Exhibit 1.1
XXXXXX XXXXXXX XXXX XXXXXX CAPITAL I INC.
MORTGAGE PASS-THROUGH CERTIFICATES
Series 0000-XX0
XXXXXXXXXXXX XXXXXXXXX
Xxx Xxxx, Xxx Xxxx
December 14, 2001
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:
Xxxxxx Xxxxxxx Xxxx Xxxxxx Capital I Inc., a Delaware
corporation (the "COMPANY"), proposes to sell to you, as representative (the
"REPRESENTATIVE") of yourself, Xxxxxxxx Capital Partners, L.P. and Xxxxxxxx &
Partners, L.P. (together, the "UNDERWRITERS"), Xxxxxx Xxxxxxx Xxxx Xxxxxx
Capital I, Inc. Trust 2001-NC4 Mortgage Pass-Through Certificates, Series
2001-NC4 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 December 1, 2001 (the "POOLING AND SERVICING AGREEMENT") among Xxxxxx
Xxxxxxx Xxxx Xxxxxx Capital I, Inc., as depositor (the "DEPOSITOR"), Ocwen
Federal Bank FSB, as servicer ("OCWEN"), NC Capital Corporation, as responsible
party ("NCCC"), and U.S. Bank, National Association, as trustee (the "TRUSTEE").
In addition to the Offered Certificates, the Depositor will authorize for
issuance the Mortgage Pass-Through Certificates, Series 2001-NC4, Class A-1,
Class X, Class P and Class R pursuant to the Pooling and Servicing Agreement
(the "PRIVATE CERTIFICATES" and together, 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 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.
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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) (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 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 (A) the information contained in the
Registration Statement or the Prospectus or any revision or amendment
thereof or supplement thereto based upon and in conformity with
information furnished in writing to the Company by any Underwriter
specifically for use in connection with the preparation of the
Registration Statement or the Prospectus or any revision or amendment
thereof or supplement thereto, and (B) any information in any
Computational Materials or ABS Terms Sheets (each as hereinafter
defined) required to be provided by any Underwriter to the Company
pursuant to paragraph III(B).
(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.
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(f) The direction by the Company to the Trustee to execute,
authenticate and deliver the Offered Certificates has been duly
authorized by the Company, and the Offered Certificates, when executed
and authenticated in the manner contemplated in the Pooling 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.
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.
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II.
The Company hereby agrees to sell the Offered Certificates to the
Underwriters, and the Underwriters, upon the basis of the representations and
warranties herein contained, but subject to the conditions hereinafter stated,
agrees to purchase the Offered Certificates from the Company, for a purchase
price which is the sum of 99.70% 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:
(a) In connection with the use of Computational Materials, the
Underwriters shall comply with all applicable requirements of the
No-Action Letter of May 20, 1994, issued by the Commission to Xxxxxx,
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").
(b) "COMPUTATIONAL MATERIALS" as used herein shall have the meaning
given such term in the No-Action Letters, but shall include only those
Computational Materials that have been prepared or delivered to
prospective investors by or at the direction of the Underwriters. "ABS
TERM SHEETS" and "COLLATERAL TERM SHEETS" as used herein shall have
the meanings given such terms in the PSA Letter but shall include only
those ABS Term Sheets or Collateral Term Sheets that have been
prepared or delivered to prospective investors by or at the direction
of the Underwriters.
(c) All Computational Materials and ABS Term Sheets provided to
prospective investors that are required to be filed pursuant to the
No-Action Letters shall bear a legend on each page including the
following statement:
"THIS INFORMATION IS BEING DELIVERED TO A SPECIFIC NUMBER OF
PROSPECTIVE SOPHISTICATED INVESTORS IN ORDER TO ASSIST THEM
IN DETERMINING WHETHER THEY HAVE AN INTEREST IN THE TYPE OF
SECURITY DESCRIBED HEREIN. IT HAS BEEN PREPARED SOLELY FOR
INFORMATION PURPOSES AND IS NOT AN OFFER TO BUY OR SELL OR A
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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.
(d) Any Computational Materials and ABS Term Sheets are subject to the
review by and approval of the Company prior to their distribution to
any prospective investors and a copy of such Computational Materials
and ABS Term Sheets as are delivered to prospective investors shall,
in addition to the foregoing delivery requirements, be delivered to
the Company simultaneously with delivery to prospective investors.
(e) The Underwriters shall provide to the Company, for filing on Form
8-K as provided in paragraph VI(e), five (5) copies (in such format as
required by the Company) of all Computational Materials and ABS Term
Sheets that are required to be filed with the Commission pursuant to
the No-Action Letters. The Underwriters may provide copies of the
forgoing in a consolidated or aggregate form that includes all
information required to be filed. All Computational Materials and ABS
Term Sheets described in this paragraph III(B)(e) must be provided to
the Company not later than 10:00 a.m. New York time one business day
before filing thereof is required pursuant to the terms of this
Agreement. Each Underwriter agrees that it will not provide to any
investor or prospective investor in the Offered Certificates any
Computational Materials or ABS Term Sheets on or after the day on
which Computational Materials and ABS Term Sheets are required to be
provided to the Company pursuant to this paragraph 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
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Computational Materials or ABS Term Sheets are preceded or accompanied
by the delivery of a Prospectus to such investor or prospective
investor.
(f) All information included in the Computational Materials and ABS
Term Sheets shall be generated based on substantially the same
methodology and assumptions that are used to generate the information
in the Prospectus Supplement as set forth therein; provided, however,
that the Computational Materials and ABS Term Sheets may include
information based on alternative methodologies or assumptions if
specified therein.
(g) The Company shall not be obligated to file any Computational
Materials or ABS Term Sheets that in the reasonable determination of
the Company are not required to be filed pursuant to the No-Action
Letters.
C. Each Underwriter severally represents and warrants and agrees
with the Company that as of the date hereof and as of the Closing Date that: (i)
the Computational Materials and ABS Term Sheets furnished to the Company
pursuant to paragraph III(B)(e) constitute (either in original, aggregated or
consolidated form) all of the materials furnished to prospective investors by
the Underwriter prior to the time of delivery thereof to the Company that are
required to be filed with the Commission with respect to the Offered
Certificates in accordance with the No-Action Letters; (ii) on the date any such
Computational Materials and ABS Term Sheets with respect to such Certificates
(or any written or electronic materials furnished to prospective investors on
which the Computational Materials and ABS Term Sheets are based) were last
furnished to each prospective investor and on the date of delivery thereof to
the Company pursuant to paragraph III(B)(e) and on the related Closing Date,
such Computational Materials and ABS Term Sheets (or materials) were accurate in
all material respects when read in conjunction with the Prospectus; (iii) the
Underwriters have not and will not represent to potential investors that any
Computational Materials and ABS Term Sheets were prepared or disseminated on
behalf of the Company; and (iv) all Computational Materials and ABS Terms Sheets
(or underlying materials distributed to prospective investors on which the
Computational Materials and ABS Term Sheets were based) contained and will
contain the legend in the form set forth in paragraph III(B)(c) (or in such
other form previously approved in writing by the Company).
Notwithstanding the foregoing, the Underwriters make no representation
or warranty as to whether any Computational Materials or ABS Term Sheets (or any
written or electronic materials furnished to prospective investors on which the
Computational Materials or ABS Term Sheets are based) included or will include
any inaccurate statement resulting directly from any error contained in the
information (i) regarding the Mortgage Loans, the related mortgagors and/or the
related Mortgaged Properties (but only to the extent any untrue statement or
omission arose from errors or omissions in the information concerning the
Mortgage Loans, the related mortgagors and/or the related Mortgage Properties,
as applicable, provided to the Underwriters by the Depositor (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
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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, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 A.M., local
time, on December 27, 2001, or at such other time or place on the same or such
other date, not later than five business days after the date of this Agreement,
or as may be agreed to by the Company and Xxxxxx Xxxxxxx & Co. Incorporated.
Payment for the Offered Certificates shall be made upon delivery to the
Underwriters of the Offered Certificates registered in such names and in such
denominations as the Underwriters shall request in writing not less than two
full business days prior to the date of delivery. The time and date of such
payment and delivery with respect to the Offered Certificates are herein
referred to as the "CLOSING DATE."
V.
The obligations of the Underwriters hereunder are subject to the following
conditions:
A. Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading, or
any review for a possible change, that does not indicate the direction
of the possible change, in the rating accorded any of the Company's
securities by any "nationally recognized statistical rating
organization", as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act;
(ii) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations, of the Company
and its subsidiaries, taken as a whole, from that set forth in the
Prospectus, that in the judgment of the Underwriters, is material and
adverse and that makes it, in the judgment of the Underwriters,
impracticable to market the Offered Certificates on the terms and in
the manner contemplated in the Prospectus; and
(iii) the Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of the Company, to the 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.
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The officer signing and delivering such certificate may rely
upon the best of his knowledge as to proceedings threatened.
B. The Underwriters shall have received on the Closing Date an
opinion of counsel for the Company, dated the Closing Date, to the effect set
forth in Exhibit A.
C. The Underwriters shall have received on the Closing Date an
opinion of counsel to the Underwriters in form and substance acceptable to them.
D. The Underwriters shall have received on the Closing Date an
opinion of counsel of to Ocwen, in form and substance acceptable to the
Underwriters.
E. The Underwriters shall have received on the Closing Date an
opinion of counsel to the Trustee in form and substance acceptable to them.
F. The Underwriters shall have received on the Closing Date an
opinion of counsel of to NCCC, in form and substance acceptable to the
Underwriters.
G. The Underwriters shall have received on the Closing Date an
opinion of counsel to the Company with respect to certain matters relating to
the transfer of the Mortgage Loans to the Depositor and from the Depositor to
the Trustee, and such counsel shall have consented to reliance on such opinion
by the Rating Agencies as though such opinion had been addressed to them.
H. The Class A-2, Class M-1, Class M-2 and Class B-1 Certificates
shall have been rated "Aaa", "Aa2", "A2",. and "Baa3", respectively, by Xxxxx'x
Investors Service, Inc. and "AAA," "AA," "A" and "BBB-," respectively, by [each
of Fitch, Inc. and ]Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc.
I. 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
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
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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, Peabody 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, 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
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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 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.
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 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
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party in accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding.
To the extent the indemnification provided for in this Article VII is
unavailable to an indemnified party under the first or second paragraph of this
Article VII or is insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand, and the Underwriters on the
other, from the offering of the Offered Certificates or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand, and of the Underwriters on the other, in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand, and the Underwriters on the other, in connection
with the offering of the Offered Certificates shall be deemed to be in the same
proportions that the total net proceeds from the offering of the Offered
Certificates (before deducting expenses) received by the Company and the total
underwriting discounts and commissions received by the Underwriters in respect
thereof respectively, bear to the 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.
11
The indemnity and contribution agreements contained in this Article
VII and the representations and warranties of the Company in this Agreement
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
the Underwriters or any person controlling the Underwriters or by or on behalf
of the Company, its directors or officers or any person controlling the Company
and (iii) acceptance of any payment for any of the Offered Certificates.
VIII.
This Agreement shall be subject to termination in the Underwriters'
absolute discretion, by notice given to the Company, if (a) after the execution
and delivery of this Agreement and prior to the Closing Date: (i) trading
generally shall have been suspended or materially limited on or by, as the case
may be, any of the New York Stock Exchange, the American Stock Exchange, the
National Association of Securities Dealers, Inc., the Chicago Board of Options
Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii)
trading of any securities of the Company shall have been suspended on any
exchange or in any over-the-counter market, (iii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities, or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in the judgment of the Underwriters, is material and
adverse and (b) in the case of any of the events specified in clauses (a)(i)
through (iv), such event singly or together with any other such event, makes it,
in the judgment of the Underwriters, impracticable to market the Offered
Certificates on the terms and in the manner contemplated in the Prospectus.
IX.
If this Agreement shall be terminated by the Underwriters because of
any failure or refusal on the part of the Company to comply with the terms or to
fulfill any of the conditions of this Agreement, or if for any reason the
Company shall be unable to perform its obligations under this Agreement, the
Company will reimburse the Underwriters for all out-of-pocket expenses
(including the fees and disbursements of its counsel) reasonably incurred by the
Underwriters in connection with the Offered Certificates.
All communications hereunder shall be in writing and effective only upon receipt
and, if sent to the Company, will be mailed, hand delivered, couriered or sent
by facsimile transmission to it at 0000 Xxxxxxxx, Xxx Xxxx, XX 00000, Attention:
Securitized Products Group, with a copy to 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, XX 00000, Attention: Xxxxxxx Xxxxxx, or, if sent to Xxxxxx Xxxxxxx & Co.
Incorporated, will be mailed, hand delivered, couriered or sent by facsimile
transmission to it at 0000 Xxxxxxxx, Xxx Xxxx, XX 00000, Attention: Securitized
Products Group, with a copy to 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000,
Attention: Xxxxxxx Xxxxxx, or if sent to Xxxxxxxx Capital Partners, L.P., will
be mailed, hand delivered, couriered or sent by facsimile transmission and
confirmed to it at Xxxxxxxx Capital Partners, L.P., 00 Xxxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, XX 00000, Attention: Xxxxx X. Xxxxxxx, Xx., or, if sent to Xxxxxxxx &
Partners, L.P, will be mailed, hand delivered, couriered or sent by facsimile
transmission and confirmed to it at Xxxxxxxx & Partners, L.P., 000 Xxxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxxx Xxxxxx.
12
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
[SIGNATURE PAGE FOLLOWS]
13
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
Very truly yours,
XXXXXX XXXXXXX XXXX XXXXXX
CAPITAL I INC.
By:
--------------------
Name:
Title:
Accepted and agreed to by:
XXXXXX XXXXXXX & CO. INCORPORATED
By:
------------------------
Name:
Title:
XXXXXXXX & PARTNERS, L.P.
By:
------------------------
Name:
Title:
XXXXXXXX CAPITAL PARTNERS, L.P.
By:
------------------------
Name:
Title:
14
SCHEDULE A
Principal Amount of Principal Amount of Principal Amount of Principal Amount of
Underwriter Class A-2 Class M-1 Class M-2 Class X-0
Xxxxxx Xxxxxxx & Xx.
Xxxxxxxxxxxx............. $191,038,139.72 $41,586,734.69 $38,387,755.10 $35,188,775.51
Xxxxxxxx & Partners, L.P. $1,523,430.14 $331,632.65 $306,122.45 $280,612.24
Xxxxxxxx Capital Partners,
L.P...................... $1,523,430.14 $331,632.65 $306,122.45 $280,612.24
Total:................... $194,085,000 $42,250,000 $39,000,000 $35,750,000
EXHIBIT A
OPINION OF XXXXX XXXXXXXXXX LLP, COUNSEL FOR THE COMPANY
