EXECUTION COPY
XXXXXX XXXXXXX ABS CAPITAL I INC.
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2003-SD1
UNDERWRITING AGREEMENT
New York, New York
June 26, 2003
Xxxxxx Xxxxxxx & Co. Incorporated,
as representative of the several underwriters
listed on the attached Schedule A
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxxx Xxxxxxx ABS Capital I Inc., a Delaware corporation (the
"Company"), proposes to sell to you, as representative (the "Representative") of
yourself, Xxxxxxxx Capital Partners, L.P. ("Xxxxxxxx") and The Xxxxxxxx Capital
Group, L.P. (together with the Representative and Xxxxxxxx, the "Underwriters"),
Xxxxxx Xxxxxxx ABS Capital I Inc., Series 2003-SD1, Mortgage Pass-Through
Certificates 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 agreement dated as of June 1,
2003 (the "Pooling Agreement"), among the Company, as depositor (in such
capacity, the "Depositor"), Xxxxxx Xxxxxxx Mortgage Capital Inc. (the "Seller"),
The Murrayhill Company, as master reporting agent (the "Master Reporting
Agent"), Deutsche Bank National Trust Company, as custodian (the "Custodian"),
and Xxxxx Fargo Bank Minnesota, National Association, as trustee (the
"Trustee"). In addition to the Offered Certificates, the Depositor will
authorize for issuance the Mortgage Pass-Through Certificates, Series 2003-SD1,
Class X, Class P and Class R pursuant to the Pooling 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, or will prior
to the Closing Date (as defined herein) file with or mail 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. 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 Computational Materials, ABS
Term Sheets and Collateral Term Sheets (each 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 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 Agreement.
(d) This Agreement has been duly authorized, executed and delivered by the
Company.
(e) The Pooling 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 Offered Certificates, when executed and authenticated in
the manner contemplated in the Pooling Agreement, and delivered to and paid
for by the
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Underwriters in accordance with the terms of this Agreement, will be
validly issued and outstanding and entitled to the benefits of the Pooling
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 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 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 Certificates from the Company, for a purchase
price which is the sum of 100.00% of the original principal amount of the
Offered Certificates.
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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 Computational Materials and ABS Term Sheets (each
as defined below) in connection with the offering of the Offered Certificates,
subject to the following conditions:
(a) In connection with the use of Computational Materials, the Underwriters
shall comply with all applicable requirements of the No-Action Letter of
May 20, 1994, issued by the Commission to Xxxxxx, Xxxxxxx Acceptance
Corporation I, Xxxxxx, Xxxxxxx & Co. Incorporated and Xxxxxx Structured
Asset Corporation, as made applicable to other issuers and underwriters by
the Commission in response to the request of the Public Securities
Association dated May 24, 1994 (collectively, the "Xxxxxx/PSA Letter"), as
well as the PSA Letter referred to below. In connection with the use of ABS
Term Sheets, the Underwriters shall comply with all applicable requirements
of the No-Action Letter of February 17, 1995, issued by the Commission to
the Public Securities Association (the "PSA Letter" and, together with the
Xxxxxx/PSA Letter, the "No-Action Letters").
(b) "Computational Materials" as used herein shall have the meaning given
such term in the No-Action Letters, but shall include only those
Computational Materials that have been prepared or delivered to prospective
investors by or at the direction of the Underwriters. "ABS Term Sheets" and
"Collateral Term Sheets" as used herein shall have the meanings given such
terms in the PSA Letter but shall include only those ABS Term Sheets or
Collateral Term Sheets that have been prepared or delivered to prospective
investors by or at the direction of the Underwriters.
(c) All Computational Materials and ABS Term Sheets provided to prospective
investors that are required to be filed pursuant to the No-Action Letters
shall bear a legend on each page including the following statement:
"THIS INFORMATION IS BEING DELIVERED TO A SPECIFIC NUMBER OF
PROSPECTIVE SOPHISTICATED INVESTORS IN ORDER TO ASSIST THEM IN
DETERMINING WHETHER THEY HAVE AN INTEREST IN THE TYPE OF SECURITY
DESCRIBED HEREIN. IT HAS BEEN PREPARED SOLELY FOR INFORMATION PURPOSES
AND IS NOT AN OFFER TO BUY OR SELL OR A SOLICITATION OF AN OFFER TO
BUY OR SELL ANY SECURITY OR INSTRUMENT OR TO PARTICIPATE IN ANY
TRADING STRATEGY. THIS MATERIAL IS BASED ON INFORMATION THAT
[UNDERWRITER] CONSIDERS RELIABLE. [UNDERWRITER] MAKES NO
REPRESENTATION OR WARRANTY WITH RESPECT TO THE ACCURACY OR
COMPLETENESS OF THE INFORMATION, OR WITH RESPECT TO THE TERMS OF ANY
FUTURE OFFER OF SECURITIES CONFORMING TO THE TERMS HEREOF. ANY SUCH
OFFER OF SECURITIES WOULD BE MADE PURSUANT TO A
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DEFINITIVE PROSPECTUS OR PRIVATE PLACEMENT MEMORANDUM, AS THE CASE MAY
BE, PREPARED BY THE ISSUER WHICH COULD CONTAIN MATERIAL INFORMATION
NOT CONTAINED HEREIN AND TO WHICH THE PROSPECTIVE PURCHASERS ARE
REFERRED. IN THE EVENT OF ANY SUCH OFFERING, THIS INFORMATION SHALL BE
DEEMED SUPERSEDED, AMENDED AND SUPPLEMENTED IN ITS ENTIRETY BY SUCH
PROSPECTUS OR PRIVATE PLACEMENT MEMORANDUM. SUCH PROSPECTUS OR PRIVATE
PLACEMENT WILL CONTAIN ALL MATERIAL INFORMATION IN RESPECT OF ANY
SECURITIES OFFERED THEREBY AND ANY DECISION TO INVEST IN SUCH
SECURITIES SHOULD BE MADE SOLELY IN RELIANCE UPON SUCH PROSPECTUS OR
PRIVATE PLACEMENT MEMORANDUM. THE INFORMATION CONTAINED HERE IN MAY BE
BASED ON CERTAIN ASSUMPTIONS REGARDING MARKET CONDITIONS AND OTHER
MATTERS AND IS THEREFORE SUBJECT TO CHANGE. WE MAKE NO REPRESENTATIONS
REGARDING THE REASONABLENESS OF SUCH ASSUMPTIONS OR THE LIKELIHOOD
THAT ANY OF SUCH ASSUMPTIONS WILL COINCIDE WITH ACTUAL MARKET
CONDITIONS OR EVENTS, AND THIS MATERIAL SHOULD NOT BE RELIED ON FOR
SUCH PURPOSES. NO REPRESENTATION IS MADE THAT ANY RETURNS INDICATED
WILL BE ACHIEVED."
The Company shall have the right to require additional specific legends or
notations to appear on any Computational Materials or ABS Term Sheets, 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 Computational
Materials and ABS Term Sheets referred to therein bear a legend in a form
previously approved in writing by the Company.
(d) Any Computational Materials and ABS Term Sheets are subject to the
review by and approval of the Company prior to their distribution to any
prospective investors and a copy of such Computational Materials and ABS
Term Sheets 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.
(e) 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 Computational Materials and ABS Term Sheets that are
required to be filed with the Commission pursuant to the No-Action Letters.
The Underwriters may provide copies of the forgoing in a consolidated or
aggregate form that includes all information required to be filed. All
Computational Materials and ABS Term Sheets 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 Computational Materials or ABS Term Sheets on or after the day on which
Computational Materials and ABS Term Sheets are required to be provided to
the Company pursuant to this paragraph
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III(B)(e) (other than copies of Computational Materials or ABS Term Sheets
previously submitted to the Company in accordance with this paragraph
III(B)(e) for filing pursuant to paragraph VI(e)), unless such
Computational Materials or ABS Term Sheets are preceded or accompanied by
the delivery of a Prospectus to such investor or prospective investor.
(f) All information included in the Computational Materials and ABS Term
Sheets 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 Computational
Materials and ABS Term Sheets may include information based on alternative
methodologies or assumptions if specified therein.
(g) The Company shall not be obligated to file any Computational Materials
or ABS Term Sheets that in the reasonable determination of the Company are
not required to be filed pursuant to the No-Action Letters.
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
Computational Materials and ABS Term Sheets 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 Commission with respect to the Offered Certificates in accordance
with the No-Action Letters; (ii) on the date any such Computational Materials
and ABS Term Sheets with respect to such Certificates (or any written or
electronic materials furnished to prospective investors on which the
Computational Materials and ABS Term Sheets 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
Computational Materials and ABS Term Sheets (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
Computational Materials and ABS Term Sheets were prepared or disseminated on
behalf of the Company; and (iv) all Computational Materials and ABS Terms Sheets
(or underlying materials distributed to prospective investors on which the
Computational Materials and ABS Term Sheets 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 Computational Materials or ABS Term Sheets (or any
written or electronic materials furnished to prospective investors on which the
Computational Materials or ABS Term Sheets 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
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Depositor (the "Pool Information") or (ii) contained in (but not incorporated by
reference in) any Prospectus (other than any Underwriter Information (as defined
herein)) (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 Computational Materials or ABS Term
Sheets (or any written or electronic materials furnished to prospective
investors on which the Computational Materials or ABS Term Sheets 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 June 30, 2003, or at such other time or place on the same or such other
date, not later than five business days after the date of this Agreement, or as
may be agreed to by the Company and Xxxxxx Xxxxxxx & Co. Incorporated. Payment
for the Offered Certificates shall be made upon delivery to the Underwriters of
the Offered Certificates registered in such names and in such denominations as
the Underwriters shall request in writing not less than two full business days
prior to the date of delivery. The time and date of such payment and delivery
with respect to the Offered Certificates are herein referred to as the "Closing
Date".
V.
The obligations of the Underwriters hereunder are subject to the
following conditions:
A. Subsequent to the execution and delivery of this Agreement and prior
to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice
have been given of any intended or potential downgrading, or any review for
a possible change, that does not indicate the direction of the possible
change, in the rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization", as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act;
(ii) there shall not have occurred any change, or any development involving
a prospective change, in the condition, financial or otherwise, or in the
earnings, business or operations, of the Company and its subsidiaries,
taken as a whole, from that set forth in the Prospectus, that in the
judgment of the Underwriters, is material and adverse and that makes it, in
the judgment of the Underwriters, impracticable to market the Offered
Certificates on the terms and in the manner contemplated in the Prospectus;
and
(iii) the Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of
the Company, to the
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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 of each of Countrywide Home Loans Servicing LP, Ocwen Federal Bank
FSB and Wilshire Credit Corporation (each a "Servicer" and, together, the
"Servicers"), in form and substance acceptable to the Underwriters.
E. The Underwriters shall have received on the Closing Date an opinion
of counsel to the Trustee in form and substance acceptable to them.
F. The Underwriters shall have received on the Closing Date an opinion
of counsel to the Custodian, in form and substance acceptable to the
Underwriters.
G. The Underwriters shall have received on the Closing Date an opinion
of counsel to the Seller, in form and substance acceptable to the Underwriters.
H. The Underwriters shall have received on the Closing Date an opinion
of counsel to the Company with respect to certain matters relating to the
transfer of the Mortgage Loans to the Depositor and from the Depositor to the
Trustee, and such counsel shall have consented to reliance on such opinion by
the Rating Agencies as though such opinion had been addressed to them.
I. The Class A-1, Class A-2, Class M-1, Class M-2, Class B-1 and Class
B-2 Certificates shall have been rated "Aaa", "Aaa", "Aa2", "A2", "Baa2" and
"Baa3", respectively, by Xxxxx'x Investors Service, Inc., "AAA", "AAA", "AA",
"A", "BBB" and "BBB-" by Fitch Ratings and "AAA", "AAA", "AA", "A", "BBB" and
"BBB-", respectively, by Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc.
J. 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 object.
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 in current reports on
Form 8-K under the Securities and Exchange Act of 1934 (the "Exchange Act") all
information with respect to the Offered Certificates which constitutes
"Computational Materials" as defined in the No-Action Letter of May 20, 1994
issued by the Commission to Xxxxxx, Xxxxxxx Acceptance Corporation I, Xxxxxx,
Xxxxxxx & Co. Incorporated and Xxxxxx Structured Asset Corporation, the
No-Action Letter of May 27, 1994 issued by the Commission to the Public
Securities Association and the No-Action Letter of March 9, 1995 issued by the
Commission to the Public Securities Association, in accordance with and in the
time frames set forth in such letters; provided, however, that prior to such
filing of the Computational Materials and ABS Term Sheets by the Company, the
Underwriters must comply with their obligations pursuant to paragraph III(B).
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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 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 or the Prospectus or any revision or amendment thereof or
supplement thereto, (ii) any information in any Computational Materials or ABS
Terms Sheets required to be provided by any Underwriter to the Company pursuant
to paragraph III(B) other than Pool Information or Prospectus Information, (iii)
the information and data concerning the Mortgage Loans set forth on any computer
tape (or other electronic or printed medium) furnished to the Company by any
Underwriter and set forth in the Prospectus Supplement (clauses (i), (ii) and
(iii) collectively the "Underwriter Information"), (iv) the information
concerning the Servicers under the caption "The Servicers" in the Prospectus
Supplement (the "Servicer Information") and (v) the information concerning the
Master Reporting Agent under the caption "The Master Reporting Agent" in the
Prospectus Supplement (the "Master Reporting Agent Information" and, together
with the Underwriter 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 Computational Materials, the ABS Term Sheets 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
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represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and disbursements of such
counsel related to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by the Underwriters
in the case of parties indemnified pursuant to the first paragraph of this
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,
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damages or liabilities, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand, and the
Underwriters on the other, in connection with the offering of the Offered
Certificates shall be deemed to be in the same proportions that the total net
proceeds from the offering of the Offered Certificates (before deducting
expenses) received by the Company and the total underwriting discounts and
commissions received by the Underwriters in respect thereof respectively, bear
to the aggregate public offering price of the Offered Certificates. The relative
fault of the Company on the one hand, and of the Underwriters on the other,
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company or by
the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this 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
12
Dealers, Inc., the Chicago Board of Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade, (ii) trading of any securities of the
Company shall have been suspended on any exchange or in any over-the-counter
market, (iii) a general moratorium on commercial banking activities in New York
shall have been declared by either Federal or New York State authorities or (iv)
there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in the judgment of
the Underwriters, is material and adverse and (b) in the case of any of the
events specified in clauses (a)(i) through (iv), such event singly or together
with any other such event, makes it, in the judgment of the Underwriters,
impracticable to market the Offered Certificates on the terms and in the manner
contemplated in the Prospectus.
IX.
If this Agreement shall be terminated by the Underwriters because of
any failure or refusal on the part of the Company to comply with the terms or to
fulfill any of the conditions of this Agreement, or if for any reason the
Company shall be unable to perform its obligations under this Agreement, the
Company will reimburse the Underwriters for all out-of-pocket expenses
(including the fees and disbursements of its counsel) reasonably incurred by the
Underwriters in connection with the Offered Certificates.
All communications hereunder shall be in writing and effective only
upon receipt and, if sent to the Company, 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 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxxxxx Xxxxx, 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 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, XX 00000, Attention: Xxxxxxxx Xxxxx.
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
13
[SIGNATURE PAGE FOLLOWS]
14
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
Very truly yours,
XXXXXX XXXXXXX ABS CAPITAL I INC.
By: /s/ Xxxxxxx X. Xxx
-----------------------------------
Name:
Title:
Accepted and agreed to by:
XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ [Authorized Representative]
-------------------------------
Name:
Title:
[Signature Page to the Underwriting Agreement]
SCHEDULE A
CLASS A-1 CLASS A-2 CLASS M-1 CLASS M-2 CLASS B-1 CLASS B-2
UNDERWRITERS CERTIFICATES CERTIFICATES CERTIFICATES CERTIFICATES CERTIFICATES CERTIFICATES
------------ ------------ ------------ ------------ ------------ ------------ ------------
Xxxxxx Xxxxxxx & Co. Incorporated.... $106,194,330 $ 35,397,450 $ 10,360,350 $ 9,065,430 $ 6,388,470 $ 2,244,330
Xxxxxxxx Capital Partners, L.P....... $ 536,335 $ 178,775 $ 52,325 $ 45,785 $ 32,265 $ 11,335
The Xxxxxxxx Capital Group L.P....... $ 536,335 $ 178,775 $ 52,325 $ 45,785 $ 32,265 $ 11,335
------------ ------------ ------------ ------------ ------------ -----------
Total................................ $107,267,000 $ 35,755,000 $ 10,465,000 $ 9,157,000 $ 6,453,000 $ 2,267,000
S-1
EXHIBIT A
OPINION OF XXXXX XXXXXXXXXX LLP,
COUNSEL FOR THE COMPANY
A-1
