[EXECUTION COPY]
XXXXXX XXXXXXX ABS CAPITAL I INC.
MORTGAGE PASS-THROUGH CERTIFICATES
Series 2005-HE3
UNDERWRITING AGREEMENT
New York, New York
August 30, 2005
Xxxxxx Xxxxxxx & Co. Incorporated
as representative of the several underwriters listed on
the attached Schedule A
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs and Madams:
Xxxxxx Xxxxxxx ABS Capital I Inc., a Delaware corporation (the
"Company"), proposes to sell to you, as representative (the "Representative") of
yourself, Bank of America Securities LLC ("Bank of America") and Countrywide
Securities, Inc. ("Countrywide") (together, the "Underwriters"), IXIS Real
Estate Capital Trust 2005-HE3, Mortgage Pass-Through Certificates, Series
2005-HE3 in the original principal amount and with the designation described on
Schedule A attached hereto (the "Offered Certificates"). The Offered
Certificates will be issued pursuant to a pooling and servicing agreement dated
as of August 1, 2005 (the "Pooling and Servicing Agreement") among Xxxxxx
Xxxxxxx ABS Capital I, Inc., as depositor (the "Depositor"), Countrywide Home
Loans Servicing LP, as a servicer ("Countrywide"), Saxon Mortgage Services Inc.,
as a servicer ("Saxon" and, together with Countrywide, the "Servicers"),
Deutsche Bank National Trust Company, as custodian (the "Custodian") and as
trustee (in such capacity, the "Trustee"), JPMorgan Chase Bank, N.A. as
securities administrator ("Securities Administrator"), as swap administrator (in
such capacity, the "Swap Administrator") and as master servicer (in such
capacity, the "Master Servicer"), and IXIS Real Estate Capital Inc., as
unaffiliated seller (the "Unaffiliated Seller"). In addition to the Offered
Certificates, the Depositor will authorize for issuance the Mortgage
Pass-Through Certificates, Series 2005-HE3, Class X, Class P and Class R
pursuant to the Pooling and Servicing Agreement (the "Private Certificates" and
together with the Offered Certificates, the "Certificates").
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to the
Offered Certificates and has filed with, or mailed for filing to, the Commission
a prospectus supplement specifically relating to the Offered Certificates
pursuant to Rule 424 under the Securities Act of 1933 (the "Securities Act").
The term "Registration Statement" means such registration statement as amended
to the Closing Date (as defined herein). The term "Base Prospectus" means the
prospectus included in the Registration Statement. The term "Prospectus" means
the Base Prospectus together with the prospectus supplement specifically
relating to the Offered Certificates, as filed with, or mailed for filing to,
the Commission pursuant to Rule 424 (the "Prospectus Supplement"). The term
"preliminary prospectus" means a preliminary prospectus supplement specifically
relating to the Offered Certificates together with the Base Prospectus. Any
reference in this underwriting agreement (the "Agreement") to the Registration
Statement, any preliminary prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein pursuant to Item
12
of Form S-3 under the Securities Act, including 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
and Servicing Agreement.
I. The Company represents and warrants to and agrees with the Underwriters
that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by the
Commission.
(b) Each part of the Registration Statement, when such part became
effective, did not contain, and each such part, as amended or supplemented,
if applicable, will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, (ii) the Registration Statement
and the Prospectus comply, and, as amended or supplemented, if applicable,
will comply in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder and (iii) the
Prospectus does not contain and, as amended or supplemented, if applicable,
will not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that the
representations and warranties set forth in this paragraph I(b) do not
apply to the Excluded Information (as defined in paragraph VII hereof).
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware, has
the corporate power and authority to own its property and to conduct its
business as described in the Prospectus and to enter into and perform its
obligations under this Agreement and the Pooling and Servicing Agreement.
(d) This Agreement has been duly authorized, executed and delivered by the
Company.
(e) The Pooling and Servicing Agreement has been duly authorized, executed
and delivered by the Company and is a valid and binding agreement of the
Company, enforceable in accordance with its terms except as the
enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and to general principles of
equity regardless of whether enforcement is sought in a proceeding in
equity or at law.
(f) The direction by the Company to the Trustee to execute, authenticate
and deliver the Offered Certificates has been duly authorized by the
Company, and the Certificates, when executed and authenticated in the
manner contemplated in the
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Pooling and Servicing Agreement, and delivered to and paid for by the
Underwriters in accordance with the terms of this Agreement, will be
validly issued and outstanding and entitled to the benefits of the Pooling
and Servicing Agreement.
(g) Neither the execution and delivery by the Company of, nor the
performance by the Company of its obligations under, this Agreement or the
Pooling and Servicing Agreement, will contravene any provision of
applicable law or the certificate of incorporation or by-laws of the
Company or any agreement or other instrument binding upon the Company that
is material to the Company or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or
any subsidiary, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement and the
Pooling and Servicing Agreement, except such as may be required by the
securities or Blue Sky laws of the various states in connection with the
offer and sale of the Offered Certificates.
(h) There has not occurred any material adverse change, or any development
involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of the
Company and its subsidiaries, taken as a whole, from that set forth in the
Prospectus.
(i) There are no legal or governmental proceedings pending or threatened to
which the Company is a party or to which any of the properties of the
Company are subject that are required to be described in the Registration
Statement or the Prospectus and that are not so described, nor are there
any statutes, regulations, contracts or other documents required to be
described in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described or filed as
required.
(j) Each preliminary prospectus filed as part of the Registration Statement
as originally filed or as a part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act, complied as to form, when so
filed, in all material respects with the Securities Act and the rules and
regulations of the Commission thereunder.
(k) The Company is not an "investment company" or an entity "controlled" by
an "investment company," as such terms are defined in the Investment
Company Act of 1940, as amended.
II. The Company hereby agrees to sell the Offered Certificates to the
Underwriters, and the Underwriters, upon the basis of the representations and
warranties herein contained, but subject to the conditions hereinafter stated,
agrees to purchase the Offered
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Certificates from the Company, for a purchase price which is the sum of [__]% of
the original principal amount of the Offered Certificates.
III.
(a) The Underwriters propose to make a public offering of the Offered
Certificates as soon as this Agreement is entered into. The terms of the
public offering of the Offered Certificates are set forth in the
Prospectus.
(b) It is understood that the Underwriters may prepare and provide to
prospective investors certain Computational Materials and ABS Term Sheets
(each as defined below) in connection with the offering of the Offered
Certificates, subject to the following conditions:
i) 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,
Peabody 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").
ii) "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.
iii) 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
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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
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.
iv) 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
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as are delivered to prospective investors shall, in addition to the
foregoing delivery requirements, be delivered to the Company
simultaneously with delivery to prospective investors.
v) The Underwriters shall provide to the Company, for filing on Form 8-K
as provided in paragraph VI(e), five (5) copies (in such format as
required by the Company) of all 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 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.
vi) 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.
vii) 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
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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 Company (the "Pool Information") or (ii) contained in
(but not incorporated by reference in) any Prospectus; 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 August 30, 2005, 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."
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V. The obligations of the Underwriters hereunder are subject to the following
conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to
the Closing Date:
i) there shall not have occurred any downgrading, nor shall any notice
have been given of any intended or potential downgrading, or any
review for a possible change, that does not indicate the direction of
the possible change, in the rating accorded any of the Company's
securities by any "nationally recognized statistical rating
organization", as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act;
ii) there shall not have occurred any change, or any development involving
a prospective change, in the condition, financial or otherwise, or in
the earnings, business or operations, of the Company and its
subsidiaries, taken as a whole, from that set forth in the Prospectus,
that in the judgment of the Underwriters, is material and adverse and
that makes it, in the judgment of the Underwriters, impracticable to
market the Offered Certificates on the terms and in the manner
contemplated in the Prospectus; and
iii) the Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of the Company, to the effect set forth in clause (i) above and to the
effect that the representations and warranties of the Company
contained in this Agreement are true and correct as of the Closing
Date and that the Company has complied with all of the agreements and
satisfied all of the conditions on its part to be performed or
satisfied on or before the Closing Date.
The officer signing and delivering such certificate may rely upon the
best of his knowledge as to proceedings threatened.
(b) The Underwriters shall have received on the Closing Date an opinion of
counsel for the Company, dated the Closing Date, to the effect set forth in
Exhibit A.
(c) The Underwriters shall have received on the Closing Date an opinion of
counsel to the Underwriters in form and substance acceptable to them.
(d) The Underwriters shall have received on the Closing Date an opinion of
counsel to Countrywide, in form and substance acceptable to the
Underwriters.
(e) The Underwriters shall have received on the Closing Date an opinion of
counsel to Saxon, in form and substance acceptable to the Underwriters.
(f) The Underwriters shall have received on the Closing Date an opinion of
counsel to the Master Servicer, the Swap Administrator and Securities
Administrator, in form and substance acceptable to the Underwriters.
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(g) The Underwriters shall have received on the Closing Date an opinion of
counsel to the Custodian and the Trustee in form and substance acceptable
to them.
(h) The Underwriters shall have received on the Closing Date an opinion of
counsel to the Unaffiliated Seller, in form and substance acceptable to the
Underwriters.
(i) The Underwriters shall have received on the Closing Date an opinion of
counsel to the Company with respect to certain matters relating to the
transfer of the Mortgage Loans to the Company and from the Company to the
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.
(j) The Depositor shall have received a letter from Xxxxx'x to the effect
that it has assigned ratings of "Aaa," "Aaa," "Aaa," "Aaa," "Aa1," "Aa2,"
"Aa3," "A1," "A2," "A3," "Baa1," "Baa2," "Baa3" and "Ba1" to the Class A-1,
Class A-2, Class A-3, Class A-4, Class M-1, Class M-2, Class M-3, Class
M-4, Class M-5, Class M-6, Class B-1, Class B-2, Class B-3 and Class B-4
Certificates, respectively.
(k) The Depositor shall have received a letter from S&P to the effect that
it has assigned ratings of "AAA," "AAA," "AAA," "AAA," "AA+," "AA," "AA,"
"AA," "A+," "A+," "A-," "BBB+," "BBB+" and "BBB-" to the Class A-1, Class
A-2, Class A-3, Class A-4, Class M-1, Class M-2, Class M-3, Class M-4,
Class M-5, Class M-6, Class B-1, Class B-2, Class B-3 and Class B-4
Certificates, respectively.
(l) The Depositor shall have received a letter from Fitch to the effect
that it has assigned ratings of "AAA," "AAA," "AAA," "AAA," "AA+," "AA+,"
"AA," "AA-," "A+," "A," "A-," "BBB+," "BBB+" and "BBB" to the Class A-1,
Class A-2, Class A-3, Class A-4, Class M-1, Class M-2, Class M-3, Class
M-4, Class M-5, Class M-6, Class B-1, Class B-2, Class B-3 and Class B-4
Certificates, respectively.
(m) The Underwriters shall have received on the Closing Date a letter of
Deloitte & Touche LLP, dated the date of this Agreement in form and
substance satisfactory to the Underwriters, regarding certain specified
procedures performed thereby with respect to information set forth in the
Prospectus.
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
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Prospectus and any supplements and amendments thereto as the Underwriters
may reasonably request.
(b) Before amending or supplementing the Registration Statement or the
Prospectus with respect to the Offered Certificates, to furnish the
Underwriters a copy of each such proposed amendment or supplement and not
to file any such proposed amendment or supplement to which the Underwriters
reasonably objects.
(c) If, during such period after the first date of the public offering of
the Offered Certificates, as in the opinion of counsel for the Underwriters
the Prospectus is required by law to be delivered in connection with sales
by the Underwriters, any event shall occur or condition exist as a result
of which it is necessary to amend or supplement the Prospectus in order to
make the statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or if it is
necessary to amend or supplement the Prospectus to comply with law,
forthwith to prepare and furnish, at its own expense, to the Underwriters,
either amendments or supplements to the Prospectus so that the statements
in the Prospectus as so amended or supplemented will not, in the light of
the circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus will comply with law.
(d) To endeavor to qualify the Offered Certificates for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the
Underwriters shall reasonably request and to pay all expenses (including
fees and disbursements of counsel) in connection with such qualification
and in connection with the determination of the eligibility of the Offered
Certificates for investment under the laws of such jurisdictions as the
Underwriters may designate.
(e) To file in a timely manner with the Commission 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).
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,
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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 (clause (i) and (ii) collectively, the
"Underwriter Information"), (iii) the information concerning Countrywide under
the captions "Transaction Overview - The Servicers" and "The Servicers" in the
Prospectus Supplement (the "Servicer Information") and (iv) the information and
data concerning the Mortgage Loans set forth on any computer tape (or other
electronic or printed medium) furnished to the Company and any other information
set forth in the Prospectus Supplement other than the Underwriter Information,
the Servicer Information and the information underlining the caption "The
Depositor" in the Prospectus (such information, together with the Underwriter
Information, the Issuer Information and the Servicer Information, the "Excluded
Information").
Each Underwriter, severally and not jointly, agrees to indemnify and hold
harmless the Company and its directors and officers who sign the Registration
Statement and any person controlling the Company within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, to the same
extent as the foregoing indemnity from the Company to the Underwriters, but only
with reference to (i) information relating to the Underwriters furnished in
writing to the Company by any Underwriter specifically for use in connection
with the preparation of the Registration Statement, any preliminary prospectus
or the Prospectus or any revision or amendment thereof or supplement thereto and
(ii) any 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 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
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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, 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
12
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 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
13
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.
The Company acknowledges that in connection with the offering of the
Certificates (a) the Underwriters have acted at arms length, are not agents of,
and owe no fiduciary duties to, the Company or any other person, (b) the
Underwriters owe the Company only those duties and obligations set forth in this
Agreement and (c) the Underwriters may have interests that differ from those of
the Company. The Company waives to the full extent permitted by applicable law
any claims it may have against the Underwriters arising from an alleged breach
of fiduciary duty in connection with the offering of the Certificates.
This Agreement, together with any contemporaneous written agreements and
any prior written agreements (to the extent not superseded by this Agreement)
that relate to the offering of the Offered Certificates, represents the entire
agreement between the Company the Underwriters with respect to the preparation
of the Prospectus, and the conduct of the offering, and the purchase and sale of
the Offered Certificates.
All communications hereunder shall be in writing and effective only upon
receipt and, if sent to the Company, will be mailed, hand delivered, couriered
or sent by facsimile transmission to it at 0000 Xxxxxxxx, Xxx Xxxx, XX 00000,
Attention: Securitized Products Group, with a copy to 0000 Xxxxxxxx, 00xx Xxxxx,
Xxx Xxxx, XX 00000, Attention: 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 Xxxxxxxx, 00xx Xxxxx, 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.
[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:
------------------------------------
Name:
Title:
Accepted and agreed to by:
XXXXXX XXXXXXX & CO. INCORPORATED
By:
------------------------------------
Name:
Title:
[Signature Page to the Underwriting Agreement]
SCHEDULE A
<TABLE>
----------------------------------------------------------------------------------------------------
CLASS A-1 CLASS A-2 CLASS A-3 CLASS A-4
UNDERWRITERS CERTIFICATES CERTIFICATES CERTIFICATES CERTIFICATES
---------------------------------------- ------------ ------------ ------------ ------------
Xxxxxx Xxxxxxx & Co. Incorporated $209,352,907 $242,226,667 $81,893,333 $62,995,707
Banc of America Securities LLC $ 1,414,547 $ 1,636,667 $ 553,333 $ 425,647
Countrywide Securities Corporation. $ 1,414,547 $ 1,636,667 $ 553,333 $ 425,647
------------ ------------ ----------- -----------
TOTAL................................... $212,182,000 $245,500,000 $83,000,000 $63,847,000
----------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
----------------------------------------------------------------------------------------------------------------------------------
CLASS M-1 CLASS M-2 CLASS M-3 CLASS M-4 CLASS M-5 CLASS M-6
UNDERWRITERS CERTIFICATES CERTIFICATES CERTIFICATES CERTIFICATES CERTIFICATES CERTIFICATES
---------------------------------------- ------------ ------------ ------------ ------------ ------------ ------------
Xxxxxx Xxxxxxx & Co. Incorporated $29,160,933 $26,130,880 $15,148,293 $14,390,533 $12,876,000 $12,119,227
Banc of America Securities LLC $ 197,033 $ 176,560 $ 102,353 $ 97,233 $ 87,000 $ 81,887
Countrywide Securities Corporation. $ 197,033 $ 176,560 $ 102,353 $ 97,233 $ 87,000 $ 81,887
----------- ----------- ----------- ----------- ----------- -----------
TOTAL $29,555,000 $26,484,000 $15,353,000 $14,585,000 $13,050,000 $12,283,000
----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
----------------------------------------------------------------------------------------------------
CLASS B-1 CLASS B-2 CLASS B-3 CLASS B-4
UNDERWRITERS CERTIFICATES CERTIFICATES CERTIFICATES CERTIFICATES
---------------------------------------- ------------ ------------ ------------ ------------
Xxxxxx Xxxxxxx & Co. Incorporated $10,603,707 $9,846,933 $5,680,240 $7,574,640
Banc of America Securities LLC $ 71,647 $ 66,533 $ 38,380 $ 51,180
Countrywide Securities Corporation $ 71,647 $ 66,533 $ 38,380 $ 51,180
----------- ---------- ---------- ----------
TOTAL $10,747,000 $9,980,000 $5,757,000 $7,677,000
----------------------------------------------------------------------------------------------------
</TABLE>
S-A-1
EXHIBIT A
OPINION OF XXXXX XXXXXXXXXX LLP,
COUNSEL FOR THE COMPANY
A-1
