EXECUTION COPY
MORGAN STANLEY ABS CAPITAL I INC.
MORTGAGE PASS-THROUGH CERTIFICATES
Series 2005-HE4
UNDERWRITING AGREEMENT
New York, New York
November 23, 2005
Morgan Stanley & Co. Incorporated
as representative of the several underwriters listed on
the attached Schedule A
1585 Broadway
New York, New York 10036
Dear Sirs and Madams:
Morgan Stanley 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 2005-HE4, Mortgage Pass-Through Certificates,
Series
2005-HE4 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 November 1, 2005 (the "Pooling and Servicing Agreement")
among Morgan
Stanley ABS Capital I, Inc., as depositor (the "Depositor"), Saxon
Mortgage
Services Inc., as the servicer ("Saxon"), Deutsche Bank National
Trust Company,
as custodian (the "Custodian"), as trustee (in such capacity, the
"Trustee"),
and as swap administrator (in such capacity, the "Swap
Administrator") 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 2005-HE4, 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 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 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
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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 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.
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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:
i)
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
Kidder,
Peabody Acceptance Corporation I, Kidder, Peabody & Co.
Incorporated
and Kidder 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 "Kidder/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 Kidder/PSA
Letter, the "No-Action Letters").
ii)
"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.
iii) 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
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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 HEREIN 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.
iv)
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
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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 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.
vi)
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.
vii) 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
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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 AB
