, the related mortgagors and/or the related
Mortgaged Properties (but only to the extent any untrue statement or
omission arose from errors or omissions in the information concerning
the Mortgage Loans, the related mortgagors and/or the related Mortgage
Properties, as applicable, provided to the Underwriters by the Company
(the "Pool Information") or (ii) contained in (but not incorporated by
reference in) any Prospectus (the "Prospectus Information"); provided,
however, in each case, that if any information that would otherwise
constitute Pool Information or Prospectus Information is presented in
any ABS Informational and Computational Materials (or any written or
electronic materials furnished to prospective investors on which the ABS
Informational and Computational Materials are based) in a way that is
either inaccurate or misleading in any material respect, such
information shall not be Pool Information or Prospectus Information.
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 September 29, 2006, or at such other time or place on the same or such
other date, not later than five business days after the date of this Agreement,
or as may be agreed to by the Company and Xxxxxx Xxxxxxx & Co. Incorporated.
Payment for the Offered Certificates shall be made upon delivery to the
Underwriters of the Offered Certificates registered in such names and in such
denominations as the Underwriters shall request in writing not less than two
full business days prior to the date of delivery. The time and date of such
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payment and delivery with respect to the Offered Certificates are herein
referred to as the "Closing Date."
V. The obligations of the Underwriters hereunder are subject to the
following conditions:
(a) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date:
i) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading,
or any review for a possible change, that does not indicate the
direction of the possible change, in the rating accorded any of
the Company's securities by any "nationally recognized statistical
rating organization", as such term is defined for purposes of Rule
436(g)(2) under the Securities Act;
ii) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations, of the
Company and its subsidiaries, taken as a whole, from that set
forth in the Prospectus, that in the judgment of the Underwriters,
is material and adverse and that makes it, in the judgment of the
Underwriters, impracticable to market the Offered Certificates on
the terms and in the manner contemplated in the Prospectus; and
iii) the Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive
officer of the Company, to the effect set forth in clause (i)
above and to the effect that the representations and warranties of
the Company contained in this Agreement are true and correct as of
the Closing Date and that the Company has complied with all of the
agreements and satisfied all of the conditions on its part to be
performed or satisfied on or before the Closing Date.
The officer signing and delivering such certificate may rely upon
the best of his knowledge as to proceedings threatened.
(b) The Underwriters shall have received on the Closing Date an
opinion of counsel for the Company, dated the Closing Date, to the
effect set forth in Exhibit A.
(c) The Underwriters shall have received on the Closing Date an
opinion of counsel to the Underwriters in form and substance acceptable
to them.
(d) The Underwriters shall have received on the Closing Date an
opinion of counsel to Saxon, in form and substance acceptable to the
Underwriters.
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(e) The Underwriters shall have received on the Closing Date an
opinion of counsel to Master Financial, in form and substance acceptable
to the Underwriters.
(f) The Underwriters shall have received on the Closing Date an
opinion of counsel to the Custodian and the Trustee in form and
substance acceptable to them.
(g) The Underwriters shall have received on the Closing Date an
opinion of counsel to the Securities Administrator, Master Servicer and
Backup Servicer in form and substance acceptable to them.
(h) The Underwriters shall have received on the Closing Date an
opinion of counsel to the Unaffiliated Seller, in form and substance
acceptable to the Underwriters.
(i) The Underwriters shall have received on the Closing Date an
opinion of counsel to the Company with respect to certain matters
relating to the transfer of the Mortgage Loans to the Company and from
the Company to the Securities Administrator, and such counsel shall have
consented to reliance on such opinion by the Rating Agencies as though
such opinion had been addressed to them.
(j) The Depositor shall have received a letter from Xxxxx'x to the
effect that it has assigned ratings of "Aaa," "Aaa," "Aaa," "Aaa,"
"Aa1," "Aa2," "Aa3," "A1," "A2," "A3," "Baa1," "Baa2," "Baa3," "Ba1" and
"Ba2" to the Class A-1, Class A-2, Class A-3, Class A-4, Class M-1,
Class M-2, Class M-3, Class M-4, Class M-5, Class M-6, Class B-1, Class
B-2, Class B-3, Class B-4 and Class B-5 Certificates, respectively.
(k) The Depositor shall have received a letter from S&P to the
effect that it has assigned ratings of "AAA," "AAA," "AAA," "AAA,"
"AA+," "AA," "AA-," "A+," "A," "A," "BBB+," "BBB," "BBB-," "BBB-" and
"BB+" to the Class A-1, Class A-2, Class A-3, Class A-4, Class M-1,
Class M-2, Class M-3, Class M-4, Class M-5, Class M-6, Class B-1, Class
B-2, Class B-3, Class B-4 and Class B-5 Certificates, respectively.
(l) The Depositor shall have received a letter from Fitch to the
effect that it has assigned ratings of "AAA," "AAA," "AAA," "AAA,"
"AA+," "AA," "AA-," "A+", "A," "A-," "BBB+," "BBB," "BBB-," "BB+" and
"BB" to the Class A-1, Class A-2, Class A-3, Class A-4, Class M-1, Class
M-2, Class M-3, Class M-4, Class M-5, Class M-6, Class B-1, Class B-2,
Class B-3, Class B-4 and Class B-5 Certificates, respectively.
(m) The Underwriters shall have received on the Closing Date a
letter of Deloitte & Touche LLP, dated the date of this Agreement in
form and substance satisfactory to the Underwriters, regarding certain
specified procedures performed thereby with respect to information set
forth in the Prospectus.
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VI. In further consideration of the agreements of the Underwriters contained
in this Agreement, the Company covenants as follows:
(a) To furnish the Underwriters, without charge, a signed copy of
the Registration Statement and any amendments thereto, including
exhibits, and, during the period mentioned in paragraph (C) below, as
many copies of the Prospectus and any supplements and amendments thereto
as the Underwriters may reasonably request.
(b) Before amending or supplementing the Registration Statement or
the Prospectus with respect to the Offered Certificates, to furnish the
Underwriters a copy of each such proposed amendment or supplement and
not to file any such proposed amendment or supplement to which the
Underwriters reasonably objects.
(c) If, during such period after the first date of the public
offering of the Offered Certificates, as in the opinion of counsel for
the Underwriters the Prospectus is required by law to be delivered in
connection with sales by the Underwriters, any event shall occur or
condition exist as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in
the light of the circumstances when the Prospectus is delivered to 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 Underwriters, either amendments or supplements
to the Prospectus so that the statements in the Prospectus as so amended
or supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus will comply with law.
(d) To endeavor to qualify the Offered Certificates for offer and
sale under the securities or Blue Sky laws of such jurisdictions as the
Underwriters shall reasonably request and to pay all expenses (including
fees and disbursements of counsel) in connection with such qualification
and in connection with the determination of the eligibility of the
Offered Certificates for investment under the laws of such jurisdictions
as the Underwriters may designate.
(e) To file in a timely manner with the Commission all information
with respect to the Offered Certificates which constitutes ABS
Informational and Computational Materials as defined in Item 1101(a) of
Regulation AB.
VII. The Company agrees to indemnify and hold harmless the Underwriters and
each person, if any, who controls the Underwriters 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 preliminary
9
prospectus 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, 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 (i) the information furnished in writing to the Company by any Underwriter
specifically for use in connection with the preparation of the Registration
Statement, any preliminary prospectus, the Free Writing Prospectus or the
Prospectus or any revision or amendment thereof or supplement thereto, (ii) any
information in any ABS Informational and Computational Materials required to be
provided by any Underwriter to the Company pursuant to paragraph III(B) other
than Pool Information or Prospectus Information (clause (i) and (ii)
collectively, the "Underwriter Information"), (iii) the information concerning
Saxon and Master Financial under the captions "Transaction Overview - The
Servicers" and "The Servicers" in the Prospectus Supplement (the "Servicer
Information") and (iv) the information and data concerning the Mortgage Loans
set forth on any computer tape (or other electronic or printed medium) furnished
to the Company and any other information set forth in the Prospectus Supplement
other than the Underwriter Information, the Servicer Information and the
information underlining the caption "The Depositor" in the Prospectus (such
information, together with the Underwriter Information, the Issuer Information
and the Servicer Information, the "Excluded Information").
Each Underwriter, severally and not jointly, 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 Underwriters,
but only with reference to (i) information relating to the Underwriters
furnished in writing to the Company by any Underwriter specifically for use in
connection with the preparation of the Registration Statement, any preliminary
prospectus or the Prospectus or any revision or amendment thereof or supplement
thereto and (ii) any ABS Informational or Computational Materials or the
Collateral Term sheets, as applicable, furnished by such Underwriter, to the
extent not Pool Information or Prospectus 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
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proceeding (including any impleaded parties) include both the indemnifying party
and the indemnified party and representation of both parties by the same counsel
would be inappropriate due to actual or potential differing interests between
them. It is understood that the indemnifying party shall not, in respect of the
legal expenses of any indemnified party, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local counsel) for
all such indemnified parties and that all such fees and expenses shall be
reimbursed as they are incurred. Such firm shall be designated in writing by the
Underwriters in the case of parties indemnified pursuant to the first paragraph
of this Article VII and by the Company in the case of parties indemnified
pursuant to the second paragraph of this Article 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 Article VII is
unavailable to an indemnified party under the first or second paragraph of this
Article VII or is insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand, and the Underwriters on the
other, from the offering of the Offered Certificates or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand, and of the Underwriters on the other, in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand, and the Underwriters on the other, in connection
with the offering of the Offered Certificates shall be deemed to be in the same
proportions that the total net proceeds from the offering of the Offered
Certificates (before deducting expenses) received by the Company and the total
underwriting discounts and commissions received by the Underwriters in respect
thereof respectively, bear to the
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aggregate public offering price of the Offered Certificates. The relative fault
of the Company on the one hand, and of the Underwriters on the other, shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Article 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 Article VII, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
underwriting discounts and commissions received by the Underwriters in
connection with the Offered Certificates underwritten and distributed to the
public by the Underwriters exceeds the amount of any damages that the
Underwriters have 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 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
Underwriters or any person controlling the Underwriters or by or on behalf of
the Company, its directors or officers or any person controlling the Company and
(iii) acceptance of any payment for any of the Offered Certificates.
VIII. This Agreement shall be subject to termination in the Underwriters'
absolute discretion, by notice given to the Company, if (a) after the execution
and delivery of this Agreement and prior to the Closing Date: (i) trading
generally shall have been suspended or materially limited on or by, as the case
may be, any of the New York Stock Exchange, the American Stock Exchange, the
National Association of Securities Dealers, Inc., the Chicago Board of Options
Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii)
trading of any securities of the Company shall have been suspended on any
exchange or in any over-the-counter market, (iii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities, or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in the
12
judgment of the Underwriters, is material and adverse and (b) in the case of any
of the events specified in clauses (a)(i) through (iv), such event singly or
together with any other such event, makes it, in the judgment of the
Underwriters, impracticable to market the Offered Certificates on the terms and
in the manner contemplated in the Prospectus.
IX. If this Agreement shall be terminated by the Underwriters because of any
failure or refusal on the part of the Company to comply with the terms or to
fulfill any of the conditions of this Agreement, or if for any reason the
Company shall be unable to perform its obligations under this Agreement, the
Company will reimburse the Underwriters for all out-of-pocket expenses
(including the fees and disbursements of its counsel) reasonably incurred by the
Underwriters in connection with the Offered Certificates.
The Company acknowledges that in connection with the offering of the
Certificates (a) the Underwriters have acted at arms length, are not agents of,
and owe no fiduciary duties to, the Company or any other person, (b) the
Underwriters owe the Company only those duties and obligations set forth in this
Agreement and (c) the Underwriters 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 Underwriters arising from an alleged breach
of fiduciary duty in connection with the offering of the Certificates.
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 Offered Certificates, represents the entire
agreement between the Company the Underwriters with respect to the preparation
of the Prospectus, and the conduct of the offering, and the purchase and sale of
the Offered Certificates.
All communications hereunder shall be in writing and effective only upon
receipt and, if sent to the Company, 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, XX 00000, Attention: Xxxxx Xxx, Esq., or, if sent to 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, XX 00000,
Attention: Xxxxx Xxx, Esq.
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]
13
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
Very truly yours,
XXXXXX XXXXXXX ABS CAPITAL I
INC.
By:________________________________
Name:
Title:
Accepted and agreed to by:
XXXXXX XXXXXXX & CO. INCORPORATED
By:______________________________
Name:
Title:
[Signature Page to the Underwriting Agreement]
SCHEDULE A
CLASS A-1 CLASS A-2 CLASS A-3 CLASS A-4
UNDERWRITERS CERTIFICATES CERTIFICATES CERTIFICATES CERTIFICATES
--------------------------------- ------------ ------------ ------------ ------------
Xxxxxx Xxxxxxx & Co.
Incorporated..................... 404,094,724 127,696,838 169,242,587 109,294,524
Banc of America
Securities LLC................... 2,035,276 643,162 852,413 550,476
TOTAL............................ $406,130,000 $128,340,000 $170,095,000 $109,845,000
CLASS M-1 CLASS M-2 CLASS M-3 CLASS M-4 CLASS M-5 CLASS M-6
UNDERWRITERS CERTIFICATES CERTIFICATES CERTIFICATES CERTIFICATES CERTIFICATES CERTIFICATES
--------------------------------- ------------ ------------ ------------ ------------ ------------ ------------
Xxxxxx Xxxxxxx & Co.
Incorporated..................... 42,406,415 30,655,599 18,903,789 16,349,653 16,860,082 14,816,375
Banc of America
Securities LLC................... 213,585 154,401 95,211 82,347 84,918 74,625
TOTAL............................ $ 42,620,000 $ 30,810,000 $ 18,999,000 $ 16,432,000 $ 16,945,000 $ 14,891,000
CLASS B-1 CLASS B-2 CLASS B-3 CLASS B-4
UNDERWRITERS CERTIFICATES CERTIFICATES CERTIFICATES CERTIFICATES
--------------------------------- ------------ ------------ ------------ ------------
Xxxxxx Xxxxxxx & Co.
Incorporated..................... 14,305,946 12,772,669 7,152,973 8,174,826
Banc of America
Securities LLC................... 72,054 64,331 36,027 41,174
TOTAL............................ $ 14,378,000 $ 12,837,000 $ 7,189,000 $ 8,216,000
S-A-1
EXHIBIT A
OPINION OF XXXXX XXXXXXXXXX LLP,
COUNSEL FOR THE COMPANY
A-1
