EXHIBIT 1.2
[Execution Copy]
INDEMNIFICATION
AND
CONTRIBUTION AGREEMENT
THIS INDEMNIFICATION AND CONTRIBUTION AGREEMENT dated January 23, 2004
(the "Agreement") among Xxxxxx Xxxxxxx ABS Capital I Inc., a Delaware
corporation (the "Depositor"), Xxxxxx Xxxxxxx & Co. Incorporated, a Delaware
corporation, as representative (the "Representative"), Xxxxxx Xxxxxxx Mortgage
Capital Inc., a Delaware corporation (the "Seller"), and Bank of America, N.A.,
a national banking association ("BofA").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, BofA and the Depositor are parties to the Bank of America
Servicing Agreement (as defined herein);
WHEREAS, the Representative, on behalf of itself and the other
underwriters named in the Underwriting Agreement dated January 23, 2004 between
the Depositor and the Representative (the "Underwriting Agreement"), is
agreeing, subject to the terms and conditions therein, that the Underwriters
purchase on the Closing Date described therein the Offered Certificates (the
"Offered Certificates") as described therein;
WHEREAS, BofA stands to receive substantial financial benefits in its
capacity as servicer under the Bank of America Servicing Agreement;
WHEREAS, the Depositor and the Seller stand to receive substantial
benefits from BofA performing in its capacity as servicer under the Bank of
America Servicing Agreement;
WHEREAS, each of the Depositor, the Seller, the Underwriters and BofA
wishes to provide for indemnification and contribution on the terms and
conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the foregoing and of other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
1.1 Certain Defined Terms.
---------------------
The following terms shall have the meanings set forth below, unless the
context clearly indicates otherwise:
1933 Act: The Securities Act of 1933, as amended.
Agreement: This Indemnification and Contribution Agreement, as the same
may be amended in accordance with the terms hereof.
Bank of America Servicing Agreement: The Bank of America Servicing
Agreement, dated as of January 1, 2004, among the Depositor, BofA and Deutsche
Bank National Trust Company, as trustee.
BofA Information: All information in the Prospectus Supplement
contained under the headings "The Servicers--Bank of America, N.A." and "Bank of
America Underwriting Guidelines".
Exchange Act: The Securities Exchange Act of 1934, as amended.
Offered Certificates: Xxxxxx Xxxxxxx ABS Capital I Inc., Series
2004-SD1, Mortgage Pass-Through Certificates, Class A, Class M-1, Class M-2 and
Class B issued pursuant to the Pooling Agreement.
Person: Any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
Pooling Agreement: The Pooling Agreement, dated as of January 1, 2004,
among the Depositor, the Seller and Deutsche Bank National Trust Company, as
custodian and trustee.
Prospectus Supplement: The prospectus supplement dated January 23,
2004, relating to the public offering of the Offered Certificates.
1.2 Other Terms.
-----------
Capitalized terms used but not defined herein shall have the meanings
assigned to such terms in the Bank of America Servicing Agreement.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES
Each party hereto represents that:
(a) it has all requisite power and authority to execute, deliver
and perform its obligations under this Agreement;
(b) this Agreement has been duly authorized, executed and
delivered by such party; and
(c) assuming the due authorization, execution and delivery by each
other party hereto, this Agreement constitutes the legal, valid and binding
obligation of such party.
2
ARTICLE III.
INDEMNIFICATION
3.1 Indemnification.
---------------
(a) BofA shall indemnify and hold harmless the Depositor, the
Seller and each Underwriter and their respective directors, officers and each
Person, if any, that controls the Depositor, the Seller or any Underwriter,
within the meaning of either the 1933 Act or the Exchange Act, against any and
all losses, claims, damages or liabilities to which the Depositor, the Seller
and each Underwriter or any such director, officer or controlling Person may
become subject, under the 1933 Act, the Exchange Act or otherwise, to the extent
that such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in the Prospectus Supplement or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in which
they were made, not misleading, to the extent that such untrue statement or
alleged untrue statement or omission or alleged omission relates to information
set forth in the BofA Information in the Prospectus Supplement and BofA shall in
each case reimburse the Depositor, the Seller and each Underwriter, and each
such director, officer or controlling Person for any legal or other expenses
reasonably incurred by the Depositor, the Seller and each Underwriter and each
such director, officer or controlling Person, in connection with investigating
or defending any such loss, claim, damage, liability or action. BofA's liability
under this Section 3.1 shall be in addition to any other liability that BofA may
otherwise have.
(b) The Seller shall indemnify and hold harmless BofA against any
and all losses, claims, damages or liabilities to which BofA may become subject,
under the 1933 Act, the Exchange Act or otherwise, to the extent that such
losses, claims, damages or liabilities (or actions in respect thereof) (i) arise
out of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Prospectus Supplement or any amendment or
supplement thereto, or (ii) arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading, in each case, to the extent that such
untrue statement or alleged untrue statement or omission or alleged omission
relates to information other than that set forth in the BofA Information in the
Prospectus Supplement, and the Seller shall in each case reimburse BofA for any
legal or other expenses reasonably incurred by BofA, in connection with
investigating or defending any such loss, claim, damage, liability or action.
The Seller's liability under this Section 3.1 shall be in addition to any other
liability that the Seller may otherwise have.
(c) If the indemnification provided for in this Section 3.1 shall
for any reason be unavailable to an indemnified party under this Section 3.1,
then the party which would otherwise be obligated to indemnify with respect
thereto, on the one hand, and the parties which would otherwise be entitled to
be indemnified, on the other, shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated herein and
incurred by the parties hereto in such proportions that are appropriate to
reflect the relative benefit to the
3
Depositor, the Seller, each Underwriter and BofA from the issuance and sale of
the Offered Certificates or, if such allocation is not permitted by a court of
competent jurisdiction, then on a basis appropriate to also recognize the
relative fault of the Depositor, the Seller, each Underwriter and BofA in
connection with the applicable misstatements or omissions as well as any other
relevant equitable considerations. Notwithstanding the foregoing, no Person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the 0000 Xxx) shall be entitled to contribution from any Person that was not
guilty of such fraudulent misrepresentation. For purposes of this Section 3.1,
each director of a party to this Agreement and each Person, if any, that
controls a party to this Agreement within the meaning of Section 15 of the 1933
Act shall have the same rights to contribution as such party.
3.2 Notification; Procedural Matters.
--------------------------------
Promptly after receipt by an indemnified party under Section 3.1 hereof
of notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party (or if a
claim for contribution is to be made against another party) under Section 3.1
hereof, notify the indemnifying party (or other contributing party) in writing
of the commencement thereof; but the omission so to notify the indemnifying
party (or other contributing party) shall not relieve it from any liability it
may have to any indemnified party (or to the party requesting contribution)
otherwise than under Section 3.1 hereof. In case any such action is brought
against any indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that, by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such indemnified party,
the indemnifying party elects to assume the defense thereof, it may participate
with counsel reasonably satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party or parties shall
reasonably have concluded that there may be legal defenses available to it or
them and/or other indemnified parties that are different from or additional to
those available to the indemnifying party , the indemnified party or parties
shall have the right to select separate counsel to assert such legal defenses
and to otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying party
to such indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of such counsel, the indemnifying
party shall not be liable to such indemnified party under this paragraph for any
legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof, unless (i) the indemnified party shall have
employed separate counsel (plus any local counsel) in connection with the
assertion of legal defenses in accordance with the proviso to the immediately
preceding sentence, (ii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of the action or
(iii) the indemnifying party shall have authorized the employment of counsel for
the indemnified party at the expense of the indemnifying party. No party shall
be liable for contribution with respect to any action or claim settled without
its consent, which shall not be unreasonably withheld. In no event shall the
indemnifying party be liable for the fees and expenses of more than one counsel
(in addition to any local counsel) separate from its own counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances.
4
ARTICLE IV.
GENERAL
4.1 Survival.
--------
This Agreement and the obligations of the parties hereunder shall
survive the purchase and sale of the Offered Certificates.
4.2 Successors.
----------
This Agreement shall 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 Article III hereof and their respective
successors and assigns, and no other Person shall have any right or obligation
hereunder.
4.3 Applicable Law.
--------------
This Agreement and all matters arising with respect to it shall be
governed by and construed in accordance with the laws of the State of New York
(including, without limitation, sections 5-1401 and 5-1402 of the General
Obligations Law of the State of New York) without otherwise giving effect to
conflict of laws principles thereof.
4.4 Miscellaneous.
-------------
Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated except by a writing signed by the party against which
enforcement of such change, waiver, discharge or termination is sought. This
Agreement may be signed in any number of counterparts, each of which shall be
deemed an original, which taken together shall constitute one and the same
instrument.
4.5 Notices.
-------
All communications hereunder shall be in writing and shall be deemed to
have been duly given when delivered to (a) in the case of the Depositor, Xxxxxx
Xxxxxxx ABS Capital I Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxxxx Xxxxx, (b) in the case of the Underwriters, Xxxxxx Xxxxxxx & Co.
Incorporated, as representative, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxxxx Xxxxx, (c) in the case of the Seller, Xxxxxx Xxxxxxx
Mortgage Capital Inc., 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxx, Esq., and (d) in the case of BofA, Bank of America,
N.A., Bank of America, N.A., 000 Xxxxxxxxxx Xxxxxxx, Xxxxxxxxx, Xxx Xxxx
00000-0000, Attention: Servicing Manager.
[Remainder of Page Intentionally Left Blank]
5
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers as of the date first above written.
XXXXXX XXXXXXX ABS CAPITAL I INC.,
as Depositor
By:
--------------------------------------
Name:
Title:
XXXXXX XXXXXXX & CO. INCORPORATED,
as Representative
By:
--------------------------------------
Name:
Title:
XXXXXX XXXXXXX MORTGAGE CAPITAL INC.,
as Seller
By:
--------------------------------------
Name:
Title:
BANK OF AMERICA, N.A.,
as Servicer
By:
--------------------------------------
Name:
Title:
[Signature Page to the Bank of America Indemnification Agreement]
