EXHIBIT 99.4
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INDEMNIFICATION
AND
CONTRIBUTION AGREEMENT
THIS INDEMNIFICATION AND CONTRIBUTION AGREEMENT, dated February 28,
2006 (the "Agreement"), is among Bond Securitization, L.L.C., (the
"Depositor"), X.X. Xxxxxx Securities Inc. ("JPMorgan"), Deutsche Bank
Securities Inc. ("Deutsche Bank"), SG Americas Securities, LLC ("SG Americas")
and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx" and,
together with JPMorgan, Deutsche Bank, SG Americas and Xxxxxxx Xxxxx, the
"Underwriters"), Credit-Based Asset Servicing and Securitization LLC
("C-BASS") and Xxxxxx Loan Servicing LP ("Xxxxxx").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, C-BASS, Xxxxxx and the Depositor are parties to the Pooling
and Servicing Agreement (as defined herein);
WHEREAS, C-BASS and Xxxxxx stand to receive substantial financial
benefits in their respective capacities as seller and servicer under the
Pooling and Servicing Agreement (as defined herein);
WHEREAS, the Underwriters and the Depositor have entered into an
Underwriting Agreement (as defined herein) pursuant to which the Underwriters
have agreed to underwrite the Offered Certificates (as defined herein);
WHEREAS, as an inducement to the Depositor to enter into the Pooling
and Servicing Agreement and the Underwriting Agreement and to the Underwriters
to enter into the Underwriting Agreement, C-BASS and Xxxxxx wish to provide
for indemnification and contribution on the terms and conditions hereinafter
set forth;
WHEREAS, as an inducement to C-BASS to sell to the Depositor the
Mortgage Loans pursuant to the Mortgage Loan Purchase Agreement (as defined
herein), the Depositor and the Underwriters wish to provide indemnification
and contribution to C-BASS on the terms and conditions hereinafter set forth;
and
WHEREAS, as an inducement to Xxxxxx to service the Mortgage Loans
pursuant to the Pooling and Servicing Agreement (as defined herein), the
Depositor and the Underwriters wish to provide indemnification and
contribution to Xxxxxx on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing and of other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
1.1. Certain Defined Terms.
The following terms shall have the meanings set forth below, unless
the context clearly indicates otherwise:
ABS ICM: A Free Writing Prospectus that consists of information
contemplated by the definition of ABS informational and computational
materials in Item 1101(a) of Regulation AB under the Act.
Act: The Securities Act of 1933, as amended.
Agreement: This Indemnification and Contribution Agreement, as the
same may be amended in accordance with the terms hereof.
Base Prospectus: The prospectus dated February 27, 2006, as the same
may be amended or supplemented, of Bond Securitization, L.L.C. related to the
offering from time to time of one or more series of mortgage loan asset-backed
certificates.
Bloomberg Submission: The material submitted to Bloomberg for
ultimate access by investors.
Collateral Strats: Information regarding the Mortgage Loans that is
based on the Seller Mortgage Loan Information.
Computational Materials: A Free Writing Prospectus containing only
information of the type specified in paragraph (5) of the definition of ABS
ICM; provided, however, that Computational Materials do not include any
misstatement or omission or alleged misstatement or omission that results from
a Pool Error.
Contract of Sale: As defined in Rule 159 under the Act.
Disclosure Package: The Issuer Free Writing Prospectus and Base
Prospectus, collectively.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Final Free Writing Prospectus: The Free Writing Prospectus referred
to in Section 2.3(c) hereof.
Form 8-K: The Current Report on Form 8-K, if any, filed by or on
behalf of Bond Securitization L.L.C. with respect to the Mortgage Loans and
including any ABS ICM or Preliminary Term Sheet furnished by one or more of
the Underwriters.
Free Writing Prospectus: The meaning set forth in Rules 405 and 433
under the Act.
Investor Materials: ABS ICM or Preliminary Term Sheet, in each case
only the the extent such ABS ICM or Preliminary Term Sheet have been prepared
or delivered to prospective investors by the Underwriters.
Issuer Free Writing Prospectus: The Free Writing Prospectus of Bond
Securitization, L.L.C. provided by Bond Securitization, L.L.C. to the
Underwriters in connection with the Offered Certificates.
Mortgage Loan Purchase Agreement: The Mortgage Loan Purchase
Agreement, dated as of February 1, 2006, between the Depositor and C-BASS.
Offered Certificates: C-BASS Mortgage Loan Asset-Backed Certificates,
Series 2006-CB2, Class AV, Class AF-1, Class AF-2, Class AF-3, Class AF-4,
Class M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class M-6 and Class M-7
Certificates issued pursuant to the Pooling and Servicing Agreement.
Person: Any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
Pooling and Servicing Agreement: The Pooling and Servicing Agreement
dated as of February 1, 2006, among the Depositor, C-BASS, Xxxxxx and U.S.
Bank National Association, as trustee.
Preliminary Term Sheet: A Free Writing Prospectus that describes the
Certificates and/or the Mortgage Loans and contains information of the type
described in Item 1101(a)(1) - (3) of Regulation AB under the Act but
excluding any Computational Materials.
Private Placement Memorandum: The private placement memorandum dated
February 28, 2005 relating to the private offering by the Underwriters of the
Class B-1, Class B-2, Class B-3, Class B-4, Class P, Class R, Class CE and
Class R-X Certificates.
Prospectus: The prospectus dated February 27, 2006 of Bond
Securitization, L.L.C.
Prospectus Supplement: The prospectus supplement dated February 28,
2006 relating to the public offering by the Underwriters of the Offered
Certificates.
Rules and Regulations: The rules and regulations of the Commission
promulgated under the Act.
Seller Information: (i) The information in the Free Writing
Prospectus contained under the headings "Summary of Free Writing Prospectus --
Mortgage Loan Seller," "The Seller," "The Mortgage Pool," any substantially
identical information in the Private Placement Memorandum and other
information and assumptions set forth in the Free Writing Prospectus, to the
extent such information is based on or derived from information on the
Mortgage Loans furnished by C-BASS in writing or by electronic means and (ii)
the information concerning the
characteristics of the Mortgage Loans that was furnished by C-BASS in writing
or by electronic means and used by the Underwriters in the preparation of any
Investor Materials.
Servicer Information: The information in the Prospectus Supplement
contained under the heading "Summary of Prospectus Supplement--Servicer" and
"The Servicer."
Underwriter: Each Broker-Dealer other than the Purchaser.
Underwriting Agreement: The Underwriting Agreement, dated February
28, 2006, between the Underwriters and the Depositor, relating to the Offered
Certificates.
Written Communication: The meaning set forth in Rule 405 under the
Act.
1.2. Other Terms.
Capitalized terms used but not defined herein shall have the meanings
assigned to such terms in the Underwriting Agreement.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES
2.1. Representations.
Each party hereto represents that:
(a) it has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement;
(b) this Agreement has been duly authorized, executed and
delivered by such party; and
(c) assuming the due authorization, execution and delivery
by each other party hereto, this Agreement constitutes the legal, valid and
binding obligation of such party.
(d) In relation to each Member State of the European Economic
Area that has implemented the Prospectus Directive (each, a "Relevant Member
State"), each Underwriter represents that with effect from and including the
date on which the Prospectus Directive is implemented in that Relevant Member
State (the "Relevant Implementation Date") and with respect to any Class of
Certificates with a minimum denomination of less than $100,000 that is
purchased by such Underwriter it has not made and will not make an offer of
Certificates of that Class to the public in that Relevant Member State prior
to the publication of a prospectus in relation to the Certificates of that
Class which has been approved by the competent authority in that Relevant
Member State or, where appropriate, approved in another Relevant Member State
and notified to the competent authority in that Relevant Member State, all in
accordance with the Prospectus Directive, except that it may, with effect from
and including the Relevant Implementation Date, make an offer of Certificates
of that Class to the public in that Relevant Member State at any time:
(i) to legal entities which are authorized or regulated to
operate in the financial markets or, if not so
authorized or regulated, whose corporate purpose is
solely to invest in securities;
(ii) to any legal entity which has two or more of (1) an
average of at least 250 employees during the last
fiscal year; (2) total assets of more than
(euro)43,000,000 and (3) an annual net revenue of more
than (euro)50,000,000, as shown in its last annual or
consolidated financial statements; or
(iii) in any other circumstances that do not require the
publication by the Depositor of a prospectus pursuant
to Article 3 of the Prospectus Directive.
For the purposes of this provision, the expression an "offer
of Certificates of that Class to the public" in relation to any Class of
Certificates, which Class has a minimum denomination of less than $100,000, in
any Relevant Member State means the communication in any form and by any means
of sufficient information on the terms of the offer and the Certificates to be
offered so as to enable an investor to decide to purchase or subscribe the
Certificates of that Class, as the same may be varied in that Member State by
any measure implementing the Prospectus Directive in that Member State, and
the expression "Prospectus Directive" means Directive 2003/71/EC and includes
any relevant implementing measure in each Relevant Member State.
2.2. Marketing.
(a) Each Underwriter represents to and agrees with the
Depositor as follows:
(i) Prior to entering into any Contract of Sale, the
Underwriter shall convey the Disclosure Package to each
prospective investor. The Underwriter shall keep sufficient
records to document its conveyance of the Disclosure Package to
each potential investor prior to the related Contract of Sale.
(ii) An Underwriter may convey ABS ICM or a Preliminary Term
Sheet to a potential investor prior to entering into a Contract of
Sale with such investor; provided, however, that such Underwriter
shall not enter into a Contract of Sale with such investor unless
the Underwriter has complied with paragraph (i) above prior to
such Contract of Sale. In addition, if such ABS ICM or Preliminary
Term Sheet contains any information regarding the transaction
other than the Senior Structure, Bloomberg Submissions, Collateral
Strats or Computational Materials (such ABS ICM or Preliminary
Term Sheet, a "Traditional Term Sheet"), such Underwriter: (x)
shall deliver a copy of the proposed Traditional Term Sheet to the
Depositor and its counsel at least one business day prior to the
anticipated first use; (y) shall not convey any such Traditional
Term Sheet to which the Depositor or its counsel reasonably
objects; and (z) shall convey such Traditional Term Sheet in final
form to counsel for the Depositor and to each potential investor
in the class or classes of Public Certificates to which such
Traditional Term Sheet relates.
(iii) An Underwriter may convey Computational Materials (x)
to a potential investor prior to entering into a Contract of Sale
with such investor; provided, however,
that such Underwriter shall not enter into a Contract of Sale with
such investor unless the Underwriter has complied with paragraph
(i) above prior to such Contract of Sale and such Computational
Materials shall be conveyed separate and apart from any
Preliminary Term Sheet and (y) to an investor after a Contract of
Sale provided that the Underwriter has complied with paragraph (i)
above in connection with such Contract of Sale. The Underwriter
shall keep sufficient records of any conveyance of Computational
Materials to potential or actual investors and shall maintain such
records as required by the Rules and Regulations.
(iv) Each ABS ICM or Preliminary Term Sheet, other than a
Bloomberg Submission, shall contain legends that are substantially
similar to the following:
The information in this free writing prospectus is
preliminary. This free writing prospectus is being delivered to you
solely to provide you with information about the offering of the
securities referred to in this free writing prospectus and to solicit
an offer to purchase the securities, when, as and if issued. Any such
offer to purchase made by you will not be accepted and will not
constitute a contractual commitment by you to purchase any of the
securities until we have accepted your offer to purchase. You may
withdraw your offer to purchase securities at any time prior to our
acceptance of your offer.
The asset-backed securities referred to in this free writing
prospectus are being offered when, as and if issued. In particular,
you are advised that asset-backed securities, and the asset pools
backing them, are subject to modification or revision (including,
among other things, the possibility that one or more classes of
securities may be split, combined or eliminated), at any time prior
to issuance or availability of a final prospectus. As a result, you
may commit to purchase securities that have characteristics that
change, and you are advised that all or a portion of the securities
may not be issued that have the characteristics described in this
free writing prospectus. Any obligation on our part to sell
securities to you will be conditioned on the securities having the
characteristics described in this free writing prospectus. If that
condition is not satisfied, we will notify you, and neither the
issuer nor any underwriter will have any obligation to you to deliver
all or any portion of the securities which you have committed to
purchase, and there will be no liability between us as a consequence
of the non-delivery.
THE ISSUER HAS FILED A REGISTRATION STATEMENT (INCLUDING A
PROSPECTUS) WITH THE SEC FOR THE OFFERING TO WHICH THIS COMMUNICATION
RELATES. BEFORE YOU INVEST, YOU SHOULD READ THE PROSPECTUS IN THAT
REGISTRATION STATEMENT AND OTHER DOCUMENTS THE ISSUER HAS FILED WITH
THE SEC FOR MORE COMPLETE INFORMATION ABOUT THE ISSUER AND THIS
OFFERING. YOU MAY GET THESE DOCUMENTS AT NO CHARGE BY VISITING XXXXX
ON THE SEC WEB SITE AT XXX.XXX.XXX. ALTERNATIVELY, THE ISSUER, ANY
UNDERWRITER OR ANY DEALER PARTICIPATING IN THE OFFERING WILL ARRANGE
TO SEND YOU THE PROSPECTUS AT NO CHARGE IF YOU REQUEST IT BY CALLING
TOLL-FREE 1-8[ZZ-ZZZ-ZZZZ].
This free writing prospectus does not contain all
information that is required to be included in the base prospectus
and the prospectus supplement.
The information in this free writing prospectus is
preliminary and is subject to completion or change.
The information in this free writing prospectus, if conveyed
prior to the time of your commitment to purchase, supersedes any
similar prior information contained in any prior free writing
prospectus relating to these securities.
Please click here for a copy of the base prospectus
applicable to this offering. [insert link direct to base as posted on
a website, or link to an embedded pdf copy of the base prospectus]
The information in this free writing prospectus may be based
on preliminary assumptions about the pool assets and the structure.
Any such assumptions are subject to change.
The information in this free writing prospectus may reflect
parameters, metrics or scenarios specifically requested by you. If
so, prior to the time of your commitment to purchase, you should
request updated information based on any parameters, metrics or
scenarios specifically required by you.
Neither the issuer of the securities nor any of its
affiliates prepared, provided, approved or verified any statistical
or numerical information presented in this free writing prospectus,
although that information may be based in part on loan level data
provided by the issuer or its affiliates.
(v) Bloomberg Submissions shall include the third legend in
(iv) above and shall not be required to have any other legends.
(vi) Unless preceded or accompanied by a prospectus
satisfying the requirements of Section 10(a) of the Act, an
Underwriter shall not convey or deliver any Written Communication
to any person in connection with the initial offering of any
Public Certificate, unless such Written Communication either (a)
is made in reliance on Rule 134 under the Act, (b) constitutes a
prospectus satisfying the requirements of Rule 430B under the Act
that has been prepared by the Depositor, (c) is the Final Free
Writing Prospectus or (d) is permitted by Section 2.3(a)(i), (ii)
or (iii), subject to compliance with Section 2.3(a)(iii), (iv) and
(v).
(vii) Each Underwriter that conveys ABS ICM or a Preliminary
Term Sheet that is not a Traditional Term Sheet delivered to the
Depositor in accordance with Section 2.3(a)(ii) hereby represents
that such ABS ICM or Preliminary Term Sheet does not contain
information that conflicts with the information contained in the
Registration Statement.
(b) The Depositor represents to and agrees with each
Underwriter as follows:
(A) The Depositor shall file any ABS ICM or
Preliminary Term Sheets delivered to its counsel as provided
in 2.3(a)(ii) above as and when required by the Rules and
Regulations.
(B) The Depositor shall not convey any free writing
prospectus or other issuer information other than the
Disclosure Package prior to the availability of the
Prospectus Supplement unless it shall have first delivered
it to the Underwriters for their review.
In conjunction with the preparation of the Prospectus Supplement for printing
and distribution, the Depositor and the Underwriters shall prepare a Free
Writing Prospectus which will consist of excerpts from the Prospectus
Supplement. The Depositor shall file such Free Writing Prospectus at the time
of filing of the Prospectus Supplement.
ARTICLE III.
INDEMNIFICATION
3.1. Indemnification by Xxxxxx, C-BASS, the Depositor and the
Underwriters.
(a) Xxxxxx shall indemnify and hold harmless the Depositor,
and each Underwriter, each of their respective directors, each of their
respective officers and each Person, if any, that controls the Depositor or an
Underwriter, as the case may be, within the meaning of either the 1933 Act or
the Exchange Act, against any and all losses, claims, damages or liabilities
to which the Depositor, an Underwriter or any such director, officer or
controlling Person may become subject, under the 1933 Act, the Exchange Act or
otherwise, to the extent that such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in the
Prospectus Supplement or the Disclosure Package or arise out of or are based
upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading, to the
extent that such untrue statement or alleged untrue statement or omission or
alleged omission relates to the Servicer Information. Xxxxxx shall in each
case reimburse the Depositor and each Underwriter, as the case may be, and
each such director, officer or controlling Person for any legal or other
expenses reasonably incurred by the Depositor, each such Underwriter, and each
such director, officer or controlling Person, in connection with investigating
or defending any such loss, claim, damage, liability or action. Litton's
liability under this Section 3.1 shall be in addition to any other liability
that Xxxxxx may otherwise have.
(b) C-BASS shall indemnify and hold harmless the Depositor
and each Underwriter, each of their respective directors, each of their
respective officers and each Person, if any, that controls the Depositor or an
Underwriter, as the case may be, within the meaning of either the 1933 Act or
the Exchange Act, against any and all losses, claims, damages or liabilities
to which the Depositor, an Underwriter or any such director, officer or
controlling Person may become subject, under the 1933 Act, the Exchange Act or
otherwise, to the extent that such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in the
Prospectus Supplement or any amendment or supplement thereto or the Disclosure
Package, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, to the extent that such
untrue statement or alleged untrue statement or omission or alleged omission
relates to Seller Information. C-BASS shall reimburse the Depositor and each
Underwriter, as the case may be, and each such director, officer or
controlling Person for any legal or other expenses reasonably incurred by the
Depositor, each such Underwriter, and each such director, officer or
controlling Person, in connection with investigating or defending any such
loss, claim, damage, liability or action. C-BASS's liability under this
Section 3.1 shall be in addition to any other liability that C-BASS may
otherwise have.
(c) Each Underwriter severally agrees to indemnify and hold
harmless Xxxxxx or C-BASS, their respective officers who signed the
Registration Statement or any amendment thereof, their directors, and each
person who controls Xxxxxx or C-BASS within the meaning of either the Act or
the Exchange Act against any and all losses, claims, damages or liabilities,
joint or several, to which they may become subject under the Act, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
(i) arise out of such Underwriter's failure to comply with Section 2.2(a)(i)
or (ii) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Bloomberg Submissions or in the
Collateral Strats included in Investor Materials conveyed by such Underwriter
prior to the applicable Contract of Sale; provided, however, that no
Underwriter shall be liable to any of the parties identified above in this
sentence to the extent that (x) any untrue statement or alleged untrue
statement of a material fact was made in reliance upon and in conformity with
the Seller Mortgage Loan Information or the Disclosure Package or (y) in the
case of a Bloomberg Submission, other than the Senior Structure or any
Collateral Strats contained therein, the Underwriter delivered a copy of such
Bloomberg Submission to Xxxxxx or C-BASS and its counsel at least one business
day prior to the anticipated first use and neither Xxxxxx or C-BASS nor its
counsel reasonably objected to any information contained therein. Each
Underwriter's liability under this Section 3.1 shall be in addition to any
other liability that each Underwriter may otherwise have.
(d) The Depositor shall indemnify and hold harmless C-BASS,
Litton, each of their directors, each of their officers and each Person, if
any, that controls C-BASS or Xxxxxx within the meaning of the 1933 Act or
Exchange Act, against any losses, claims, damages or liabilities to which
C-BASS, Litton, or any such director, officer or controlling Person may become
subject, under the 1933 Act, the Exchange Act or otherwise, to the extent that
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Prospectus Supplement,
Disclosure Package, the Private Placement Memorandum, any Investor Materials
or any amendment or supplement thereto, or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission does not relate to (i) Servicer
Information, (ii) Seller Information, or (iii) the Underwriter's Information,
and the Depositor shall reimburse C-BASS, Xxxxxx and each such director,
officer or controlling Person for any legal or other expenses reasonably
incurred by C-BASS, Xxxxxx and any such director, officer or controlling
Person in connection with investigating or defending any such loss, claim,
damage,
liability or action. The Depositor's liability under this Section 3.1 shall be
in addition to any liability that the Depositor may otherwise have.
(e) If the indemnification provided for in Section 3.1(a),
(b), (c) or (d) shall for any reason be unavailable to an indemnified party
thereunder, then the party which would otherwise be obligated to indemnify
with respect thereto, on the one hand, and the parties which would otherwise
be entitled to be indemnified, on the other, shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated
herein and incurred by the parties hereto in such proportions that are
appropriate to reflect the relative benefit to the Depositor, the applicable
Underwriter, Xxxxxx and C-BASS (taking into account the portion of the
proceeds of the offering realized by each) from the sale of the Mortgage Loans
to and from C-BASS and the issuance and sale of the Offered Certificates or,
if such allocation is not permitted by a court of competent jurisdiction, then
on a basis appropriate to also recognize the relative benefit, as described
above, and the relative fault of the Depositor, the applicable Underwriter,
C-BASS and Xxxxxx in connection with the applicable misstatements or omissions
as well as any other relevant equitable considerations, which may include the
Depositor's, Litton's, C-BASS's and the Underwriters' relative knowledge and
access to information concerning the matter with respect to which the claim
was asserted, the opportunity to correct and prevent any statement or
omission, and any other equitable considerations appropriate under the
circumstances. Notwithstanding the foregoing and except as provided in Section
3(f) below, no Underwriter shall be required to contribute any amount in
excess of the amount by which the underwriting discounts and commissions
received by such Underwriter with respect to the offering of the Undewritten
Certificates exceeds the amount of any damages that such Underwriter has
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 0000 Xxx) shall
be entitled to contribution from any Person that was not guilty of such
fraudulent misrepresentation. For purposes of this Section 3.1, each director
of a party to this Agreement and each Person, if any, that controls a party to
this Agreement within the meaning of Section 15 of the 1933 Act shall have the
same rights to contribution as such party. JPMorgan agrees that there are no
conditions precedent to the obligations of JPMorgan hereunder other than
written demand to the Depositor to perform its obligations under this
paragraph.
(f) JPMorgan agrees with C-BASS and Xxxxxx, for the sole and
exclusive benefit of C-BASS and Xxxxxx and each person who controls C-BASS or
Xxxxxx within the meaning of either the 1933 Act or the Exchange Act and not
for the benefit of any assignee thereof or any other person or persons dealing
with C-BASS or Xxxxxx, in consideration of and as an inducement to its
agreement to enter into the transactions contemplated herein, to indemnify and
hold harmless C-BASS and Xxxxxx against any failure by the Depositor to
perform its obligations to C-BASS or Xxxxxx pursuant to Section 3.1(d) hereof.
3.2. Notification; Procedural Matters.
Promptly after receipt by an indemnified party under Section 3.1 of
notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party (or if a
claim for contribution is to be made against another party) under Section 3.1
hereof, notify the indemnifying party (or other contributing party) in writing
of the commencement thereof; but the omission so to notify the indemnifying
party (or other contributing party) shall not relieve it from any liability it
may have to any indemnified party (or to the party requesting contribution),
unless, and only to the extent that, such indemnified party has actual notice
of such action and, such omission results in the forfeiture of substantive
rights or defenses of the indemnifying party; provided further, that the
failure to notify the indemnifying party shall not relieve the indemnifying
party from any liability which it may have to the indemnified party otherwise
under Section 3.1. In case any such action is brought against any indemnified
party and it notifies the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that, by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, the indemnifying
party elects to assume the defense thereof, it may participate (jointly with
any other indemnifying party similarly notified) with counsel satisfactory to
such indemnified party; provided, however, that if the defendants in any such
action include both the indemnified party and the indemnifying party and the
indemnified party or parties shall reasonably have concluded that there may be
legal defenses available to it or them and/or other indemnified parties that
are different from or additional to those available to the indemnifying party,
the indemnified party or parties shall have the right to select separate
counsel to assert such legal defenses and to otherwise participate in the
defense of such action on behalf of such indemnified party or parties. Upon
receipt of notice from the indemnifying party to such indemnified party of its
election so to assume the defense of such action and approval by the
indemnified party of such counsel, the indemnifying party shall not be liable
to such indemnified party under this paragraph for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof, unless (i) the indemnified party shall have employed separate counsel
(plus any local counsel) in connection with the assertion of legal defenses in
accordance with the proviso to the immediately preceding sentence, (ii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action or (iii) the indemnifying party
shall have authorized the employment of counsel for the indemnified party at
the expense of the indemnifying party. No party shall be liable for
contribution with respect to any action or claim settled without its consent,
which shall not be unreasonably withheld. In no event shall the indemnifying
parties be liable for the fees and expenses of more than one counsel (in
addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar
or related actions in the same jurisdiction arising out of the same general
allegations or circumstances.
ARTICLE IV.
GENERAL
4.1. Survival.
This Agreement and the obligations of the parties hereunder shall
survive the purchase and sale of the Offered Certificates.
4.2. Successors.
This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors and the officers, directors and
controlling Persons referred to in Article III hereof and their respective
successors and assigns, and no other Person shall have any right or obligation
hereunder.
4.3. Applicable Law.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York without giving effect to principles of
conflict of laws.
4.4. Miscellaneous.
Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated except by a writing signed by the party against which
enforcement of such change, waiver, discharge or termination is sought. This
Agreement may be signed in any number of counterparts, each of which shall be
deemed an original, which taken together shall constitute one and the same
instrument.
4.5. Notices.
All communications hereunder shall be in writing and shall be deemed
to have been duly given when delivered to (a) in the case of the Depositor,
Bond Securitization, L.L.C., 0 Xxxx Xxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000,
Attention: Xxxx Xxxxxx; (b) in the case of Credit-Based Asset Servicing and
Securitization LLC, 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Director - Mortgage Finance (telecopy number (000) 000-0000); (c)
in the case of Xxxxxx Loan Servicing LP, 0000 Xxxx Xxxxxxx Xxxxx, Xxxxxxx,
Xxxxx 00000, Attention: Xxxxxx XxXxxxx (telecopy number (000) 000-0000); and
(d) in the case of JPMorgan, X.X. Xxxxxx Securities Inc., 000 Xxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxx Xxx (telecopy number (212)
834-6671).
IN WITNESS WHEREOF, the parties have executed this Agreement by their
duly authorized officers as of the date first above written.
BOND SECURITIZATION, L.L.C.
By: /s/ Xxxxxx Xxx
-----------------------------------------
Name: Xxxxxx Xxx
Title: Vice President
XXXXXX LOAN SERVICING LP
By /s/ Xxxxxx XxXxxxx
------------------------------------------
Name: Xxxxxx XxXxxxx
Title: Senior Vice President
CREDIT-BASED ASSET SERVICING AND SERVICING LLC
By: /s/ Xxxxx X. Xxxx
-----------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
X.X. XXXXXX SECURITIES INC.
By: /s/ Xxxxxx Xxx
------------------------------------------
Name: Xxxxxx Xxx
Title: Vice President
DEUTSCHE BANK SECURITIES INC.
By: /s/ Xxxx X. Xxxxx
-----------------------------------------
Name: Xxxx X. Xxxxx
Title: Director
By: /s/ Xxxx Xxxx
-----------------------------------------
Name: Xxxx Xxxx
Title: Vice President
(Indemnification and Contribution Agreement)
SG AMERICAS SECURITIES, LLC
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Director
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
By: /s/ Xxx Xxxxxxx
-----------------------------------------
Name: Xxx Xxxxxxx
Title: Authorized Signatory
