Exhibit 99.2
------------
EXECUTION COPY
XXXXXX XXXXXXX CAPITAL I INC.
MORTGAGE PASS-THROUGH CERTIFICATES
Series 2006-9AR
UNDERWRITING AGREEMENT
New York, New York
July 26, 2006
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 2006-9AR (the "Issuing Entity"), Mortgage
Pass-Through Certificates, Series 2006-9AR 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 July
1, 2006 (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 adjustable-rate mortgage loans,
and hybrid adjustable-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
1
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
2
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.
3
(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 (the "Investment Company
Act").
(l) 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.
(m) 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
4
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.
III.
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) 100.00% 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.
IV.
A. 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.
B. 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):
(i) "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.
(ii) 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.
5
(iii) 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.
(iv) 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.
(v) 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.
(vi) The Company agrees to file with the Commission the
following:
(a) Any Free Writing Prospectus or portion thereof
delivered by the Underwriter to the Company pursuant to
Article IV(B)(ii); and
(b) 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.
6
(vii) 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.
(viii) 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.
(ix) 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
7
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.
(x) 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.
(xi) 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."
(xii) 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:
(1) 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");
8
(2) 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
(3) 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.
(xiii) 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.
(xiv) 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.
V.
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 1585
Broadway, New York, New York 10036, at 10:00 A.M., local time, on July 31,
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. 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."
10
VI.
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
(iv) 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
11
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," "--Underwriting
Standards--Wachovia Mortgage Corporation," and "--Underwriting
Standards--Xxxxxx Xxxxxxx Credit Corp.," "Servicer's Information"
refers to sections in the Prospectus Supplement entitled "The
Servicers--GMAC Mortgage Corporation," "--Wachovia Mortgage
Corporation," and "--Xxxxxx Xxxxxxx Credit Corporation,"
"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.
E. 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.
F. 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.
G. 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.
H. 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.
VII.
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
12
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.
VIII.
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
13
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
14
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.
IX.
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.
15
X.
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.
XI.
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.
XII.
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
16
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.
XIII.
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.
17
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: VP
Accepted and agreed to by:
XXXXXX XXXXXXX & CO. INCORPORATED,
as representative
By: /s/ Xxxxxxx Xxx
------------------------------------
Name: Xxxxxxx Xxx
Title: VP
18
SCHEDULE A
Class Principal Amount ($) Maturity Date Interest Rate (%)
----- -------------------- ------------- -----------------
A-1 $180,500,000 August 2036 Floating Rate (1)
A-2 $146,000,000 August 2036 Floating Rate (1)
A-3 $109,600,000 August 2036 Floating Rate (1)
A-4 $70,200,000 August 2036 Floating Rate (1)
A-5 $39,315,000 August 2036 Floating Rate (1)
A-6 $60,624,000 August 2036 Floating Rate (1)
M-1 $8,153,000 August 2036 Floating Rate (1)
M-2 $8,152,000 August 2036 Floating Rate (1)
M-3 $4,892,000 August 2036 Floating Rate (1)
M-4 $3,913,000 August 2036 Floating Rate (1)
M-5 $3,914,000 August 2036 Floating Rate (1)
M-6 $2,609,000 August 2036 Floating Rate (1)
B-1 $2,608,000 August 2036 Floating Rate (1)
B-2 $2,283,000 August 2036 Floating Rate (1)
B-3 $3,261,000 August 2036 Floating Rate (1)
A-R $100 August 2036 Variable (1)
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
Sch. B-1
EXHIBIT A
OPINION OF SIDLEY AUSTIN, COUNSEL FOR THE COMPANY
The opinion of Xxxxxx Xxxxxx 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.
Exh. A-1
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.
Exh. A-2
