[Execution Copy]
INDEMNIFICATION AGREEMENT
XXXXXX XXXXXXX ABS CAPITAL I INC.
IXIS REAL ESTATE CAPITAL TRUST
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-HE3
WHEREAS, Xxxxxx Xxxxxxx ABS Capital I Inc. (the "Depositor") is acting
as depositor with respect to (i) the Prospectus (the "Base Prospectus"), dated
May 10, 2005, (ii) the Prospectus Supplement, dated August 29, 2005 (the
"Prospectus Supplement" and together with the Base Prospectus, the "Prospectus")
and (iii) the Confidential Private Placement Memorandum, dated August 30, 2005
(the "Private Placement Memorandum" and together with the Prospectus, the
"Offering Documents"), relating to IXIS Real Estate Capital Trust 2005-HE3,
Mortgage Pass-Through Certificates, Series 2005-HE3, (the "Certificates") to be
issued pursuant to a Pooling and Servicing Agreement, dated as of August 1, 2005
(the "P&S"), among IXIS Real Estate Capital Inc., as Unaffiliated Seller (the
"Unaffiliated Seller"), the Depositor, Countrywide Home Loans Servicing LP, as
Servicer (the "Servicer") Deutsche Bank National Trust Company, as custodian
(the "Custodian") and JPMorgan Chase Bank, N.A., as trustee (the "Trustee");
WHEREAS, the Depositor purchased the Mortgage Loans from the
Unaffiliated Seller pursuant to an Unaffiliated Seller's Agreement dated as of
August 1, 2005 (the "Unaffiliated Seller's Agreement"), by and between the
Depositor and the Unaffiliated Seller;
WHEREAS, Xxxxxx Xxxxxxx & Co. Incorporated, as initial purchaser (the
"Initial Purchaser"), is agreeing, subject to the terms and conditions of the
Certificate Purchase Agreement, dated as of August 30, 2005 (the "Certificate
Purchase Agreement"), between the Depositor and the Initial Purchaser, to
purchase on the Closing Date described therein the Class A-1 Certificates (the
"Class A-1 Certificates") as described therein; and
WHEREAS, Xxxxxx Xxxxxxx & Co. Incorporated, as representative (the
"Representative"), of itself and the other underwriters named in the
Underwriting Agreement (collectively, the "Underwriters"), dated August 30, 2005
(the "Underwriting Agreement"), between the Depositor and the Representative
pursuant to which the Representative on behalf of the Underwriters is agreeing,
subject to the terms and conditions therein, that the Underwriters purchase on
the Closing Date described therein the Offered Certificates (the "Offered
Certificates") as described therein.
NOW THEREFORE, in consideration of the agreements contained herein,
and other valuable consideration the receipt and sufficiency of which is hereby
acknowledged, the Unaffiliated Seller, the Depositor and the Representative
agree as follows:
ARTICLE I Indemnification and Contribution.
Section 1.01 The Unaffiliated Seller agrees to indemnify and hold harmless
the Depositor, the Initial Purchaser and each Underwriter, their respective
officers and directors and each person, if any, who controls the Depositor, the
Initial Purchaser or any Underwriter within the meaning of either Section 15 of
the Securities Act of 1933, as amended (the "1933 Act") or Section 20 of the
Securities Exchange Act of 1934, as amended (the "1934 Act"), against any
and all losses, claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the 1933 Act, the 1934 Act or other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based in whole or in part upon any untrue statement
or alleged untrue statement of a material fact contained in the Prospectus
Supplement, the Private Placement Memorandum or in the Comp Materials or any
omission or alleged omission to state in the Prospectus Supplement, the Private
Placement Memorandum or in the Comp Materials a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, or any such untrue
statement or omission or alleged untrue statement or alleged omission made in
any amendment of or supplement to the Prospectus Supplement, the Private
Placement Memorandum or to the Comp Materials, and agrees to reimburse the
Depositor, the Initial Purchaser and each Underwriter and each such officer,
director and controlling person promptly upon demand for any legal or other
expenses reasonably incurred by any of them in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred; provided however, that the Unaffiliated
Seller shall be liable in any such case only to the extent that any such loss,
claim, damage, liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or alleged omission made in
reliance upon and in conformity with the Seller Information. The foregoing
indemnity agreement is in addition to any liability which the Unaffiliated
Seller may otherwise have to the Initial Purchaser, the Underwriters, the
Depositor or any such director, officer or controlling person of the Initial
Purchaser, the Underwriters or of the Depositor.
Section 1.02 The Initial Purchaser agrees to indemnify and hold harmless
the Unaffiliated Seller, its officers and directors and each person, if any, who
controls the Unaffiliated Seller within the meaning of either Section 15 of the
1933 Act or Section 20 of the 1934 Act, against any and all losses, claims,
damages or liabilities, joint or several, to which the Unaffiliated Seller may
become subject under the 1933 Act, the 1934 Act or other federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based in whole or in part upon any untrue statement or alleged untrue
statement of a material fact contained in the Private Placement Memorandum or
any omission or alleged omission to state in the Private Placement Memorandum a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made, not misleading,
or any such untrue statement or omission or alleged untrue statement or alleged
omission made in any amendment of or supplement to the Private Placement
Memorandum, and including in each case any information included therein by its
incorporation by reference into the Offering Documents and agrees to reimburse
the Unaffiliated Seller, and each such director, officer or controlling person
for any legal or other expenses reasonably incurred by any of them in connection
with investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred; provided
however, that the Initial Purchaser shall be liable in any such case only to the
extent that any such loss, claim, damage, liability or action arises out of, or
is based upon, any untrue statement or alleged untrue statement or omission or
alleged omission made in reliance upon and in conformity with the Initial
Purchaser Information. The foregoing indemnity agreement is in addition to any
liability which the Initial Purchaser may otherwise have to the Unaffiliated
Seller or any such director, officer or controlling person of the Unaffiliated
Seller.
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Section 1.03 Each Underwriter, severally but not jointly, agrees to
indemnify and hold harmless the Unaffiliated Seller, its officers and directors
and each person, if any, who controls the Unaffiliated Seller within the meaning
of either Section 15 of the 1933 Act or Section 20 of the 1934 Act, against any
and all losses, claims, damages or liabilities, joint or several, to which the
Unaffiliated Seller may become subject under the 1933 Act, the 1934 Act or other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based in whole or in part upon any untrue statement
or alleged untrue statement of a material fact contained in the Prospectus
Supplement or any omission or alleged omission to state in the Prospectus
Supplement a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances in which they were made,
not misleading, or any such untrue statement or omission or alleged untrue
statement or alleged omission made in any amendment of or supplement to the
Prospectus Supplement, and including in each case any information included
therein by its incorporation by reference into the Prospectus and agrees to
reimburse the Unaffiliated Seller, and each such director, officer or
controlling person for any legal or other expenses reasonably incurred by any of
them in connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such expenses are
incurred; provided however, that the Underwriters shall be liable in any such
case only to the extent that any such loss, claim, damage, liability or action
arises out of, or is based upon, any untrue statement or alleged untrue
statement or omission or alleged omission made in reliance upon and in
conformity with the Underwriter Information. The foregoing indemnity agreement
is in addition to any liability which the Underwriter may otherwise have to the
Unaffiliated Seller or any such director, officer or controlling person of the
Unaffiliated Seller.
As used herein:
"Depositor Information" means the statements set forth in the
Prospectus Supplement under the caption "Transaction Overview - Parties - The
Depositor".
"Initial Purchaser Information" means the statements set forth under
the caption "Method of Placement" in the Private Placement Memorandum.
"Seller Information" means (x) the information and data concerning the
Mortgage Loans set forth on any computer tape (or other electronic or printed
medium) furnished to the Depositor and/or the Unaffiliated Seller, in the Comp
Materials, (as defined below) to the extent such Comp Materials were approved by
the Unaffiliated Seller, and (y) the information set forth in the Prospectus
Supplement, other than the Depositor Information, the Servicer Information, the
Initial Purchaser Information and the Underwriter Information.
"Servicer Information" means the information concerning the Servicer
under the caption "Transaction Overview--The Servicer" and "The Servicer".
"Underwriter Information" means the statements set forth (i) in the
last paragraph on the cover page of the Prospectus Supplement, (ii) and under
the caption "Plan of Distribution" in the Prospectus Supplement.
The terms "Collateral term sheet" and "Structural term sheet" shall
have the respective meanings assigned to them in the February 13, 1995 letter
(the "PSA Letter") of
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Cleary, Gottlieb, Xxxxx & Xxxxxxxx on behalf of the Public Securities
Association (which letter, and the SEC staff's response thereto, were publicly
available February 17, 1995). The term "Collateral term sheet" as used herein
includes any subsequent Collateral term sheet that reflects a substantive change
in the information presented. The term "Computational Materials" has the meaning
assigned to it in the May 17, 1994 letter (the "Xxxxxx letter" and together with
the PSA Letter, the "No-Action Letters") of Xxxxx & Xxxx on behalf of Xxxxxx,
Peabody & Co., Inc. (which letter, and the SEC staff's response thereto, were
publicly available May 20, 1994). The term "Comp Materials" as used herein means
collectively Collateral Term Sheets, Structural Term Sheet and Computational
Materials.
Section 1.04 Promptly after receipt by any indemnified party under this
Section 1 of notice of any claim or the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against any
indemnifying party under this Section 1, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section 1 except to the extent it has
been materially prejudiced by such failure; and provided further, however, that
the failure to notify any indemnifying party shall not relieve it from any
liability which it may have to any indemnified party otherwise than under this
Section 1.
If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume
the defense thereof with counsel reasonably satisfactory to the indemnified
party. After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, except as provided in
the following paragraph, the indemnifying party shall not be liable to the
indemnified party under this Section 1 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation.
Any indemnified party shall have the right to employ separate counsel
in any such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless: (i) the employment thereof has been specifically authorized by the
indemnifying party in writing; (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party and in the reasonable judgment of such counsel it is
advisable for such indemnified party to employ separate counsel; or (iii) the
indemnifying party has failed to assume the defense of such action and employ
counsel reasonably satisfactory to the indemnified party, in which case, if such
indemnified party notifies the indemnifying party in writing that it elects to
employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such action
on behalf of such indemnified party, it being understood, however, the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to local counsel) at any time for all such indemnified parties, which
firm shall be designated in writing by (x) the Representative, if the
indemnified
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parties under this Section 1 consist of the Initial Purchaser, the Underwriters
and/or the Depositor or any of their respective directors, officers or
controlling persons, or (y) by the Unaffiliated Seller if the indemnified
parties under this Section 1 consist of the Unaffiliated Seller or any of its
respective directors, officers or controlling persons.
Each indemnified party, as a condition of the indemnity agreements
contained in this Section 1, shall cooperate with the indemnifying party in the
defense of any such action or claim. No indemnifying party shall be liable for
any settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with its written
consent or if there be a final judgment for the plaintiff in any such action,
the indemnifying party agrees to indemnify and hold harmless any 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 the reasonable fees and expenses of counsel, 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.
Section 1.05 If the indemnification provided for in this Section 1 is
unavailable to an indemnified party under Sections 1(a) or 1(b) hereof or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then (i) the 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, in
such proportion as is appropriate to reflect the relative benefits received by
the indemnifying party and the indemnified party, respectively, from the
issuance of the Offered Certificates or the Class A-1 Certificates, as
applicable, or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the indemnifying party and the indemnified party, respectively, in connection
with the statements or omissions that result in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Unaffiliated Seller on the one hand and the
Depositor, the Initial Purchaser and the Underwriters on the other shall be
deemed to be in such proportion as the total net proceeds from the offering
received by the Unaffiliated Seller bears to the total underwriting discounts
and commissions. The relative fault of the indemnified party and indemnifying
party 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 such
parties and their relative knowledge, access to information and opportunity to
correct or prevent such statement or omission and any other equitable
considerations.
The Depositor, the Initial Purchaser, the Underwriters and the
Unaffiliated Seller agree that it would not be just and equitable if
contribution pursuant to this Section 1(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the considerations referred to in this Section 1(d) above. The amount paid or
payable
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by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in this Section 1(d) 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, except where the indemnified party is required to bear
such expenses pursuant to this Section 1, which expenses the indemnifying party
shall pay, at the request of the indemnified party, to the extent that the
indemnifying party will be ultimately obligated to pay such expenses. In the
event that any expenses so paid by the indemnifying party are subsequently
determined to not be required to be borne by the indemnifying party hereunder,
the indemnified shall promptly refund the amount so paid to the indemnifying
party. In no case shall the Initial Purchaser or any Underwriter, together with
the Depositor be responsible for any amount in excess of (x) the amount received
by the Initial Purchaser in connection with its resale of the Class A-1
Certificates or by such Underwriter in connection with its resale of the Offered
Certificates, over (y) the amount paid to the Depositor by the Initial Purchaser
for the Class A-1 Certificates or by such Underwriter for the Offered
Certificates, as applicable. No person guilty of fraudulent misrepresentations
(within the meaning of Section 11(f) of the 1933 Act), shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
Section 1.06 The indemnity and contribution agreements contained in this
Section 1 and the representations and warranties set forth in Section 2 shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by the Depositor, its directors
or officers or any person controlling the Depositor, by the Initial Purchaser,
its directors or officers or any person controlling the Initial Purchaser, by or
on behalf of the Underwriter, its directors or officers or any person
controlling the Underwriter or by or on behalf of the Unaffiliated Seller and
each of their respective directors, officers or any person controlling the
Sellers, and (iii) acceptance of and payment for any of the Offered Certificates
or the Class A-1 Certificates, as applicable.
ARTICLE II Representations and Warranties. The Unaffiliated Seller
represents that:
(a) the Unaffiliated Seller is validly existing and in good standing
under the laws of its jurisdiction of formation or incorporation, as applicable,
and has full power and authority to own its assets and to transact the business
in which it is currently engaged. The Unaffiliated Seller is duly qualified to
do business and is in good standing in each jurisdiction in which the character
of the business transacted by it or any properties owned or leased by it
requires such qualification and in which the failure so to qualify would have a
material adverse effect on the business, properties, assets or condition
(financial or otherwise) of the Unaffiliated Seller;
(b) the Unaffiliated Seller is not required to obtain the consent of
any other person or any consent, license, approval or authorization from, or
registration or declaration with, any governmental authority, bureau or agency
in connection with the execution, delivery, performance, validity or
enforceability of this Agreement;
(c) the execution, delivery and performance of this Agreement by the
Unaffiliated Seller will not violate any provision of any existing law or
regulation or any order decree of any court applicable to the Unaffiliated
Seller or any provision of the charter or bylaws of the Unaffiliated Seller, or
constitute a material breach of any mortgage, indenture, contract or
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other agreement to which the Unaffiliated Seller is a party or by which it may
be bound;
(d) no proceeding of or before any court, tribunal or governmental
body is currently pending or, to the knowledge of the Unaffiliated Seller,
threatened against the Unaffiliated Seller or any of its properties or with
respect to this Agreement or the Certificates in either case, which would have a
material adverse effect on the business, properties, assets or condition
(financial or otherwise) of the Unaffiliated Seller;
(e) the Unaffiliated Seller has full power and authority to make,
execute, deliver and perform this Agreement and all of the transactions
contemplated hereunder, and has taken all necessary corporate action to
authorize the execution, delivery and performance of this Agreement. When
executed and delivered, this Agreement will constitute the legal, valid and
binding obligation of the Unaffiliated Seller enforceable in accordance with its
terms, except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally, by the availability of equitable remedies, and by
limitations of public policy under applicable securities law as to rights of
indemnity and contribution thereunder; and
(f) this Agreement has been duly executed and delivered by the
Unaffiliated Seller.
ARTICLE III Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Depositor will be mailed,
delivered or telegraphed and confirmed to Xxxxxx Xxxxxxx ABS Capital I Inc. 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx Xxx with a copy to
Xxxxxxxx Xxxxx at Xxxxxx Xxxxxxx & Co. Incorporated's legal department at 0000
Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000; if sent to the Initial Purchaser
or the Representative will be mailed, delivered or telegraphed and confirmed to
Xxxxxx Xxxxxxx & Co. Incorporated, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxxx Xxx with a copy to Xxxxxxxx Xxxxx at Xxxxxx Xxxxxxx & Co.
Incorporation's legal department at 0000 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000; or, if sent to the Unaffiliated Seller, will be mailed, delivered or
telegraphed and confirmed to the Unaffiliated Seller, 0 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: General Counsel.
ARTICLE IV Miscellaneous. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York without giving
effect to the conflict of laws provisions thereof. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and their successors and
assigns and the controlling persons referred to herein, and no other person
shall have any right or obligation hereunder. Neither this Agreement nor any
term hereof may be changed, waived, discharged or terminated orally, but only by
an instrument in writing signed by the party against whom enforcement of the
change, waiver, discharge or termination is sought. This Agreement may be
executed in counterparts, each of which when so executed and delivered shall be
considered an original, and all such counterparts shall constitute one and the
same instrument. Capitalized terms used but not defined herein shall have the
meanings provided in the P&S.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective officers hereunto duly authorized, this 30
day of August, 2005.
XXXXXX XXXXXXX ABS CAPITAL I INC.,
as Depositor
By
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Name:
Title:
XXXXXX XXXXXXX & CO. INCORPORATED,
as Initial Purchaser and
Representative
By
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Name:
Title:
IXIS REAL ESTATE CAPITAL INC.,
as Unaffiliated Seller
By
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Name:
Title:
By
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Name:
Title:
[Signature Page to the Underwriter Indemnification Agreement]
