XXXXXX XXXXXXX ABS CAPITAL I INC.
MORTGAGE PASS-THROUGH CERTIFICATES
Series 2003-HE1
UNDERWRITING AGREEMENT
New York, New York
March 24, 2003
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 ABS Capital I Inc., a Delaware corporation (the "Company"),
proposes to sell to you, as representative (the "Representative") of yourself,
Banc of America Securities LLC ("Banc of America") and Wachovia Securities, Inc.
("Wachovia") (together, the "Underwriters"), CDC Mortgage Capital Trust
2003-HE1, Mortgage Pass-Through Certificates, Series 2003-HE1 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 March 1, 2003 (the
"Pooling and Servicing Agreement") among Xxxxxx Xxxxxxx ABS Capital I, Inc., as
depositor (the "Depositor"), Fairbanks Capital Corp., as servicer ("Fairbanks"),
Deutsche Bank National Trust Company, as trustee (the "Trustee") and CDC
Mortgage Capital Inc., as unaffiliated seller (the "Unaffiliated Seller"). In
addition to the Offered Certificates, the Depositor will authorize for issuance
the Mortgage Pass-Through Certificates, Series 2003-HE1, 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 "Prospectus Supplement"). The term
"preliminary prospectus" means a preliminary prospectus supplement specifically
relating to the Offered Certificates together with the Base Prospectus. Any
reference in this underwriting agreement (the "Agreement") to the Registration
Statement, any preliminary prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein pursuant to Item
12 of Form S-3 under the Securities Act, including Computational Materials, ABS
Term Sheets and Collateral Term Sheets (each as defined herein), as of the
effective date of the Registration Statement, the date of such preliminary
prospectus or the Prospectus or the Closing Date, as the case may be. Terms not
otherwise defined in this Agreement are used herein as defined in the Pooling
and Servicing Agreement.
I.
The Company represents and warrants to and agrees with the Underwriters
that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by the
Commission.
(b) Each part of the Registration Statement, when such part became
effective, did not contain, and each such part, as amended or supplemented,
if applicable, will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, (ii) the Registration Statement
and the Prospectus comply, and, as amended or supplemented, if applicable,
will comply in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder and (iii) the
Prospectus does not contain and, as amended or supplemented, if applicable,
will not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that the
representations and warranties set forth in this paragraph I(b) do not
apply to the Excluded Information (as defined in paragraph VII hereof).
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware, has
the corporate power and authority to own its property and to conduct its
business as described in the Prospectus and to enter into and perform its
obligations under this Agreement and the Pooling and Servicing Agreement.
(d) This Agreement has been duly authorized, executed and delivered by the
Company.
(e) The Pooling and Servicing Agreement has been duly authorized, executed
and delivered by the Company and is a valid and binding agreement of the
Company, enforceable in accordance with its terms except as the
enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and to general principles of
equity regardless of whether enforcement is sought in a proceeding in
equity or at law.
(f) The direction by the Company to the Trustee to execute, authenticate
and deliver the Offered Certificates has been duly authorized by the
Company, and the 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.
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(g) Neither the execution and delivery by the Company of, nor the
performance by the Company of its obligations under, this Agreement or the
Pooling and Servicing Agreement, will contravene any provision of
applicable law or the certificate of incorporation or by-laws of the
Company or any agreement or other instrument binding upon the Company that
is material to the Company or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or
any subsidiary, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement and the
Pooling and Servicing Agreement, except such as may be required by the
securities or Blue Sky laws of the various states in connection with the
offer and sale of the Offered Certificates.
(h) There has not occurred any material adverse change, or any development
involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of the
Company and its subsidiaries, taken as a whole, from that set forth in the
Prospectus.
(i) There are no legal or governmental proceedings pending or threatened to
which the Company is a party or to which any of the properties of the
Company are subject that are required to be described in the Registration
Statement or the Prospectus and that are not so described, nor are there
any statutes, regulations, contracts or other documents required to be
described in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described or filed as
required.
(j) Each preliminary prospectus filed as part of the Registration Statement
as originally filed or as a part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act, complied as to form, when so
filed, in all material respects with the Securities Act and the rules and
regulations of the Commission thereunder.
(k) The Company is not an "investment company" or an entity "controlled" by
an "investment company," as such terms are defined in the Investment
Company Act of 1940, as amended.
II.
The Company hereby agrees to sell the Offered Certificates to the
Underwriters, and the Underwriters, upon the basis of the representations and
warranties herein contained, but subject to the conditions hereinafter stated,
agrees to purchase the Offered Certificates from the Company, for a purchase
price which is the sum of 100.00% of the original principal amount of the
Offered Certificates.
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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, Xxxxxxx 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 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
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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)
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(other than copies of Computational Materials or ABS Term Sheets previously
submitted to the Company in accordance with this paragraph III(B)(e) for
filing pursuant to paragraph VI(e)), unless such Computational Materials or
ABS Term Sheets are preceded or accompanied by the delivery of a Prospectus
to such investor or prospective investor.
(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
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otherwise constitute Pool Information or Prospectus Information is presented in
any Computational Materials or ABS Term Sheets (or any written or electronic
materials furnished to prospective investors on which the Computational
Materials or ABS Term Sheets are based) in a way that is either inaccurate or
misleading in any material respect, such information shall not be Pool
Information or Prospectus Information.
IV.
Payment for the Offered Certificates shall be made to the order of the
Company in immediately available funds at the office of Xxxxxx Xxxxxxx & Co.
Incorporated, 1585 Broadway, New York, New York 10036, at 10:00 A.M., local
time, on March 28, 2003, 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
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and satisfied all of the conditions on its part to be performed or
satisfied on or before the Closing Date.
The officer signing and delivering such certificate may rely upon the best
of his knowledge as to proceedings threatened.
B. The Underwriters shall have received on the Closing Date an opinion of
counsel for the Company, dated the Closing Date, to the effect set forth in
Exhibit A.
C. The Underwriters shall have received on the Closing Date an opinion of
counsel to the Underwriters in form and substance acceptable to them.
D. The Underwriters shall have received on the Closing Date an opinion of
counsel of Fairbanks, 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 to the Unaffiliated Seller, in form and substance acceptable to the
Underwriters.
G. The Underwriters shall have received on the Closing Date an opinion of
counsel to IMPAC Funding Corporation, in form and substance acceptable to the
Underwriters.
H. The Underwriters shall have received on the Closing Date an opinion of
counsel to Novelle Financial Services, Inc.., in form and substance acceptable
to the Underwriters.
I. The Underwriters shall have received on the Closing Date an opinion of
counsel to Encore Credit Corp., in form and substance acceptable to the
Underwriters.
J. The Underwriters shall have received on the Closing Date an opinion of
counsel to BNC Mortgage, Inc., in form and substance acceptable to the
Underwriters.
K. The Underwriters shall have received on the Closing Date an opinion of
counsel to Chapel Mortgage Corporation, in form and substance acceptable to the
Underwriters.
L. The Underwriters shall have received on the Closing Date an opinion of
counsel to People's Choice Home Loan, Inc., in form and substance acceptable to
the Underwriters.
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M. The Underwriters shall have received on the Closing Date an opinion of
counsel to Aegis Mortgage Corporation, in form and substance acceptable to the
Underwriters.
N. The Underwriters shall have received on the Closing Date an opinion of
counsel to SIB Mortgage Corp., in form and substance acceptable to the
Underwriters.
O. The Underwriters shall have received on the Closing Date an opinion of
counsel to NC Capital Corporation, in form and substance acceptable to the
Underwriters.
P. The Underwriters shall have received on the Closing Date an opinion of
counsel to the Class A-1 Certificate Insurer, in form and substance acceptable
to the Underwriters.
Q. 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.
R. The Class A-1 Insurance Policy shall have been duly executed, delivered
and issued with respect to the Class A-1 Certificates.
S. The Class A-1, Class A-2, Class M-1, Class M-2, Class M-3, Class B-1,
and Class B-2 Certificates shall have been rated "Aaa", "Aaa", "Aa2, "A2", "A3",
"Baa2" and "Baa3", respectively, by Xxxxx'x Investors Service, Inc., "AAA",
"AAA", "AA", "A+", "A", "BBB" and "BBB-" by Fitch Ratings and "AAA", "AAA",
"AA", "A", "A-", "BBB" and "BBB-", respectively, by Standard & Poor's Ratings
Services, a division of The XxXxxx-Xxxx Companies, Inc.
T. 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.
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B. Before amending or supplementing the Registration Statement or the
Prospectus with respect to the Offered Certificates, to furnish the Underwriters
a copy of each such proposed amendment or supplement and not to file any such
proposed amendment or supplement to which the Underwriters reasonably objects.
C. If, during such period after the first date of the public offering of
the Offered Certificates, as in the opinion of counsel for the Underwriters the
Prospectus is required by law to be delivered in connection with sales by the
Underwriters, any event shall occur or condition exist as a result of which it
is necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading, or if it is necessary to amend or
supplement the Prospectus to comply with law, forthwith to prepare and furnish,
at its own expense, to the Underwriters, either amendments or supplements to the
Prospectus so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the Prospectus is
delivered to a purchaser, be misleading or so that the Prospectus will comply
with law.
D. To endeavor to qualify the Offered Certificates for offer and sale under
the securities or Blue Sky laws of such jurisdictions as the Underwriters shall
reasonably request and to pay all expenses (including fees and disbursements of
counsel) in connection with such qualification and in connection with the
determination of the eligibility of the Offered Certificates for investment
under the laws of such jurisdictions as the Underwriters may designate.
E. To file in a timely manner with the Commission in current reports on
Form 8-K under the Securities and Exchange Act of 1934 (the "Exchange Act") all
information with respect to the Offered Certificates which constitutes
"Computational Materials" as defined in the No-Action Letter of May 20, 1994
issued by the Commission to Xxxxxx, Xxxxxxx Acceptance Corporation I, Xxxxxx,
Xxxxxxx & Co. Incorporated and Xxxxxx Structured Asset Corporation, the
No-Action Letter of May 27, 1994 issued by the Commission to the Public
Securities Association and the No-Action Letter of March 9, 1995 issued by the
Commission to the Public Securities Association, in accordance with and in the
time frames set forth in such letters; provided, however, that prior to such
filing of the Computational Materials and ABS Term Sheets by the Company, the
Underwriters must comply with their obligations pursuant to paragraph III(B).
VII.
The Company agrees to indemnify and hold harmless the Underwriters and each
person, if any, who controls the Underwriters within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, 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
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statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon and in conformity with (i) the
information furnished in writing to the Company by any Underwriter specifically
for use in connection with the preparation of the Registration Statement, any
preliminary prospectus or the Prospectus or any revision or amendment thereof or
supplement thereto, (ii) any information in any Computational Materials or ABS
Terms Sheets required to be provided by any Underwriter to the Company pursuant
to paragraph III(B) other than Pool Information or Prospectus Information
(clause (i) and (ii) collectively the "Underwriter Information"), (iii) the
information concerning the Class A-1 Certificate Insurer under the caption "The
Class A-1 Certificate Insurer" in the Prospectus Supplement, including
information contained therein through incorporation by reference under the
caption "Incorporation of Information by Reference" (the "Insurer Information"),
(iv) the information concerning Fairbanks under the captions "Transaction
Overview - The Servicer" and "The Servicer" in the Prospectus Supplement (the
"Servicer Information") and (v) the information and data concerning the Mortgage
Loans set forth on any computer tape (or other electronic or printed medium)
furnished to the Company and any other information set forth in the Prospectus
Supplement other than the Underwriter Information, the Insurer Information, the
Servicer Information and the information underlining the caption "The Depositor"
in the Prospectus (such information, together with the Underwriter Information,
the Issuer Information and the Servicer Information, the "Excluded
Information").
Each Underwriter, severally and not jointly, agrees to indemnify and hold
harmless the Company and its directors and officers who sign the Registration
Statement and any person controlling the Company within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, to the same
extent as the foregoing indemnity from the Company to the Underwriters, but only
with reference to (i) information relating to the Underwriters furnished in
writing to the Company by any Underwriter specifically for use in connection
with the preparation of the Registration Statement, any preliminary prospectus
or the Prospectus or any revision or amendment thereof or supplement thereto and
(ii) any Computational Materials, the ABS Term Sheets or the Collateral Term
sheets, as applicable, furnished by such Underwriter, to the extent not Pool
Information or Prospectus Information
In case any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought
pursuant to either of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such 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
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indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by the Underwriters
in the case of parties indemnified pursuant to the first paragraph of this
Article VII and by the Company in the case of parties indemnified pursuant to
the second paragraph of this Article VII. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the third sentence of this
paragraph, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by such indemnifying
party of the aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to the
date of such settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding.
To the extent the indemnification provided for in this Article VII is
unavailable to an indemnified party under the first or second paragraph of this
Article VII or is insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand, and the Underwriters on the
other, from the offering of the Offered Certificates or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand, and of the Underwriters on the other, in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand, and the Underwriters on the other, in connection
with the offering of the Offered Certificates shall be deemed to be in the same
proportions that the total net proceeds from the offering of the Offered
Certificates (before deducting 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
12
of the Company on the one hand, and of the Underwriters on the other, shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Article VII were determined by pro
rata allocation or by any other method of allocation that does not take account
of the considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Article VII, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
underwriting discounts and commissions received by the Underwriters in
connection with the Offered Certificates underwritten and distributed to the
public by the Underwriters exceeds the amount of any damages that the
Underwriters have otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
The indemnity and contribution agreements contained in this Article VII and
the representations and warranties of the Company in this Agreement shall remain
operative and in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of the Underwriters or
any person controlling the Underwriters or by or on behalf of the Company, its
directors or officers or any person controlling the Company and (iii) acceptance
of any payment for any of the Offered Certificates.
VIII.
This Agreement shall be subject to termination in the Underwriters'
absolute discretion, by notice given to the Company, if (a) after the execution
and delivery of this Agreement and prior to the Closing Date: (i) trading
generally shall have been suspended or materially limited on or by, as the case
may be, any of the New York Stock Exchange, the American Stock Exchange, the
National Association of Securities Dealers, Inc., the Chicago Board of Options
Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii)
trading of any securities of the Company shall have been suspended on any
exchange or in any over-the-counter market, (iii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or 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
13
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: Xxxxxxxx Xxxxx, or, if sent to Xxxxxx
Xxxxxxx & Co. Incorporated, will be mailed, hand delivered, couriered or sent by
facsimile transmission to it at 0000 Xxxxxxxx, Xxx Xxxx, XX 00000, Attention:
Securitized Products Group, with a copy to 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, XX 00000, Attention: Xxxxxxxx Xxxxx.
This Agreement may be signed in any number of counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument.
[SIGNATURE PAGE FOLLOWS]
14
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
Very truly yours,
XXXXXX XXXXXXX ABS CAPITAL I INC.
By:
---------------------------------
Name:
Title:
Accepted and agreed to by:
XXXXXX XXXXXXX & CO. INCORPORATED
By:
--------------------------------
Name:
Title:
[Signature Page to the Underwriting Agreement]
SCHEDULE A
Class A-1 Class A-2 Class M-1 Class M-2 Class M-3
Underwriters Certificates Certificates Certificates Certificates Certificates
-------------------------------- ------------- ------------ ------------ ------------ ------------
Xxxxxx Xxxxxxx & Co. $160,000,000 $268,048,000 $ 31,708,000 $ 29,064,800 $ 7,662,400
Incorporated....................
Banc of America Securities LLC.. $ 20,000,000 $ 33,506,000 $ 3,963,500 $ 3,633,100 $ 957,800
Wachovia Securities, Inc........ $ 20,000,000 $ 33,506,000 $ 3,963,500 $ 3,633,100 $ 957,800
------------- ------------ ------------ ------------ ------------
Total........................... $200,000,000 $335,060,000 $ 39,635,000 $ 36,331,000 $ 9,578,000
Class B-1 Class B-2
Underwriters Certificates Certificates
-------------------------------- ------------ ------------
Xxxxxx Xxxxxxx & Co. $ 14,532,800 $ 8,984,000
Incorporated....................
Banc of America Securities LLC.. $ 1,816,600 $ 1,123,000
Wachovia Securities, Inc........ $ 1,816,600 $ 1,123,000
------------ ------------
Total........................... $ 18,166,000 $ 11,230,000
S-1
EXHIBIT A
OPINION OF XXXXX XXXXXXXXXX LLP,
COUNSEL FOR THE COMPANY
