EXHIBIT 1.1
[EXECUTION COPY]
XXXXXX XXXXXXX ABS CAPITAL I INC.
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2004-SD2
UNDERWRITING AGREEMENT
New York, New York
June 4, 2004
Xxxxxx Xxxxxxx & Co. Incorporated,
as representative of the several underwriters
listed on the attached Schedule A
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxxx Xxxxxxx ABS Capital I Inc., a Delaware corporation (the
"Company"), proposes to sell to you, as representative (the "Representative") of
yourself, Xxxxxxxx Capital Partners, L.P. ("Xxxxxxxx") and Xxxxxxxx & Partners
L.P. (together with the Representative and Xxxxxxxx, the "Underwriters"), Xxxxxx
Xxxxxxx ABS Capital I Inc., Series 2004-SD2, Mortgage Pass-Through Certificates
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 agreement dated as of June 1, 2004 (the "Pooling
Agreement"), among the Company, as depositor (in such capacity, the
"Depositor"), Xxxxxx Xxxxxxx Mortgage Capital Inc. (the "Seller"), Deutsche Bank
National Trust Company, as custodian (the "Custodian") and as trustee (the
"Trustee"). In addition to the Offered Certificates, the Depositor will
authorize for issuance the Mortgage Pass-Through Certificates, Series 2004-SD2,
Class X, Class P and Class R pursuant to the Pooling Agreement (the "Private
Certificates" and together with the Offered Certificates, the "Certificates").
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement, including a prospectus,
relating to the Offered Certificates and has filed with, or mailed for filing
to, or will prior to the Closing Date (as defined herein) file with or mail 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. 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
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
Agreement.
(d) This Agreement has been duly authorized, executed and delivered by
the Company.
(e) The Pooling 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 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 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 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 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,
Peabody Acceptance Corporation I, Xxxxxx, Xxxxxxx & Co. Incorporated
and Xxxxxx Structured Asset Corporation, as made applicable to other
issuers and underwriters by the Commission in response to the request
of the Public Securities Association dated May 24, 1994 (collectively,
the "Xxxxxx/PSA Letter"), as well as the PSA Letter referred to below.
In connection with the use of ABS Term Sheets, the Underwriters shall
comply with all applicable requirements of the No-Action Letter of
February 17, 1995, issued by the Commission to the Public Securities
Association (the "PSA Letter" and, together with the Xxxxxx/PSA Letter,
the "No-Action Letters").
(b) "Computational Materials" as used herein shall have the meaning
given such term in the No-Action Letters, but shall include only those
Computational Materials that have been prepared or delivered to
prospective investors by or at the direction of the Underwriters. "ABS
Term Sheets" and "Collateral Term Sheets" as used herein shall have the
meanings given such terms in the PSA Letter but shall include only
those ABS Term Sheets or Collateral Term Sheets that have been prepared
or delivered to prospective investors by or at the direction of the
Underwriters.
(c) All Computational Materials and ABS Term Sheets provided to
prospective investors that are required to be filed pursuant to the
No-Action Letters shall bear a legend on each page including the
following statement:
"THIS INFORMATION IS BEING DELIVERED TO A SPECIFIC NUMBER OF
PROSPECTIVE SOPHISTICATED INVESTORS IN ORDER TO ASSIST THEM IN
DETERMINING WHETHER THEY HAVE AN INTEREST IN THE TYPE OF
SECURITY DESCRIBED HEREIN. IT HAS BEEN PREPARED SOLELY FOR
INFORMATION PURPOSES AND IS NOT AN OFFER TO BUY OR SELL OR A
SOLICITATION OF AN OFFER TO BUY OR SELL ANY SECURITY OR
INSTRUMENT OR TO PARTICIPATE IN ANY TRADING STRATEGY. THIS
MATERIAL IS BASED ON INFORMATION THAT [UNDERWRITER] CONSIDERS
RELIABLE. [UNDERWRITER] MAKES NO REPRESENTATION OR WARRANTY
WITH RESPECT TO THE ACCURACY OR COMPLETENESS OF THE
INFORMATION, OR WITH RESPECT TO THE TERMS OF ANY FUTURE OFFER
OF SECURITIES CONFORMING TO THE TERMS HEREOF. ANY SUCH OFFER
OF SECURITIES WOULD BE MADE PURSUANT TO A DEFINITIVE
PROSPECTUS OR PRIVATE PLACEMENT MEMORANDUM, AS THE CASE MAY
BE, PREPARED BY THE ISSUER WHICH COULD CONTAIN MATERIAL
INFORMATION NOT CONTAINED HEREIN AND TO WHICH THE PROSPECTIVE
PURCHASERS ARE REFERRED. IN THE EVENT OF ANY SUCH OFFERING,
THIS INFORMATION SHALL BE DEEMED SUPERSEDED, AMENDED AND
SUPPLEMENTED IN ITS ENTIRETY BY SUCH PROSPECTUS OR PRIVATE
PLACEMENT MEMORANDUM. SUCH PROSPECTUS OR PRIVATE PLACEMENT
WILL CONTAIN ALL MATERIAL INFORMATION IN RESPECT OF ANY
SECURITIES OFFERED THEREBY AND ANY DECISION TO INVEST IN SUCH
SECURITIES SHOULD BE MADE SOLELY IN RELIANCE UPON SUCH
PROSPECTUS OR PRIVATE PLACEMENT MEMORANDUM. THE INFORMATION
CONTAINED HERE IN MAY BE BASED ON CERTAIN ASSUMPTIONS
REGARDING MARKET CONDITIONS AND OTHER MATTERS AND IS THEREFORE
SUBJECT TO CHANGE. WE MAKE NO REPRESENTATIONS REGARDING THE
REASONABLENESS OF SUCH ASSUMPTIONS OR THE LIKELIHOOD THAT ANY
OF SUCH ASSUMPTIONS WILL COINCIDE WITH ACTUAL MARKET
CONDITIONS OR EVENTS, AND THIS MATERIAL SHOULD NOT BE RELIED
ON FOR SUCH PURPOSES. NO REPRESENTATION IS MADE THAT ANY
RETURNS INDICATED WILL BE ACHIEVED."
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The Company shall have the right to require additional specific legends
or notations to appear on any Computational Materials or ABS Term
Sheets, the right to require changes regarding the use of terminology
and the right to determine the types of information appearing therein.
Notwithstanding the foregoing, paragraph III(B)(c) will be satisfied if
all Computational Materials and ABS Term Sheets referred to therein
bear a legend in a form previously approved in writing by the Company.
(d) Any Computational Materials and ABS Term Sheets are subject to the
review by and approval of the Company prior to their distribution to
any prospective investors and a copy of such Computational Materials
and ABS Term Sheets as are delivered to prospective investors shall, in
addition to the foregoing delivery requirements, be delivered to the
Company simultaneously with delivery to prospective investors.
(e) The Underwriters shall provide to the Company, for filing on Form
8-K as provided in paragraph VI(e), five (5) copies (in such format as
required by the Company) of all Computational Materials and ABS Term
Sheets that are required to be filed with the Commission pursuant to
the No-Action Letters. The Underwriters may provide copies of the
forgoing in a consolidated or aggregate form that includes all
information required to be filed. All Computational Materials and ABS
Term Sheets described in this paragraph III(B)(e) must be provided to
the Company not later than 10:00 a.m. New York time one business day
before filing thereof is required pursuant to the terms of this
Agreement. Each Underwriter agrees that it will not provide to any
investor or prospective investor in the Offered Certificates any
Computational Materials or ABS Term Sheets on or after the day on which
Computational Materials and ABS Term Sheets are required to be provided
to the Company pursuant to this paragraph III(B)(e) (other than copies
of Computational Materials or ABS Term Sheets previously submitted to
the Company in accordance with this paragraph III(B)(e) for filing
pursuant to paragraph VI(e)), unless such 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.
(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 (other than any Underwriter Information (as defined
herein)) (the "Prospectus Information"); provided, however, in each case, that
if any information that would otherwise constitute Pool Information or
Prospectus Information is presented in any Computational Materials or ABS Term
Sheets (or any written or electronic materials furnished to prospective
investors on which the Computational Materials or ABS Term Sheets are based) in
a way that is either inaccurate or misleading in any material respect, such
information shall not be Pool Information or Prospectus Information.
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IV.
Payment for the Offered Certificates shall be made to the
order of the Company in immediately available funds at the office of Xxxxxx
Xxxxxxx & Co. Incorporated, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00
A.M., local time, on June 4, 2004, or at such other time or place on the same or
such other date, not later than five business days after the date of this
Agreement, or as may be agreed to by the Company and Xxxxxx Xxxxxxx & Co.
Incorporated. Payment for the Offered Certificates shall be made upon delivery
to the Underwriters of the Offered Certificates registered in such names and in
such denominations as the Underwriters shall request in writing not less than
two full business days prior to the date of delivery. The time and date of such
payment and delivery with respect to the Offered Certificates are herein
referred to as the "Closing Date".
V.
The obligations of the Underwriters hereunder are subject to
the following conditions:
A. Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice
have been given of any intended or potential downgrading, or any review
for a possible change, that does not indicate the direction of the
possible change, in the rating accorded any of the Company's securities
by any "nationally recognized statistical rating organization", as such
term is defined for purposes of Rule 436(g)(2) under the Securities
Act;
(ii) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations, of the Company
and its subsidiaries, taken as a whole, from that set forth in the
Prospectus, that in the judgment of the Underwriters, is material and
adverse and that makes it, in the judgment of the Underwriters,
impracticable to market the Offered Certificates on the terms and in
the manner contemplated in the Prospectus; and
(iii) the Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of the Company, to the effect set forth in clause (i) above and to the
effect that the representations and warranties of the Company contained
in this Agreement are true and correct as of the Closing Date and that
the Company has complied with all of the agreements and satisfied all
of the conditions on its part to be performed or satisfied on or before
the Closing Date. The officer signing and delivering such certificate
may rely upon the best of his knowledge as to proceedings threatened.
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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 each of Bank of America, N.A., Washington Mutual Bank, FA
and Wilshire Credit Corporation (each a "Servicer" and, together, the
"Servicers"), 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 Custodian, in form and substance acceptable to the
Underwriters.
G. The Underwriters shall have received on the Closing Date an
opinion of counsel to the Seller, in form and substance acceptable to the
Underwriters.
H. 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.
I. The Class A, Class M-1, Class M-2, Class B-1 and Class B-2
Certificates shall have been rated "Aaa", "Xx0", "X0", "Xxx0" and "Baa3",
respectively, by Xxxxx'x Investors Service, Inc. and "AAA", "AA", "A", "BBB" and
"BBB-", respectively, by Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc.
J. 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.
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VI.
In further consideration of the agreements of the Underwriters
contained in this Agreement, the Company covenants as follows:
A. To furnish the Underwriters, without charge, a signed copy
of the Registration Statement and any amendments thereto, including exhibits,
and, during the period mentioned in paragraph (C) below, as many copies of the
Prospectus and any supplements and amendments thereto as the Underwriters may
reasonably request.
B. Before amending or supplementing the Registration Statement
or the Prospectus with respect to the Offered Certificates, to furnish the
Underwriters a copy of each such proposed amendment or supplement and not to
file any such proposed amendment or supplement to which the Underwriters
reasonably object.
C. If, during such period after the first date of the public
offering of the Offered Certificates, as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in connection
with sales by the Underwriters, any event shall occur or condition exist as a
result of which it is necessary to amend or supplement the Prospectus in order
to make the statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or if it is necessary to
amend or supplement the Prospectus to comply with law, forthwith to prepare and
furnish, at its own expense, to the Underwriters, either amendments or
supplements to the Prospectus so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the Prospectus
will comply with law.
D. To endeavor to qualify the Offered Certificates for offer
and sale under the securities or Blue Sky laws of such jurisdictions as the
Underwriters shall reasonably request and to pay all expenses (including fees
and disbursements of counsel) in connection with such qualification and in
connection with the determination of the eligibility of the Offered Certificates
for investment under the laws of such jurisdictions as the Underwriters may
designate.
E. To file in a timely manner with the Commission in current
reports on Form 8-K under the Securities and Exchange Act of 1934 (the "Exchange
Act") all information with respect to the Offered Certificates which constitutes
"Computational Materials" as defined in the No-Action Letter of May 20, 1994
issued by the Commission to Xxxxxx, Peabody Acceptance Corporation I, Xxxxxx,
Xxxxxxx & Co. Incorporated and Xxxxxx Structured Asset Corporation, the
No-Action Letter of May 27, 1994 issued by the Commission to the Public
Securities Association and the No-Action Letter of March 9, 1995 issued by the
Commission to the Public Securities Association, in accordance with and in the
time frames set forth in such letters; provided, however, that prior to such
filing of the Computational Materials and ABS Term Sheets by the Company, the
Underwriters must comply with their obligations pursuant to paragraph III(B).
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VII.
The Company agrees to indemnify and hold harmless the
Underwriters and each person, if any, who controls the Underwriters within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages and liabilities caused
by any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement, any preliminary prospectus or the Prospectus (if
used within the period set forth in paragraph C of Article VI and as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon and in conformity with (i) the
information furnished in writing 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, (iii)
the information and data concerning the Mortgage Loans set forth on any computer
tape (or other electronic or printed medium) furnished to the Company by any
Underwriter and set forth in the Prospectus Supplement (clauses (i), (ii) and
(iii) collectively the "Underwriter Information"), (iv) the information
concerning the Servicers under the caption "The Servicers" in the Prospectus
Supplement (the "Servicer Information") and (v) the information concerning the
Master Reporting Agent under the caption "The Master Reporting Agent" in the
Prospectus Supplement (the "Master Reporting Agent Information" and, together
with the Underwriter 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 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.
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To the extent the indemnification provided for in this Article
VII is unavailable to an indemnified party under the first or second paragraph
of this Article VII or is insufficient in respect of any losses, claims, damages
or liabilities referred to therein, then each indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand, and the Underwriters on the
other, from the offering of the Offered Certificates or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand, and of the Underwriters on the other, in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand, and the Underwriters on the other, in connection
with the offering of the Offered Certificates shall be deemed to be in the same
proportions that the total net proceeds from the offering of the Offered
Certificates (before deducting expenses) received by the Company and the total
underwriting discounts and commissions received by the Underwriters in respect
thereof respectively, bear to the aggregate public offering price of the Offered
Certificates. The relative fault of the Company on the one hand, and of the
Underwriters on the other, shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
11
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 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.
12
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]
13
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
Very truly yours,
XXXXXX XXXXXXX 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 Class M-1 Class M-2 Class B-1 Class B-2
Underwriters Certificates Certificates Certificates Certificates Certificates
------------ ------------ ------------ ------------ ------------ -------------
Xxxxxx Xxxxxxx & Co. Incorporated........ $189,471,538 $10,059,699 $8,942,946 $7,265,338 $2,236,480
Xxxxxxxx Capital Partners, L.P........... 869,231 46,150 41,027 33,331 10,260
Xxxxxxxx & Partners, L.P................. 869,231 46,150 41,027 33,331 10,260
Total.................................. $191,210,000 $10,152,000 $9,025,000 $7,332,000 $2,257,000
S-1
EXHIBIT A
OPINION OF XXXXX XXXXXXXXXX LLP,
COUNSEL FOR THE COMPANY
A-1
