EXECUTION COPY
XXXXXX XXXXXXX ABS CAPITAL I INC.
XXXXXX XXXXXXX ABS CAPITAL TRUST I 2000-1
MORTGAGE LOAN ASSET-BACKED NOTES, SERIES 2000-1
UNDERWRITING AGREEMENT
July 14, 2000
Xxxxxx Xxxxxxx & Co. Incorporated,
as Representative for the Underwriters
listed on Schedule III hereto,
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxxx Xxxxxxx ABS Capital I Inc., a Delaware corporation (the
"Company"), as depositor (the "Depositor") to Xxxxxx Xxxxxxx ABS Capital I Trust
2000-1, a Delaware business trust (the "REMIC Trust"), formed pursuant to a
trust agreement dated as of July 1, 2000 between the Depositor and Wilmington
Trust Company, proposes to sell to you (the "Underwriters"), the Mortgage Loan
Asset-Backed Notes, Series 2000-1 issued by the REMIC Trust of the series and
classes, and in the respective original principal or notional, as the case may
be, amounts or percentage interests, set forth in Schedule I hereto (the
"Offered Notes"), which are non-recourse obligations of the REMIC Trust which
are solely secured by certain conventional, one-to four family, fixed - and
adjustable-rate, sub-prime residential mortgage loans secured by first liens on
residential real properties to be acquired by the Company (the "Mortgage Loans")
and related property. The Mortgage Loans will be acquired by the Company on the
Closing Date (as defined herein) from an affiliate, Xxxxxx Xxxxxxx Xxxx Xxxxxx
Mortgage Capital Inc., a New York corporation, (the "Seller") pursuant to an
Assignment and Xxxx of Sale dated as of July 1, 2000 (the "Assignment"), which
had acquired the Mortgage Loans from the originator, Long Beach Mortgage Company
(the "Originator"), a Delaware corporation specified in the Prospectus
Supplement (as defined herein) pursuant to a purchase agreement (the "Mortgage
Loan Purchase Agreement") as of April 1, 2000. The Mortgage Loans will be of the
type and will have the characteristics described in the Prospectus Supplement,
subject to the variances, ranges, minimums and maximums set forth in the
Prospectus Supplement, and will have the aggregate principal balance set forth
in the Prospectus Supplement, subject to an upward or downward variance in
principal balance, not to exceed the percentage set forth in the Prospectus
Supplement, the precise aggregate principal balance within such range to be
determined by the Company in its sole discretion.
The Offered Notes, together with the other classes of notes of the
series specified on Schedule II hereto (the "Private Notes") are to be issued
under an Indenture (the "Indenture"), dated as of the Cut-off Date (as defined
in the Prospectus Supplement), between the REMIC Trust and Bankers Trust company
of California, N.A. (the "Indenture Trustee"). Other classes of privately placed
notes (the "NIM Notes") will be issued under a second indenture, dated as of the
Cut-off Date, between Xxxxxx Xxxxxxx ABS Capital I Trust 2000-1N (the "NIM
Trust") and the Indenture Trustee (the "NIM Indenture"). The REMIC Trust was
formed pursuant to a trust agreement, dated as of July 1, 2000, (the "Trust
Agreement") between the Depositor and Wilmington Trust Company as owner trustee
(the "Owner Trustee"). The NIM Trust was formed pursuant to a trust agreement,
dated as of July 1, 2000, (the "NIM Trust Agreement") between the Depositor and
Wilmington Trust Company as owner trustee (the "Owner Trustee"). Collectively
the Offered Notes, the Private Notes and the NIM Notes are referred to as the
"Notes". The Mortgage Loans will be serviced and the Notes administered pursuant
to a sale and servicing agreement, dated as of the Cut-off Date, among the
Seller, the Depositor, the REMIC Trust, the NIM Trust, the Originator, as
originator and master servicer (the "Master Servicer"), the Owner Trustee and
the Indenture Trustee (the "Sale and Servicing
Agreement"). The Offered Notes of each class will be issued in the minimum
denominations and will have the terms set forth in the Prospectus Supplement.
Capitalized terms used but not otherwise defined herein shall have the
respective meanings ascribed thereto in the Indenture.
The Company, as registrant, has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (Commission
File No. 333-64909) including a prospectus, relating to the Offered Notes and
has filed with, or transmitted for filing to, or shall promptly hereafter file
with or transmit for filing to, the Commission a prospectus supplement (the
"Prospectus Supplement") specifically relating to the Offered Notes pursuant to
Rule 424 under the Securities Act of 1933, as amended (the "Act"). The term
"Registration Statement" means the registration statement, including the
exhibits thereto, as amended to the date of this Agreement. The term "Basic
Prospectus" means the prospectus included in the Registration Statement. The
term "Prospectus" means the Basic Prospectus together with the Prospectus
Supplement. The term "preliminary prospectus" means a preliminary prospectus
supplement specifically relating to the Offered Notes, together with the Basic
Prospectus. As used herein, the terms "Registration Statement", "preliminary
prospectus" or "Prospectus" shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") on or before the date on which the Registration Statement, as
amended, became effective or the issue date of such preliminary prospectus or
the date on which the Prospectus is filed pursuant to Rule 424 under the Act, as
the case may be; and as used herein, the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to refer to and include the filing
of any document under the Exchange Act after the date on which the Registration
Statement became effective or the issue date of any preliminary prospectus or
the date on which the Prospectus is filed pursuant to Rule 424 under the Act, as
the case may be, deemed to be incorporated therein by reference
1. Representations and Warranties. The Company represents and
warrants to and agrees with each of the Underwriter that:
(i) 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 or, to the
Company's knowledge, threatened by the Commission.
(ii) The Registration Statement and the Prospectus, as of the
date of the Prospectus Supplement, conform, and the Registration
Statement and the Prospectus as revised, amended or supplemented and
filed with the Commission prior to the termination of the offering of
the Offered Notes, as of their respective effective or issue dates,
will conform in all material respects to the requirements of the Act
and the rules and regulations of the Commission thereunder applicable
to such documents as of such respective dates, and the Registration
Statement and the Prospectus as revised, amended or supplemented and
filed with the Commission as of the Closing Date will conform in all
material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder applicable to such documents
as of the Closing Date. The Registration Statement, at the time it
became effective, did not include 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; and the
Prospectus, as of the date of the Prospectus Supplement, and the
Prospectus as revised, amended or supplemented and filed prior to the
Closing Date, as of the Closing Date, will not include any untrue
statement of a material fact and will not omit to state a material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading; provided, however, that the
Company makes no representations, warranties or agreements as to (A)
the information contained in the Prospectus or any revision or
amendment thereof or supplement thereto in reliance upon and in
conformity with information furnished in writing to the Company by any
Underwriter through Xxxxxx Xxxxxxx & Co. Incorporated specifically for
use in connection with the preparation of 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 the Underwriter to the
Company pursuant to Section 4.2.
(iii) At or prior to the Closing Date, the direction by the
Company to the Indenture Trustee to execute, authenticate and deliver
the Offered Notes will have been duly authorized by the Company, and
the Offered Notes, when executed and authenticated in accordance with
the Indenture, and delivered to and
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paid for by the Underwriter in accordance with the terms of this
Agreement, will be duly and validly issued and outstanding and entitled
to the benefits of the Indenture. Each of the Notes of the classes
indicated to be "mortgage related securities" under the heading
"Summary of the Prospectus Supplement--Legal Investment" in the
Prospectus Supplement will, when issued, be a "mortgage related
security" as such term is defined in Section 3(a)(41) of the Exchange
Act.
(iv) This Agreement has been duly authorized, executed and
delivered by the Company. At or prior to the Closing Date, the Trust
Agreement and the Sale and Servicing Agreement will have been duly
authorized, executed and delivered by the Company and will conform in
all material respects to the descriptions thereof contained in the
Prospectus and, assuming the valid execution and delivery thereof by
the other parties thereto, and the Trust Agreement and the Sale and
Servicing Agreement will each constitute a legal, valid and binding
agreement of the Company enforceable in accordance with its terms,
except as the same may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting creditors' rights
generally, by general principles of equity and by the effect of the
exercise by the Indenture Trustee of certain remedial provisions,
including waivers, against the Mortgage Loans.
(v) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware with corporate power and authority to own its properties
and conduct its business as described in the Prospectus and to enter
into and perform its obligations under the Trust Agreement, the Sale
and Servicing Agreement and this Agreement.
(vi) 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 Act,
complied as to form, when so filed, in all material respects with the
Act and the rules and regulations of the Commission thereunder.
(vii) Neither the execution and delivery by the Company of,
nor the performance by the Company of its obligations under, this
Agreement, the Trust Agreement, or the Sale 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, the Trust Agreement,
or the Sale 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 Notes.
(viii) 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.
(ix) At the time of execution and delivery of the Sale and
Servicing Agreement, (1) the Company will own the Mortgage Loans being
transferred to the REMIC Trust pursuant thereto, free and clear of any
lien, mortgage, pledge, charge, encumbrance, adverse claim or other
security interest (collectively, "Liens"), except to the extent
permitted in the Sale and Servicing Agreement or the Indenture, and
will not have assigned to any person other than the REMIC Trust any of
its right, title or interest in the Mortgage Loans, (2) the Company
will have the power and authority to transfer the Mortgage Loans to the
REMIC Trust and to transfer the Offered Notes to you, (3) upon
execution and delivery to the Owner Trustee, and delivery of the Notes
to the Company, the REMIC Trust will own the Mortgage Loans free of
Liens other than Liens permitted by the Sale and Servicing Agreement or
the Indenture or created or granted by you and (4) upon payment and
delivery of the Offered Notes to you, you will acquire ownership of the
Offered Notes, free of Liens other than Liens permitted by the Sale and
Servicing Agreement or the Indenture or created or granted by you.
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(x) Any taxes, fees and other governmental charges in
connection with the execution, delivery and issuance of this Agreement,
the Indenture, the Sale and Servicing Agreement and the Notes have been
or will be paid by the Company at or prior to the Closing Date, except
for fees for recording assignments of the Mortgage Loans to the
Indenture Trustee pursuant to the Indenture or the Sale and Servicing
Agreement that have not yet been completed, which fees will be paid by
or on behalf of the Company in accordance with the Indenture.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell, and each Underwriter agrees, severally and not jointly, to
purchase from the Company, the respective actual or notional, as the case may
be, amounts or percentage interests set forth in Schedule III hereto in the
respective classes of Offered Notes at the respective purchase price for each
such class set forth therein.
3. Delivery and Payment. The Offered Notes shall be delivered at
the office, on the date and at the time specified in, Schedule II attached
hereto, which place, date and time may be changed by agreement between the
Underwriters and the Company (such date and time of delivery of and payment for
such Offered Notes being hereinafter referred to as the "Closing Date").
Delivery of the Offered Notes shall be made to you through DTC, against payment
by you of the purchase prices thereof to or upon the order of the Company by
wire transfer in immediately available funds.
4. Offering by Underwriter.
4.1 It is understood that the Underwriters propose to offer the
Offered Notes for sale as set forth in the Prospectus and that you will not
offer, sell or otherwise distribute the Offered Notes (except for the sale
thereof in exempt transactions) in any state in which the Offered Notes are not
exempt from registration under "blue sky" or state securities laws (except where
the Offered Notes will have been qualified for offering and sale at your
direction under such "blue sky" or state securities laws).
4.2 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 your offering of the Offered Notes, 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 HAS BEEN PREPARED BY [UNDERWRITER] IN
CONNECTION WITH THE ISSUANCE OF THESE NOTES BY XXXXXX
XXXXXXX ABS CAPITAL I TRUST 2000-1 BASED ON INFORMATION
PROVIDED BY LONG BEACH MORTGAGE
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COMPANY WITH RESPECT TO THE EXPECTED CHARACTERISTICS OF
THE POOL OF MORTGAGE LOANS IN WHICH THESE NOTES WILL BE
SECURED BY. THIS INFORMATION IS ALSO BASED ON CERTAIN
ASSUMPTIONS MADE AT YOUR REQUEST AND CERTAIN OTHER
ASSUMPTIONS SET FORTH HEREIN. THE ACTUAL CHARACTERISTICS
AND PERFORMANCE OF THE MORTGAGE LOANS WILL DIFFER FROM
THE ASSUMPTIONS USED IN PREPARING THESE MATERIALS, WHICH
ARE HYPOTHETICAL IN NATURE. CHANGES IN THE ASSUMPTIONS
MAY HAVE A MATERIAL IMPACT ON THE INFORMATION SET FORTH
IN THESE MATERIALS. NO REPRESENTATION IS MADE THAT ANY
PERFORMANCE OR RETURN INDICATED HEREIN WILL BE ACHIEVED.
FOR EXAMPLE, IT IS VERY UNLIKELY THAT A MORTGAGE LOAN
WILL PREPAY AT A CONSTANT RATE OR FOLLOWING A PREDICTABLE
PATTERN. THIS INFORMATION HAS BEEN PROVIDED TO YOU AT
YOUR REQUEST AND MAY NOT BE USED OR OTHERWISE
DISSEMINATED IN CONNECTION WITH THE OFFER AND SALE OF
THESE OR ANY OTHER NOTES, EXCEPT IN CONNECTION WITH THE
INITIAL OFFER OR SALE OF THESE NOTES TO YOU TO THE EXTENT
SET FORTH BELOW. NO REPRESENTATION IS MADE AS TO THE
APPROPRIATENESS, USEFULNESS, ACCURACY OR COMPLETENESS OF
THESE MATERIALS OR THE ASSUMPTIONS ON WHICH THEY ARE
BASED. ADDITIONAL INFORMATION IS AVAILABLE UPON REQUEST.
THESE MATERIALS DO NOT CONSTITUTE AN OFFER TO BUY OR SELL
OR A SOLICITATION OF AN OFFER TO BUY OR SELL ANY NOTES OR
INSTRUMENT OR TO PARTICIPATE IN ANY PARTICULAR TRADING
STRATEGY. ANY SUCH OFFER TO BUY OR SELL ANY NOTES WOULD
BE MADE PURSUANT TO A DEFINITIVE PROSPECTUS PREPARED BY
XXXXXX XXXXXXX ABS CAPITAL I TRUST 2000-1 WHICH WOULD
CONTAIN MATERIAL INFORMATION NOT CONTAINED IN THESE
MATERIALS. SUCH PROSPECTUS WILL CONTAIN ALL MATERIAL
INFORMATION IN RESPECT OF ANY SUCH NOTES OFFERED THEREBY
AND ANY DECISION TO INVEST IN SUCH NOTES SHOULD BE MADE
SOLELY IN RELIANCE UPON SUCH PROSPECTUS. IN THE EVENT OF
ANY SUCH OFFERING, THESE MATERIALS SHALL BE DEEMED
SUPERSEDED, AMENDED AND SUPPLEMENTED IN THEIR ENTIRETY BY
SUCH PROSPECTUS."
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,
Section 4.2(c)(i) 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 Section 5(h), 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 Section 4.2(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. The Underwriter agrees that it will not provide to any investor or
prospective investor in the Offered Notes 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 Section
4.2(e) (other than copies of Computational Materials or ABS Term Sheets
previously submitted to the Company in accordance with this Section 4.2(e) for
filing pursuant to Section 5(h)), unless such Computational Materials or ABS
Term Sheets are preceded or accompanied by the delivery of a Prospectus to such
investor or prospective investor.
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(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. If any
Computational Materials or ABS Term Sheets that are required to be filed were
based on assumptions with respect to the Mortgage Loans that are incorrect, that
differ from the final Pool Information (as defined in the Originator
Indemnification Certificate") in any material respect or on Note structuring
terms that were revised in any material respect prior to the printing of the
Prospectus, the Underwriters shall prepare revised Computational Materials or
ABS Term Sheets, as the case may be, based on the final Pool Information and
structuring assumptions, circulate such revised Computational Materials and ABS
Term Sheets to all recipients of the preliminary versions thereof that indicated
orally to the Underwriter they would purchase all or any portion of the Offered
Notes, and include such revised Computational Materials and ABS Term Sheets
(marked, "as revised") in the materials delivered to the Company pursuant to
Section 4.2(e).
(g) The Company shall not be obligated to file any
Computational Materials or ABS Term Sheets that (i) in the reasonable
determination of the Company and the Underwriters are not required to be filed
pursuant to the No-Action Letters or (ii) have been determined to contain any
material error or omission, provided that, at the request of the Underwriter,
the Company will file Computational Materials or ABS Term Sheets that contain a
material error or omission if clearly marked "superseded by materials dated
________" and accompanied by corrected Computational Materials or ABS Term
Sheets that are marked "material previously dated __________, as corrected". In
the event that at any time when a prospectus relating to the Offered Notes is
required to be delivered under the Act, any Computational Materials or ABS Term
Sheets are determined, in the reasonable judgment of the Company or the
Underwriter, to contain a material error or omission, the Underwriter shall
prepare a corrected version of such Computational Materials or ABS Term Sheets,
shall circulate such corrected version of such Computational Materials and ABS
Term Sheets to all recipients of the prior versions thereof that either
indicated orally to the Underwriter they would purchase all or any portion of
the Offered Notes, or actually purchased all or any portion thereof, and shall
deliver copies of such corrected Computational Materials and ABS Term Sheets
(marked, "as corrected") to the Company for filing with the Commission in a
subsequent Form 8-K submission (subject to the Company's obtaining an
accountant's comfort letter in respect of such corrected Computational Materials
and ABS Term Sheets, which shall be at the expense of the applicable
Underwriters).
(h) Each Underwriter shall deliver to the Company a
certificate, dated as of the date the Underwriter delivers any Computational
Materials and ABS Term Sheets to the Company pursuant to Section 4.2(e), to the
effect that the representations and warranties of such Underwriter contained in
this Section 4.2 are true and correct as of such date. If an Underwriter does
not provide any Computational Materials or ABS Term Sheets to the Company
pursuant to Section 4.2(e), the Underwriter shall be deemed to have represented,
as of the Closing Date, that it did not provide any prospective investors with
any information in written or electronic form in connection with the offering of
the Offered Notes that is required to be filed with the Commission in accordance
with the No-Action Letters, and the Underwriter shall provide the Company with a
certification to that effect on the Closing Date.
4.3 The Underwriter 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
Section 4.2(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 Notes in accordance with the
No-Action Letters, and such Computational Materials and ABS Term Sheets comply
with the requirements of the No-Action Letters; (ii) on the date any such
Computational Materials and ABS Term Sheets with respect to such Notes (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 Section 4.2(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 (taking into account the
assumptions explicitly set forth in the Computational Materials, except to the
extent of any errors therein that are caused by errors in the Pool Information;
(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
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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
Section 4.2(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 Pool
Information.
5. Agreements. The Company agrees with the Underwriter that:
(a) The Company will cause the Prospectus Supplement to be
transmitted to the Commission for filing pursuant to Rule 424 under the Act by
means reasonably calculated to result in filing with the Commission pursuant to
said rule and, if necessary, within 15 days of the Closing Date, will transmit
for filing by means reasonably calculated to result in filing with the
Commission a report on Form 8-K for purposes of filing the Indenture and the
Sale and Servicing Agreement, and will promptly advise each Underwriter when the
Prospectus Supplement has been so filed.
(b) Prior to the termination of the offering of the Offered
Notes, the Company will promptly advise each Underwriter (i) when any amendment
to the Registration Statement has become effective or any revision of or
supplement to the Prospectus has been so filed (unless such amendment, revision
or supplement does not relate to the Notes), (ii) of any request by the
Commission for any amendment of the Registration Statement or the Prospectus or
for any additional information (unless such request for additional information
does not relate to the Notes), (iii) of any written notification received by the
Company of the suspension of qualification of the Offered Notes for sale in any
jurisdiction or the initiation or threatening of any proceeding for such purpose
and (iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or to the
knowledge of the Company, the threatening of any proceeding for that purpose.
The Company will use its best efforts to prevent the issuance of any such stop
order and, if issued, to obtain as soon as possible the withdrawal thereof.
Except as otherwise provided in Section 5(c), the Company will not file prior to
the termination of such offering any amendment to the Registration Statement or
any revision of or supplement to the Prospectus (other than any such amendment,
revision or supplement which does not relate to the Notes) which shall be
disapproved by the Underwriters after reasonable notice and review of such
filing.
(c) time when a prospectus relating to the Offered Notes is
required to be delivered under the Act (i) any event occurs as a result of which
the Prospectus as then amended or supplemented would include 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, or (ii) it shall be necessary to revise, amend or
supplement the Prospectus to comply with the Act or the rules and regulations of
the Commission thereunder, the Company promptly will notify each Underwriter and
will, upon the request of any Underwriter, or may, after consultation with each
Underwriter, prepare and file with the Commission a revision, amendment or
supplement which will correct such statement or omission or effect such
compliance, and furnish without charge to each Underwriter as many copies as
such Underwriter may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such statement
or omission or effect such compliance.
(d) The Company will furnish to the Underwriter and counsel to
each Underwriter, without charge, conformed copies of the Registration Statement
(including exhibits thereto) and, so long as delivery of a prospectus relating
to the Offered Notes is required under the Act, as many copies of the Prospectus
and any revisions or amendments thereof or supplements thereto as may be
reasonably requested.
(e) The Company will endeavor to arrange for the qualification
of the Offered Notes for sale under the laws of such jurisdictions as you may
reasonably designate and will maintain such qualification in effect so long as
required for the initial distribution of the Offered Notes; provided, however,
that the Company shall not be required to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action that would
subject it to general or unlimited service of process in any jurisdiction where
it is now so subject.
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(f) Whether or not the transactions contemplated in the
Indenture or the Sale and Servicing Agreement are consummated or this Agreement
is terminated, the Company shall pay or cause to be paid all expenses incident
to the performance of its obligations under this Agreement, including: (i) the
fees, disbursements and expenses of the Company's counsel in connection with the
registration and delivery of the Offered Notes under the Act and all other fees
or expenses in connection with the preparation and filing of the Registration
Statement, any preliminary prospectus, the Prospectus and amendments and
supplements to any of the foregoing, including all printing costs associated
therewith, and the mailing and delivering of copies thereof to the Underwriters
and dealers, in the quantities hereinabove specified, (ii) all costs and
expenses related to the transfer and delivery of the Offered Notes to the
Underwriters, including any transfer or other taxes payable thereon, (iii) the
cost of printing or producing any "blue sky" memorandum in connection with the
offer and sale of the Offered Notes under state securities laws and all expenses
in connection with the qualification of the Offered Notes for offer and sale
under state securities laws as provided in Section 5(e), including filing fees
and the reasonable fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the "blue sky"
memorandum, (vi) all filing fees and disbursements of counsel for the
Underwriters incurred in connection with any review and qualification of the
offering by the National Association of Securities Dealers, Inc., (v) the cost
of printing the Offered Notes, (vi) the costs and charges of any transfer agent,
registrar or depositary, and (vii) all other costs and expenses incident to the
performance of the obligations of the Company hereunder for which provision is
not otherwise made in this Section. It is understood, however, that except as
provided in Section 7, the Underwriters will pay all of its costs and expenses,
including fees and disbursements of their counsel, stock transfer taxes payable
on resale of any of the Offered Notes by them, and any advertising expenses
connected with any offers they may make.
(g) So long as any Offered Notes are outstanding, upon request
of an Underwriter, the Company will, or will cause the Master Servicer to,
furnish to such Underwriter, as soon as available, a copy of (i) the annual
statement of compliance delivered by the Master Servicer to the Indenture
Trustee under the Sale and Servicing Agreement, (ii) the annual independent
public accountants' servicing report furnished to the Indenture Trustee pursuant
to the Sale and Servicing Agreement, (iii) each report of the Company regarding
the Offered Notes filed with the Commission under the Exchange Act or mailed to
the holders of the Offered Notes and (iv) from time to time, such other
information concerning the Offered Notes which may be furnished by the Company
or the Master Servicer without undue expense and without violation of applicable
law.
(h) The Company shall file the Computational Materials and ABS
Term Sheets (if any) provided to it by the Underwriters under Section 4.2(e)
with the Commission pursuant to a Current Report on Form 8-K by 10:00 a.m. on
the morning the Prospectus is delivered to the Underwriters or, the case of any
Collateral Term Sheet required to be filed prior to such date, by 10 a.m. on the
second business day following the first day on which such Collateral Term Sheet
has been sent to a prospective investor; provided, however, that prior to such
filing of the Computational Materials and ABS Term Sheets (other than any
Collateral Term Sheets that are not based on the Pool Information) by the
Company, the Underwriters must comply with its obligations pursuant to Section
4.2 and the Company must receive a letter from Deloitte & Touche LLP certified
public accountants, satisfactory in form and substance to the Company and its
counsel, to the effect that such accountants have performed certain specified
procedures, all of which have been agreed to by the Company, as a result of
which they determined that all information that is included in the Computational
Materials and ABS Term Sheets (if any) provided by the Underwriters to the
Company for filing on Form 8-K, as provided in Section 4.2 and this Section
5(h), is accurate except as to such matters that are not deemed by the Company
to be material. The foregoing letter shall be at the expense of the
Underwriters. The Company shall file any corrected Computational Materials or
ABS Terms Sheets described in Section 4.2(g) as soon as practicable following
receipt thereof.
6. Conditions to the Obligations of the Underwriters. The
obligation of each Underwriter to purchase the Offered Notes to be purchased by
it shall be subject to the accuracy in all material respects of the
representations and warranties on the part of the Company contained herein as of
the date hereof and as of the Closing Date, to the accuracy of the statements of
the Company made in any officer's certificate pursuant to the provisions hereof,
to the performance in all material respects by the Company of its obligations
hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceedings for that purpose
shall be pending or, to the knowledge of the Company, threatened, and
8
the Prospectus Supplement shall have been filed or transmitted for filing by
means reasonably calculated to result in a filing with the Commission pursuant
to Rule 424 under the Act.
(b) The Company shall have furnished to the Underwriters a
certificate, dated the Closing Date, of the Company, signed by a vice president
of the Company, to the effect that the signer of such certificate has carefully
examined the Registration Statement, the Prospectus and this Agreement and that:
(i) The representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date,
and the Company has complied with all agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the
Closing Date;
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceedings for that
purpose have been instituted and are pending or, to his knowledge, have
been threatened as of the Closing Date; and
(iii) Nothing has come to the attention of such person that
would lead him to believe that the Prospectus (other than any
Computational Materials or ABS Term Sheets incorporated therein by
reference) contains any untrue statement of a material fact or omits to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
The officer signing and delivering such certificate may rely upon the best of
his knowledge as to proceedings threatened.
(c) The Company shall have furnished or caused to have been
furnished to the Underwriters a certificate, dated the Closing Date, of the
Originator, signed by a vice president or an assistant vice president of the
Originator, to the effect that the signer of such certificate has carefully
examined the Prospectus and nothing has come to the attention of such person
that would lead him to believe that the Prospectus contains any untrue statement
of a material fact with respect to the Originator or the Mortgage Loans or omits
to state any material fact with respect to the Originator or the Mortgage Loans
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading (the "Originator Indemnification
Certificate").
(d) The Company shall have furnished to you an opinion, dated
the Closing Date, Xxxxx Xxxxxxxxxx LLP, counsel to the Company, substantially to
the effect that:
(i) The Registration Statement and any amendments thereto have
become effective under the Act; to the best knowledge of such counsel,
no stop order suspending the effectiveness of the Registration
Statement has been issued and not withdrawn, no proceedings for that
purpose have been instituted or threatened and not terminated; and the
Registration Statement, the Prospectus and each amendment or supplement
thereto, as of their respective effective or issue dates (other than
the financial and statistical information contained therein as to which
such counsel need express no opinion), complied as to form in all
material respects with the applicable requirements of the Act and the
rules and regulations of the Commission thereunder;
(ii) To the best knowledge of such counsel, there are no
material contracts, indentures or other documents of a character
required to be described or referred to in the Registration Statement
or the Prospectus or to be filed as exhibits to the Registration
Statement other than those described or referred to therein or filed or
incorporated by reference as exhibits thereto;
(iii) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the State
of Delaware and is duly qualified to do business in, and is in good
standing as a foreign corporation under the laws of, the State of New
York;
(iv) This Agreement has been duly authorized, executed and
delivered by the Company;
9
(v) Each of the Trust Agreement and the Sale and Servicing
Agreement has been duly authorized, executed and delivered by the
Company and, assuming the due authorization execution and delivery by
other parties thereto, constitutes a valid, legal and binding agreement
of the Company, is enforceable against the Company in accordance with
its terms, subject as to enforceability to bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors'
rights generally, to general principles of equity regardless of whether
enforcement is sought in a proceeding in equity or at law;
(vi) The Offered Notes have been duly authorized and, assuming
authentication and delivery in the manner contemplated in the
Indenture, and upon delivery by the Company of the Offered Notes to be
purchased by the Underwriters and payment by the Underwriters of the
purchase price therefore in the manner contemplated by this Agreement,
the Offered Notes will be (A) validly issued and outstanding and
entitled to the benefits of the Indenture and the Sale and Servicing
Agreement and (B) free and clear of any lien, pledge, encumbrance or
other security interest other than one permitted by the Indenture and
the Sale and Servicing Agreement or created or granted by any
Underwriter;
(vii) To the best knowledge of such counsel, no consent,
approval, authorization or order of any New York, Delaware or federal
governmental agency or body or any New York, Delaware or federal court
is required for the consummation by the Company of the transactions
contemplated by the terms of this Agreement or the Indenture or the
Sale and Servicing Agreement, except such as may be required under the
"blue sky" or state securities laws of any jurisdiction in connection
with the offering, sale or acquisition of the Offered Notes, any
recordations of the assignment of the Mortgage Loans to the Indenture
Trustee (to the extent such recordations are required pursuant to the
Sale and Servicing Agreement) that have not yet been completed and such
other approvals as have been obtained;
(viii) The sale of the Offered Notes to be purchased by the
Underwriters pursuant to this Agreement and the consummation of any of
the transactions contemplated by the terms of the Indenture, the Sale
and Servicing Agreement or this Agreement do not conflict with or
result in a breach or violation of any material term or provision of,
or constitute a default under, the certificate of incorporation of the
Company, or to the best knowledge of such counsel, any indenture or
other agreement or instrument to which the Company is a party or by
which it is bound, or any New York, Delaware or federal statute or
regulation applicable to the Company or an order of any New York,
Delaware or federal court, regulatory body, administrative agency or
governmental body having jurisdiction over the Company;
(ix) The Offered Notes and the Indenture and the Sale and
Servicing Agreement conform to the descriptions thereof contained in
the Prospectus;
(x) The statements in the Prospectus and the Prospectus
Supplement, as the case may be, under the headings "Federal Income Tax
Consequences", "Material Federal Income Tax Consequences", and "ERISA
Considerations," to the extent that they constitute matters of New York
or federal law or legal conclusions with respect thereto, have been
reviewed by such counsel and are correct in all material respects;
(xi) The Offered Notes indicated under the heading "Summary of
the Prospectus Supplement--Legal Investment" in the Prospectus
Supplement to be "mortgage related securities" will be mortgage related
securities, as defined in Section 3(a)(41) of the Exchange Act, so long
as such Offered Notes are rated in one of the two highest rating
categories by at least one nationally recognized statistical rating
organization;
(xii) The Indenture has been qualified under the Trust
Indenture Act of 1939, as amended, and the Trust is not required to be
registered under the Investment Company Act of 1940, as amended; and
(xiii) The REMIC Trust as described in the Prospectus
Supplement and the Indenture and the Sale and Servicing Agreement will
qualify as a "real estate mortgage investment conduit" ("REMIC") within
the meaning of Section 860D of the Internal Revenue Code of 1986, as
amended (the "Code"), assuming: (i) an election is made to treat the
REMIC Trust as a REMIC, (ii) compliance with the
10
Indenture, the Trust Agreement and the Sale and Servicing Agreement and
(iii) compliance with changes in the law, including any amendments to
the Code or applicable Treasury regulations thereunder.
Such counsel shall also state that nothing has come to its attention
that would lead such counsel to believe that the Registration Statement, at the
time it became effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus, as of the
date of the Prospectus Supplement, and on the Closing Date, contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; it being
understood that such counsel need express no view as to (i) financial and
statistical information contained therein or (ii) any description in the
Prospectus of any third party providing credit enhancement to the Notes.
Such opinion may express its reliance as to factual matters on the
representations and warranties made by, and on certificates or other documents
furnished by officers of, the parties to this Agreement, the Indenture, the
Trust Agreement and the Sale and Servicing Agreement. Such opinion may assume
the due authorization, execution and delivery of the instruments and documents
referred to therein by the parties thereto other than the Company or its
affiliates. Such opinion may be qualified as an opinion only on the corporate
laws of the State of Delaware, the laws of the State of New York and the federal
law of the United States. To the extent that such counsel relies upon the
opinion of other counsel in rendering any portion of its opinion, the opinion of
such other counsel shall be attached to and delivered with the opinion of such
counsel that is delivered to the Underwriter.
(e) Each party providing credit enhancement to the Notes shall
have furnished to the Underwriters an opinion, dated the Closing Date, of its
counsel, with respect to the Registration Statement and the Prospectus, and such
other related matters, in the form previously agreed to by such provider and the
Underwriters.
(f) The Underwriters shall have received from their counsel
such opinion or opinions, dated the Closing Date, with respect to the issuance
and sale of the Offered Notes, the Registration Statement and the Prospectus,
and such other related matters as you may reasonably require.
(g) You shall have received from Deloitte & Touche LLP
certified public accountants, (a) a letter dated the date hereof and
satisfactory in form and substance to you and your counsel, to the effect that
they have performed certain specified procedures, all of which have been agreed
to by you, as a result of which they determined that certain information of an
accounting, financial or statistical nature set forth in the Prospectus
Supplement under the captions "The Mortgage Pool," "Description of the Notes "
and "Prepayment and Yield Considerations" agrees with the records of the Company
and the Originator excluding any questions of legal interpretation and (b) the
letter prepared pursuant to Section 5(h).
(h) The Offered Notes shall be rated not lower than the
required ratings set forth under the heading "Ratings" in the Prospectus
Supplement, such ratings shall not have been rescinded and no public
announcement shall have been made that any such required rating of the Offered
Notes has been placed under review (otherwise than for possible upgrading).
(i) The Underwriters shall have received copies of any
opinions of counsel to the Company supplied to the rating organizations relating
to certain matters with respect to the Notes. Any such opinions shall be dated
the Closing Date and addressed to the Underwriters or accompanied by reliance
letters addressed to the Underwriters.
(j) All Classes of Notes being publicly offered by the
Underwriter shall have been issued and paid for pursuant to the terms of this
Agreement.
(k) The Indenture Trustee shall have furnished to the
Underwriters an opinion dated the Closing Date, of counsel to the Indenture
Trustee (who may be an employee of the Indenture Trustee), substantially to the
effect that:
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(i) The Indenture Trustee has full corporate power and
authority to execute and deliver the Indenture and the Sale and
Servicing Agreement and to perform its obligations thereunder and to
execute, countersign and deliver the Notes.
(ii) The Indenture and the Sale and Servicing Agreement has
been duly authorized, executed and delivered by the Indenture Trustee.
(iii) The Indenture and the Sale and Servicing Agreement is a
legal, valid and binding obligation of the Indenture Trustee,
enforceable against the Indenture Trustee in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization,
moratorium, receivership, conservatorship and similar laws affecting
the rights of creditors generally, and subject, as to enforceability,
to general principles of equity, regardless of whether such enforcement
is considered in a proceeding at law or equity.
Such opinion may express its reliance as to factual matters on the
representations and warranties made by, and on certificates or other documents
furnished by officers of, the parties to the Indenture and the Sale and
Servicing Agreement. Such opinion may assume the due authorization, execution
and delivery of the instruments and documents referred to therein by the parties
thereto other than the Indenture Trustee or its affiliates. Such opinion may be
qualified as an opinion only on the laws of the State of New York and the
federal law of the United States. To the extent that such counsel relies upon
the opinion of other counsel in rendering any portion of its opinion, the
opinion of such other counsel shall be attached to and delivered with the
opinion of such counsel that is delivered to the Underwriters.
(l) The Seller shall have sold the Mortgage Loans to the
Company pursuant to the Assignment.
(m) The Company shall have furnished to the Underwriters such
further information, certificates and documents as the Underwriters may
reasonably have requested, and all proceedings in connection with the
transactions contemplated by this Agreement and all documents incident hereto
shall be in all material respects reasonably satisfactory in form and substance
to the Underwriters and their counsel.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
this Agreement and all obligations of an Underwriter hereunder may be canceled
at, or at any time prior to, the Closing Date by such Underwriter. Notice of
such cancellation shall be given to the Company in writing, or by telephone or
telegraph confirmed in writing.
7. Indemnification and Contribution. The Company agrees to
indemnify and hold harmless each of the Underwriters and each person, if any,
who controls such Underwriter within the meaning of either Section 15 of the Act
or Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities, joint or several, to which they or any of them may
become subject under the Act, the Exchange 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) were 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 mentioned in Section 5(c) and as amended or supplemented
if the Company shall have furnished any amendments or supplements thereto), or
were 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 were
caused by any such untrue statement or omission or alleged untrue statement or
omission made therein based upon and in conformity with (i) the information
furnished in writing to the Company by any Underwriter through Xxxxxx Xxxxxxx &
Co. Incorporated 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 Section 4.2. Such indemnity with respect
to any Corrected Statement (as defined below) in such Prospectus (or supplement
thereto) shall not inure to the benefit of the Underwriters (or any person
controlling any of the Underwriters) from whom the person asserting any loss,
claim, damage or liability purchased the Offered Notes that are the subject
thereof if such person did not receive a copy of the supplement to such
Prospectus at or prior to the confirmation of the sale of such Notes and the
untrue statement or omission of a material fact contained in such Prospectus (or
supplement thereto) was corrected (a
12
"Corrected Statement") in such other supplement and such supplement was
furnished by the Company to the Underwriters prior to the delivery of such
confirmation.
The Underwriter agree, severally and not jointly, 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 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.
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 Xxxxxx Xxxxxxx & Co. Incorporated in the case of
parties indemnified pursuant to the first paragraph of this Section 7 and by the
Company in the case of parties indemnified pursuant to the second paragraph of
this Section 7. 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 claim that are the subject matter of such
proceeding.
To the extent the indemnification provided for in this Section 7 is
unavailable to an indemnified party under the first or second paragraph of this
Section 7 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 Notes 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 each 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 each of the Underwriters on the other, in
connection with the offering of the Offered Notes shall be deemed to be in the
same respective proportions that the total net proceeds from the offering of the
13
Offered Notes (before deducting expenses) received by the Company and the total
underwriting discounts and commissions received by each of the Underwriters in
respect thereof respectively, bear to the aggregate public offering price of the
Offered Notes. The relative fault of the Company on the one hand, and each 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. Each Underwriter's obligation to contribute pursuant to
this Section 7 is several in proportion to the respective principal amounts of
Offered Notes it has purchased hereunder, and not joint.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which 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 Section 7, the Underwriter shall not be required to
contribute any amount in excess of the amount by which the total underwriting
discounts and commissions received by such Underwriter in connection with the
Offered Notes underwritten and distributed to the public by the Underwriter
exceeds the amount of any damages that the Underwriter has otherwise been
required to pay by reason of any such untrue or alleged untrue statement or
omission or alleged omission. No person guilty or fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 7 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
The indemnity and contribution agreements contained in this Section 7
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 any of 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 Notes.
8. Termination. This Agreement shall be subject to termination in
Xxxxxx Xxxxxxx & Co. Incorporated's absolute discretion, by notice given to the
Company, if (a) after the execution and delivery of this Agreement and prior to
the Closing Date (i) trading generally shall have been suspended or materially
limited on or by, as the case may be, any of the New York Stock Exchange, the
American Stock Exchange, the National Association of Securities Dealers, Inc.,
the Chicago Board of Operations 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) above, such event singly or together
with any other such event, makes it, in the judgment of the Underwriters,
impracticable to market the Offered Notes on the terms and in the manner
contemplated in the Prospectus.
9. Default by an Underwriter. If any one or more of the
Underwriters shall fail to purchase and pay for any of the Offered Notes agreed
to be purchased by such Underwriter or Underwriters hereunder and such failure
to purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the
aggregate principal amount of all the Offered Notes of the various Classes set
forth opposite their names in the Prospectus Supplement bears to the aggregate
principal amount of all of the Offered Notes of the various Classes set forth
opposite the name of all the remaining Underwriters) the Offered Notes that the
defaulting Underwriter or Underwriters agreed but failed to purchase; provided,
however, that in the event that the aggregate principal amount of Offered Notes
which the defaulting Underwriter or Underwriters agreed but failed to purchase
shall exceed 10% of the aggregate principal amount of all of the Offered
Certificates set forth in the Prospectus Supplement, the
14
remaining Underwriters shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Offered Notes, and if such
nondefaulting Underwriters do not purchase all the Offered Notes, this Agreement
will terminate without liability to any nondefaulting Underwriter or the
Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
seven days, as the nondefaulting Underwriters shall determine in order that
required changes in the Registration Statement and the Prospectus or in any
other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Company and to any nondefaulting Underwriter for damages occasioned by its
defaulting hereunder.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of the failure or refusal on the part of the Company to comply
with the terms or 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 shall reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering of the Offered Notes.
10. Representations and Indemnities to Survive. The respective
indemnity and contribution agreements and the representations, warranties and
other statements of the Company, its officers and the Underwriters set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any termination of this Agreement, any investigation made by or on
behalf of any Underwriter or the Company or any of the officers, directors or
controlling persons referred to in Section 7 and delivery of and payment for the
Offered Notes.
11. Successors. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors and the
officers, directors and controlling persons referred to in Section 7, and no
other person will have any right or obligation hereunder.
12. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
13. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York, without regard
to the conflicts of law principles thereof.
14. Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
15. Notices. All communications hereunder shall be in writing and
effective only on receipt and, if sent to the Underwriter, shall be delivered to
the address specified on the signature page hereof; or if sent to the Company,
shall be delivered to 1221 Avenue of the Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxxx Xxxxxxx with a copy to Xxxxxxx Xxxxxx, counsel.
16. Miscellaneous. Time shall be of the essence of this Agreement.
This Agreement supersedes all prior or contemporaneous agreements and
understandings relating to the subject matter hereof, other than the Originator
Indemnification Certificate. Neither this Agreement nor any term hereof may be
changed, waived, discharged or terminated except by a writing signed by the
party against whom enforcement of such change, waiver, discharge or termination
is sought.
15
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the undersigned a counterpart hereof,
whereupon this Agreement and your acceptance shall represent a binding agreement
by and among the Company and the Underwriter on July 14, 2000 relating to the
Mortgage Loan Asset-Backed Notes Series 2000-1, Class A issued by the Mortgage
Xxxxxxx ABS Capital I Trust 2000-1.
Very truly yours,
XXXXXX XXXXXXX ABS CAPITAL I INC.
By: /S/
----------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
The foregoing Agreement is hereby confirmed and accepted.
Accepted, July 14, 2000
XXXXXX XXXXXXX & CO. INCORPORATED
as Representative of the several Underwriters
By: /S/
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
SCHEDULE I
Xxxxxx Xxxxxxx ABS Capital Trust I 2000-1 Mortgage Loan Asset-Backed Notes,
Series 2000-1
---------------------------------------------------------------------------
$284,485,000 Class A Notes
SCHEDULE II
Xxxxxx Xxxxxxx ABS Capital Trust I 2000-1 Mortgage Loan Asset-Backed Notes,
Series 2000-1
---------------------------------------------------------------------------
$25,207,000 Class M-1 Notes
22,507,000 Class M-2 Notes
18,906,000 Class B-2 Notes
SCHEDULE III
UNDERWRITERS
Purchase Price
Underwriter Notes Underwritten Percentage of Par
----------- ------------------ -----------------
Xxxxxx Xxxxxxx & Co. Incorporated $284,483,000 Class A Notes
CIBC Worldmarkets plc $1,000 Class A Notes
Unibank a/s $1,000 Class A Notes
