EXECUTION COPY
XXXXXX XXXXXXX ABS CAPITAL I INC.
MORTGAGE PASS-THROUGH CERTIFICATES
Series 2006-HE2
UNDERWRITING AGREEMENT
New York, New York
May 25, 2006
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 and Madams:
Xxxxxx Xxxxxxx ABS Capital I Inc., a Delaware corporation (the
"Company"), proposes to sell to you, as representative (the "Representative") of
yourself, Bank of America Securities LLC ("Bank of America") and Countrywide
Securities, Inc. ("Countrywide") (together, the "Underwriters"), IXIS Real
Estate Capital Trust 2006-HE2, Mortgage Pass-Through Certificates, Series
2006-HE2 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 May 1, 2006 (the "Pooling and Servicing Agreement") among Xxxxxx Xxxxxxx
ABS Capital I, Inc., as depositor (the "Depositor"), Master Financial, Inc., as
a servicer ("Master Financial"), Saxon Mortgage Services, as a servicer
("Saxon"), JPMorgan Chase Bank, National Association, as securities
administrator, master servicer and backup servicer (in each such capacity, the
"Securities Administrator", "Master Servicer" and "Backup Servicer",
respectively), and Deutsche Bank National Trust Company, as trustee and
custodian (in each such capacity, the "Trustee" and the "Custodian",
respectively), and IXIS Real Estate 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
2006-HE2, Class X, Class P and Class R pursuant to the Pooling and Servicing
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, 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 the Free Writing Prospectus,
dated April 21, 2006, and any ABS Informational and Computational Materials (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
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Certificates, when executed and authenticated in the manner contemplated in
the Pooling and Servicing Agreement, and delivered to and paid for by the
Underwriters in accordance with the terms of this Agreement, will be
validly issued and outstanding and entitled to the benefits of the Pooling
and Servicing Agreement.
(g) Neither the execution and delivery by the Company of, nor the
performance by the Company of its obligations under, this Agreement or the
Pooling and Servicing Agreement, will contravene any provision of
applicable law or the certificate of incorporation or by-laws of the
Company or any agreement or other instrument binding upon the Company that
is material to the Company or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or
any subsidiary, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement and the
Pooling and Servicing Agreement, except such as may be required by the
securities or Blue Sky laws of the various states in connection with the
offer and sale of the Offered Certificates.
(h) There has not occurred any material adverse change, or any development
involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of the
Company and its subsidiaries, taken as a whole, from that set forth in the
Prospectus.
(i) There are no legal or governmental proceedings pending or threatened to
which the Company is a party or to which any of the properties of the
Company are subject that are required to be described in the Registration
Statement or the Prospectus and that are not so described, nor are there
any statutes, regulations, contracts or other documents required to be
described in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described or filed as
required.
(j) Each preliminary prospectus filed as part of the Registration Statement
as originally filed or as a part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act, complied as to form, when so
filed, in all material respects with the Securities Act and the rules and
regulations of the Commission thereunder.
(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
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Certificates from the Company, for a purchase price which is the sum of
approximately 99.75% of the original principal amount of the Offered
Certificates.
III.
(a) The Underwriters propose to make a public offering of the Offered
Certificates as soon as this Agreement is entered into. The terms of the
public offering of the Offered Certificates are set forth in the
Prospectus.
(b) It is understood that the Underwriters may prepare and provide to
prospective investors certain ABS Informational and Computational Materials
(as defined below) in connection with the offering of the Offered
Certificates, subject to the following conditions:
i) In connection with the use of ABS Informational and Computational
Materials, the Underwriters shall comply with all applicable
requirements of Regulation AB.
ii) "ABS Informational and Computational Materials" as used herein
shall have the meaning given such term in item 1101(a) of
Regulation AB but shall include only those ABS Informational and
Computational Materials that have been prepared or delivered to
prospective investors by or at the direction of the Underwriters.
iii) All ABS Informational and Computational Materials provided to
prospective investors that are required to be filed pursuant to
Regulation AB shall bear a legend on each page including the
following statement:
"THIS MATERIAL IS NOT A SOLICITATION OF ANY OFFER TO BUY OR SELL
ANY SECURITY OR OTHER FINANCIAL INSTRUMENT OR TO PARTICIPATE IN
ANY TRADING STRATEGY. THIS MATERIAL WAS NOT PREPARED BY THE
XXXXXX XXXXXXX RESEARCH DEPARTMENT. PLEASE REFER TO IMPORTANT
INFORMATION AND QUALIFICATIONS AT THE END OF THIS MATERIAL."
The Company shall have the right to require additional specific
legends or notations to appear on any ABS Informational or
Computational Materials, 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 ABS Informational
and Computational Materials referred to therein bear a legend in
a form previously approved in writing by the Company.
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iv) Any ABS Informational and Computational Materials are subject to
the review by and approval of the Company prior to their
distribution to any prospective investors and a copy of such ABS
Informational and Computational Materials 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.
v) 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 ABS Informational and
Computational that are required to be filed with the Commission
pursuant to Regulation AB. The Underwriters may provide copies of
the forgoing in a consolidated or aggregate form that includes
all information required to be filed. All ABS Informational and
Computational Materials 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 ABS Informational and
Computational Materials on or after the day on which ABS
Informational and Computational Materials are required to be
provided to the Company pursuant to this paragraph III(B)(e)
(other than copies of ABS Informational and Computational
Materials previously submitted to the Company in accordance with
this paragraph III(B)(e) for filing pursuant to paragraph VI(e)),
unless such ABS Informational and Computational Materials are
preceded or accompanied by the delivery of a Prospectus to such
investor or prospective investor.
vi) All information included in the Computational ABS Informational
and Computational Materials 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 ABS Informational and
Computational Materials may include information based on
alternative methodologies or assumptions if specified therein.
vii) The Company shall not be obligated to file any ABS Informational
and Computational Materials that in the reasonable determination
of the Company are not required to be filed pursuant to
Regulation AB.
(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
ABS Informational and Computational Materials 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
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Commission with respect to the Offered Certificates in accordance with
Regulation AB; (ii) on the date any such ABS Informational and
Computational Materials with respect to such Certificates (or any written
or electronic materials furnished to prospective investors on which the ABS
Informational and Computational Materials 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 ABS Informational and Computational Materials (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 ABS Informational and Computational Materials
were prepared or disseminated on behalf of the Company; and (iv) all ABS
Informational and Computational Materials (or underlying materials
distributed to prospective investors on which the ABS Informational and
Computational Materials 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 ABS Informational and Computational Materials
(or any written or electronic materials furnished to prospective investors
on which the ABS Informational and Computational Materials 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 Company (the "Pool Information") or (ii) contained in
(but not incorporated by reference in) any Prospectus; provided, however,
in each case, that if any information that would otherwise constitute Pool
Information or Prospectus Information is presented in any ABS Informational
and Computational Materials (or any written or electronic materials
furnished to prospective investors on which the ABS Informational and
Computational Materials 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 May 25, 2006, 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
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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.
(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 to Saxon, in form and substance acceptable to the Underwriters.
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(e) The Underwriters shall have received on the Closing Date an opinion of
counsel to Master Financial, in form and substance acceptable to the
Underwriters.
(f) The Underwriters shall have received on the Closing Date an opinion of
counsel to the Custodian and the Trustee in form and substance acceptable
to them.
(g) The Underwriters shall have received on the Closing Date an opinion of
counsel to the Securities Administrator, Master Servicer and Backup
Servicer in form and substance acceptable to them.
(h) 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.
(i) 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 Company and from the Company to the
Securities Administrator, and such counsel shall have consented to reliance
on such opinion by the Rating Agencies as though such opinion had been
addressed to them.
(j) The Depositor shall have received a letter from Xxxxx'x to the effect
that it has assigned ratings of "Aaa," "Aaa," "Aaa," "Aaa," "Aa1," "Aa2,"
"Aa3," "A1," "A2," "A3," "Baa1," "Baa2," "Baa3" and "Ba1" to the Class A-1,
Class A-2, Class A-3, Class A-4, Class M-1, Class M-2, Class M-3, Class
M-4, Class M-5, Class M-6, Class B-1, Class B-2, Class B-3 and Class B-4
Certificates, respectively.
(k) The Depositor shall have received a letter from S&P to the effect that
it has assigned ratings of "AAA," "AAA," "AAA," "AAA," "AA+," "AA", "AA,"
"AA-," "A+," "A," "A-," "BBB+," "BBB" and "BBB-" to the Class A-1, Class
A-2, Class A-3, Class A-4, Class M-1, Class M-2, Class M-3, Class M-4,
Class M-5, Class M-6, Class B-1, Class B-2, Class B-3 and Class B-4
Certificates, respectively.
(l) The Depositor shall have received a letter from Fitch to the effect
that it has assigned ratings of "AAA," "AAA," "AAA," "AAA," "AA+," "AA,"
"AA-," "A+," "A," "A-," "BBB+," "BBB," "BBB-" and "BB+"] to the Class A-1,
Class A-2, Class A-3, Class A-4, Class M-1, Class M-2, Class M-3, Class
M-4, Class M-5, Class M-6, Class B-1, Class B-2, Class B-3 and Class B-4
Certificates, respectively.
(m) 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 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 all information with
respect to the Offered Certificates which constitutes ABS Informational and
Computational Materials as defined in Item 1101(a) of Regulation AB.
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
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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, the Free Writing Prospectus or the
Prospectus or any revision or amendment thereof or supplement thereto, (ii) any
information in any ABS Informational and Computational Materials 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
Saxon and Master Financial under the captions "Transaction Overview - The
Servicers" and "The Servicers" in the Prospectus Supplement (the "Servicer
Information") and (iv) 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 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 ABS Informational or Computational Materials 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
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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.
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
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aggregate public offering price of the Offered Certificates. The relative fault
of the Company on the one hand, and of the Underwriters on the other, shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Article VII were determined by pro
rata allocation or by any other method of allocation that does not take account
of the considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Article VII, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
underwriting discounts and commissions received by the Underwriters in
connection with the Offered Certificates underwritten and distributed to the
public by the Underwriters exceeds the amount of any damages that the
Underwriters have otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
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
12
judgment of the Underwriters, is material and adverse and (b) in the case of any
of the events specified in clauses (a)(i) through (iv), such event singly or
together with any other such event, makes it, in the judgment of the
Underwriters, impracticable to market the Offered Certificates on the terms and
in the manner contemplated in the Prospectus.
IX. If this Agreement shall be terminated by the Underwriters because of any
failure or refusal on the part of the Company to comply with the terms or to
fulfill any of the conditions of this Agreement, or if for any reason the
Company shall be unable to perform its obligations under this Agreement, the
Company will reimburse the Underwriters for all out-of-pocket expenses
(including the fees and disbursements of its counsel) reasonably incurred by the
Underwriters in connection with the Offered Certificates.
The Company acknowledges that in connection with the offering of the
Certificates (a) the Underwriters have acted at arms length, are not agents of,
and owe no fiduciary duties to, the Company or any other person, (b) the
Underwriters owe the Company only those duties and obligations set forth in this
Agreement and (c) the Underwriters may have interests that differ from those of
the Company. The Company waives to the full extent permitted by applicable law
any claims it may have against the Underwriters arising from an alleged breach
of fiduciary duty in connection with the offering of the Certificates.
This Agreement, together with any contemporaneous written agreements and
any prior written agreements (to the extent not superseded by this Agreement)
that relate to the offering of the Offered Certificates, represents the entire
agreement between the Company the Underwriters with respect to the preparation
of the Prospectus, and the conduct of the offering, and the purchase and sale of
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 Xxxxxxxx, 00xx Xxxxx,
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 Xxxxxxxx, 00xx Xxxxx, 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-1 CLASS A-2 CLASS A-3 CLASS A-4
UNDERWRITERS CERTIFICATES CERTIFICATES CERTIFICATES CERTIFICATES
---------------------------------------- ------------ ------------ ------------ ------------
Xxxxxx Xxxxxxx & Co. Incorporated ..... 395,626,697 122,379,685 166,140,170 106,570,175
Banc of America Securities LLC ......... 2,047,768 633,438 859,943 551,608
Countrywide Securities Corporation ..... 2,047,768 633,438 859,943 551,608
Xxxxxx Brothers Inc. ................... 2,047,768 633,438 859,943 551,608
TOTAL .................................. $401,770,000 $124,280,000 $168,720,000 $108,225,000
CLASS M-1 CLASS M-2 CLASS M-3 CLASS M-4 CLASS M-5 CLASS M-6
UNDERWRITERS CERTIFICATES CERTIFICATES CERTIFICATES CERTIFICATES CERTIFICATES CERTIFICATES
---------------------------------------- ------------ ------------ ------------ ------------ ------------ ------------
Xxxxxx Xxxxxxx & Co. Incorporated ...... 33,972,474 31,510,701 18,217,124 16,247,705 15,755,350 14,770,641
Banc of America Securities LLC ........ 175,842 163,100 94,292 84,098 81,550 76,453
Countrywide Securities Corporation ..... 175,842 163,100 94,292 84,098 81,550 76,453
Xxxxxx Brothers Inc. ................... 175,842 163,100 94,292 84,098 81,550 76,453
TOTAL .................................. $34,500,000 $32,000,000 $18,500,000 $16,500,000 $16,000,000 $15,000,000
CLASS B-1 CLASS B-2 CLASS B-3 CLASS B-4
UNDERWRITERS CERTIFICATES CERTIFICATES CERTIFICATES CERTIFICATES
---------------------------------------- ------------ ------------ ------------ ------------
Xxxxxx Xxxxxxx & Co. Incorporated ..... 13,785,932 11,324,158 9,847,094 9,847,094
Banc of America Securities LLC ......... 71,356 58,614 50,969 50,969
Countrywide Securities Corporation ..... 71,356 58,614 50,969 50,969
Xxxxxx Brothers Inc. ................... 71,356 58,614 50,969 50,969
TOTAL .................................. $14,000,000 $11,500,000 $10,000,000 $10,000,000
S-A-1
EXHIBIT A
OPINION OF XXXXX XXXXXXXXXX LLP,
COUNSEL FOR THE COMPANY
A-1
