INDYMAC HOME EQUITY MORTGAGE LOAN ASSET-BACKED TRUST,
SERIES 2006-H3
$496,786,000
INDYMAC HOME EQUITY MORTGAGE LOAN ASSET-BACKED NOTES,
SERIES 2006-H3
INDYMAC MBS, INC.
(DEPOSITOR)
INDYMAC BANK, F.S.B.
(SPONSOR/SELLER)
UNDERWRITING AGREEMENT
September 27, 2006
Xxxxxx Brothers Inc.
("Lehman") as an Underwriter
(an "Underwriter") named herein
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Bear, Xxxxxxx & Co. Inc.
("Bear") as an Underwriter
(an "Underwriter") named herein
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Credit Suisse Securities (USA) LLC
("Credit Suisse") as an Underwriter
(an "Underwriter") named herein
Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx, Xxxxx & Co.
("Goldman") as an Underwriter
(an "Underwriter") named herein
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
IndyMac Securities Corporation
("IndyMac") as an Underwriter
(an "Underwriter") named herein
000 X. Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
1. Introductory. IndyMac MBS, Inc., a Delaware corporation (the
"Depositor") proposes to sell approximately $496,786,000 principal amount of its
Class A IndyMac Home Equity Mortgage Loan Asset-Backed Notes, Series 2006-H3
(the "Notes") issued by IndyMac Home Equity Mortgage Loan Asset-Backed Trust,
Series 2006-H3 (the "Issuing Entity") to the Underwriters named in Schedule I
attached hereto pursuant to this underwriting agreement (the "Agreement"). The
assets of the Issuing Entity include, among other things, a pool of adjustable
rate home equity line of credit loans made or to be made in the future under
certain home equity revolving credit line loan agreements (the "HELOCs") secured
by first or junior lien deeds of trust or mortgages on properties that are
primarily one- to four-family residential properties to be delivered on the
Closing Date (as defined below) (the "Mortgage Loans") and all monies due under
the HELOCs after the close of business on September 14, 2006 (the "Cut-off
Date") (exclusive of payments in respect of accrued interest due on or prior to
the Cut-off Date) and property that secured a Mortgage Loan which has been
acquired by foreclosure or deed in lieu of foreclosure. In addition, the Notes
will have the benefit of an irrevocable and unconditional note guaranty
insurance policy (the "Policy") to be issued by XL Capital Assurance Inc. (the
"Insurer") pursuant to an Insurance and Indemnity Agreement, dated as of
September 29, 2006 (the "Insurance Agreement") among the Insurer, the Depositor,
IndyMac Bank, F.S.B. (the "Sponsor"), as seller and servicer, the Issuing Entity
and Deutsche Bank National Trust Company as indenture trustee (the "Indenture
Trustee").
The Issuing Entity will be formed pursuant to a Trust Agreement,
dated as of September 19, 2006 (the "Trust Agreement" and as amended and
restated on September 29, 2006, the "Amended and Restated Trust Agreement"),
among the Depositor, Wilmington Trust Company (the "Owner Trustee") and Deutsche
Bank National Trust Company, as administrator (the "Administrator") and the
Notes will be issued pursuant to an Indenture (the "Indenture"), dated as of
September 29, 2006, between the Issuing Entity and the Indenture Trustee. The
Mortgage Loans and certain other assets of the Issuing Entity will be sold by
the Sponsor to the Depositor pursuant to a separate Mortgage Loan Purchase
Agreement, dated as of September 29, 2006 (the "Purchase Agreement") between the
Depositor and the Sponsor, and by the Depositor to the Issuing Entity pursuant
to the Sale and Servicing Agreement, dated as of September 14, 2006 (the "Sale
and Servicing Agreement"), among the Issuing Entity, the Depositor, IndyMac
Bank, F.S.B., as seller and as servicer (the "Servicer") and the Indenture
Trustee. The Issuing Entity will be administered pursuant to the administration
agreement, dated as of September 29, 2006 (the "Administration Agreement"),
among the Issuing Entity, the Administrator, the Owner Trustee and the
Depositor. An indemnification agreement, dated as of September 29, 2006 (the
"Indemnification Agreement"), among Lehman, Bear, Credit Suisse, Goldman,
IndyMac, and the Insurer, will govern the liability of such parties with respect
to the
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losses resulting from material misstatements or omissions contained in the
Prospectus Supplement (as defined below).
This Agreement, the Insurance Agreement, the Trust Agreement, the
Amended and Restated Trust Agreement, the Indenture, the Purchase Agreement, the
Sale and Servicing Agreement, the Administration Agreement, the Indemnification
Agreement and the Policy are collectively referred to herein as the "Basic
Documents."
Capitalized terms used and not otherwise defined herein shall have
the meanings given them in the Sale and Servicing Agreement.
2. Representations and Warranties of the Depositor and the Sponsor.
(a) The Depositor represents and warrants to and agrees with
the Underwriters that:
(i) The Depositor has filed with the Securities and Exchange
Commission (the "Commission"), a registration statement (No. 333-132042) on Form
S-3 for the registration under the Securities Act of 1933, as amended (the
"Act"), in conformity with the rules and regulations (the "Rules and
Regulations") of the Commission, of Mortgage Pass-Through Certificates and
Mortgage Pass-Through Notes (issuable in series), which registration statement,
as amended at the date hereof, has become effective. Such registration
statement, as amended to the date of this Agreement, meets the requirements set
forth in Rule 415(a)(1)(vii) or (x) under the Act and complies in all other
material respects with such Rule. As used in this Underwriting Agreement,
"Effective Time" means the date and the time as of which the latter of (i) such
Registration Statement, or the most recent post effective amendment thereto, if
any, was declared effective by the Commission or (ii) the document most recently
filed with the Commission was incorporated into such Registration Statement;
"Effective Date" means the date of the Effective Time; "Registration Statement"
means such registration statement, at the Effective Time, including any
documents incorporated by reference therein at such time; and "Prospectus" means
the final prospectus, as first supplemented by a prospectus supplement dated
September 27, 2006 (the "Prospectus Supplement") relating to the Notes, as first
filed with the Commission pursuant to paragraph (1) or (4) or (5) of Rule 424(b)
of the Rules and Regulations; and "Pricing Free Writing Prospectus" means the
free writing prospectus relating to the Offered Notes dated September 25, 2006
that has been filed with the Commission pursuant to Rule 433 of the Rules and
Regulations. Reference made herein to the Prospectus shall be deemed to refer to
and include any documents incorporated by reference therein pursuant to Item 12
of Form S-3 under the Act, as of the date of the Prospectus and any reference to
any amendment or supplement to the Prospectus shall be deemed to refer to and
include any document filed under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), after the date of the Prospectus and incorporated by
reference in the Prospectus on or prior to the Closing Date; and any reference
to any amendment to the Registration Statement shall be deemed to include any
report filed with the Commission with respect to the Trust pursuant to Section
13(a) or 15(d) of the Exchange Act as of the Effective Time that is incorporated
by reference in the Registration Statement. As of the date hereof and at the
Closing Date, there are no contracts or documents of the Depositor which are
required to be filed as exhibits to the Registration Statement pursuant to the
Act or the Rules and Regulations on or prior to each such
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date which have not been so filed or incorporated by reference therein on or
prior to the effective date of the Registration Statement. The conditions for
use as of the Effective Time by the Depositor of the Registration Statement on
Form S-3 under the Act have been satisfied.
(ii) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will, when they become effective, are used or are filed with the
Commission, as the case may be, conform in all respects to the requirements of
the Act and the Rules and Regulations. The Pricing Free Writing Prospectus as of
the date hereof conforms in all respect to the requirements of the Act and the
Rules and Regulations. The Registration Statement, as of the Effective Date
thereof and as of the date of any amendment thereto, did not contain an 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. Each
Issuer Free Writing Prospectus (as defined herein), as of its date, did not
contain an 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. The Pricing Free Writing Prospectus (including any information
provided by the Sponsor as contemplated by Item 1105 of Regulation AB relating
to securitized pools ("Static Pool Data") referred to therein), as of its date
and as of the date of each Contract of Sale and as of the Closing Date, and the
Prospectus (including any Static Pool Data referred to therein), as of its date
and as amended or supplemented as of the Closing Date, do not and will not
contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that no
representation or warranty is made as to (i) any Derived Information (as defined
in Section 6(f) below) and (ii) the Underwriters' Information (as defined in
Section 8(a) below).
(iii) The Notes meet the requirements for the public offering
thereof to be registered on Form S-3 under the Act.
(iv) Since the respective dates as of which information is given in
the Prospectus, there has not been any material adverse change in the general
affairs, management, financial condition, or results of operations of the
Depositor, otherwise than as set forth or contemplated in the Prospectus as
supplemented or amended as of the Closing Date.
(v) The Depositor has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware, is
duly qualified to do business and is in good standing as a foreign corporation
in each jurisdiction in which its ownership or lease of property or the conduct
of its business requires such qualification and the failure to be so qualified
would have a material adverse effect on the financial condition or operations of
the Depositor, and has all power and authority necessary to own or hold its
properties, to conduct the business in which it is engaged and to enter into and
perform its obligations under the Basic Documents and to cause the Notes to be
issued.
(vi) Except as disclosed in the Pricing Free Writing Prospectus and
the Prospectus, there are no actions, proceedings or investigations pending
before or threatened by any court, administrative agency or other tribunal to
which the Depositor is a party or of which any of its properties is the subject
(a) which if determined adversely to the Depositor would have a material adverse
effect on the business or financial condition of the Depositor, (b) asserting
the
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invalidity of the Agreements or the Notes, (c) seeking to prevent the
issuance of the Notes or the consummation by the Depositor of any of the
transactions contemplated by any of the Basic Documents, or (d) which might
adversely affect the performance by the Depositor of its obligations under, or
the validity or enforceability of, any of the Basic Documents or the Notes.
(vii) This Agreement has been, and each other Basic Document to
which it is a party, when duly executed and delivered as contemplated hereby and
thereby will have been, duly authorized, executed and delivered by the
Depositor. The execution, delivery and performance of this Agreement and each of
the other Basic Documents to which it is a party and the issuance and sale of
the Notes and compliance with the terms and provisions hereof will not result in
a breach or violation of any of the terms and provisions of, or constitute a
default under, any agreement or instrument to which the Depositor is a party or
by which the Depositor is bound or to which any of the properties of the
Depositor is subject which could reasonably be expected to have a material
adverse effect on the transactions contemplated herein. The Depositor has full
corporate power and authority to (a) cause the Issuing Entity to authorize the
Indenture Trustee to execute and deliver the Notes to the Depositor and (b) sell
the Notes to the Underwriters, all as contemplated by this Agreement.
(viii) This Agreement constitutes, and each other Basic Document to
which it is a party, when executed and delivered as contemplated herein will
constitute legal, valid and binding instruments enforceable against the
Depositor in accordance with their respective terms, subject as to
enforceability to (x) applicable bankruptcy, reorganization, insolvency,
moratorium or other similar laws affecting creditors rights generally, (y)
general principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law) and (z) with respect to rights of indemnity
under this Agreement, limitations of public policy under applicable securities
laws.
(ix) Neither the Depositor nor the trust created by the Trust
Agreement is an "investment company" within the meaning of such term under the
Investment Company Act of 1940 (the "1940 Act") and the rules and regulations of
the Commission thereunder.
(x) The Notes, when duly and validly authorized by the Depositor and
when executed and authenticated as specified in the Indenture and delivered and
paid for pursuant hereto, will be validly issued and outstanding and will be
entitled to the benefits of the Indenture.
(xi) At the time of execution and delivery of the Indenture, the
Mortgage Loans and related property will have been duly and validly assigned to
the Indenture Trustee in accordance with the Basic Documents; and when such
assignment is effected, a duly and validly perfected transfer of all such
Mortgage Loans will have occurred, subject to no prior lien, mortgage, security
interest, pledge, charge or other encumbrance created by the Depositor or the
Sponsor.
(xii) Neither the transfer of the Mortgage Loans and other Issuing
Entity assets conveyed by it to the Issuing Entity pursuant to the Sale and
Servicing Agreement from the Depositor to the Issuing Entity, nor the issuance,
sale and delivery of the Notes, nor the fulfillment of the terms of the Notes,
will (A) conflict with, or result in a breach, violation or acceleration of, or
constitute a default under, any term or provision of the Certificate of
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Incorporation or the By-Laws of the Depositor, (B) conflict with or result in a
material breach or material violation of any indenture or other agreement or
instrument to which the Depositor is a party or by which it or its properties is
bound or (C) result in a violation of or contravene the terms of any statute,
order or regulation applicable to the Depositor of any court, regulatory body,
administrative agency, governmental body or arbitrator having jurisdiction over
the Depositor or will result in the creation of any lien upon any material
property or assets of the Depositor.
(xiii) Any taxes, fees and other governmental charges in connection
with the execution, delivery and performance by the Depositor of the Basic
Documents to which it is a party and the execution, delivery and sale of the
Notes shall have been paid or will be paid by or on behalf of the Depositor at
or prior to the Closing Date to the extent then due.
(xiv) At the Closing Date, the Notes and the Basic Documents will
conform in all material respects to the descriptions thereof contained in the
Pricing Free Writing Prospectus and the Prospectus.
(xv) As of the date hereof, the Sponsor is not an "ineligible
issuer" as defined in Rule 405 of the Rules and Regulations.
(xvi) The initial effective date of the Registration Statement was
within three years of the Closing Date. If the third anniversary of the initial
effective date occurs during the time the Underwriters are offering securities
which have not been sold since the Closing Date, the Sponsor will take such
actions as may be necessary or appropriate to permit the public offering and
sale of the securities as contemplated hereunder.
(b) The Sponsor represents and warrants to and agrees with the
Underwriters that:
(i) Since the respective dates as of which information is given in
the Pricing Free Writing Prospectus and the Prospectus, there has not been any
material adverse change in the general affairs, management, financial condition,
or results of operations of the Sponsor, otherwise than as set forth or
contemplated in the Pricing Free Writing Prospectus and the Prospectus as
supplemented or amended as of the Closing Date.
(ii) This Agreement constitutes, and each other Basic Document to
which it is a party, when executed and delivered as contemplated herein will
constitute legal, valid and binding instruments enforceable against the Sponsor
in accordance with their respective terms, subject as to enforceability to (x)
applicable bankruptcy, reorganization, insolvency, moratorium or other similar
laws affecting creditors rights generally or the rights of creditors of
institutions, the deposits of which are insured by the Federal Deposit Insurance
Corporation ("FDIC"), (y) general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law) and (z) with respect
to rights of indemnity under this Agreement, limitations of public policy under
applicable securities laws.
(iii) At the time of execution and delivery of the Purchase
Agreement, the representations of the Sponsor therein are true and correct in
all material respects on and as of
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the date made or as of any other date provided therein; provided that the
remedies available to you for any breach of the representations and warranties
set forth in Section 3.01 of the Purchase Agreement shall be limited to the
remedies set forth in that Section.
3. Purchase, Sale and Delivery of the Notes. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Depositor agrees to sell to the
Underwriters, and each of the Underwriters agree, severally and not jointly, to
purchase from the Depositor, the entire principal amount of the Notes set forth
opposite the name of such Underwriter in Schedule I hereto at the purchase price
set forth in Schedule I, plus any additional original principal amount of Notes
which such Underwriter may be obligated to purchase pursuant to Section 10
hereof.
The Depositor will deliver the Notes to the Underwriters, against
payment of the purchase price to or upon the order of the Depositor by wire
transfer or check in Federal (same day) Funds, at the offices of Xxxxx, Brown,
Xxxx & Maw LLP, 0000 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-5820 at
10:00 a.m., New York time on September 29, 2006, or at such other time not later
than seven full business days thereafter as each of the Underwriters and the
Depositor determine, such time being herein referred to as the "Closing Date".
The Notes to be so delivered will be initially represented by one or more Notes
registered in the name of Cede & Co., the nominee of The Depository Trust
Company ("DTC"). The interests of beneficial owners of the Notes will be
represented by book entries on the records of DTC and participating members
thereof. Definitive Notes will be available only under the limited circumstances
specified in the Indenture.
4. Offering by the Underwriters. It is understood that the
Underwriters propose to offer the Notes for sale to the public (which may
include selected dealers), on the terms set forth in the Prospectus and that the
Underwriters will not offer, sell or otherwise distribute such Notes (except for
the sale thereof in exempt transactions) in any state in which such Notes are
not exempt from registration under "blue sky" or state securities laws (except
where such Notes will have been qualified for offering and sale at the
Underwriter's direction under such "blue sky" or state securities laws).
5. Covenants of the Depositor. The Depositor covenants and agrees
with the several Underwriters that:
(a) The Depositor will file the Prospectus, properly
completed, with the Commission pursuant to and in accordance with Rule
424(b) not later than the time required thereby. The Depositor shall
advise each of the Underwriters promptly of any such filing pursuant to
Rule 424(b), and will make no further amendment or any supplement to the
Registration Statement or to the Prospectus prior to the Closing Date
except as permitted herein.
(b) The Depositor will furnish promptly to each of the
Underwriters and to counsel for the Underwriters a signed copy of the
Registration Statement as filed with the Commission, including all
consents and exhibits filed therewith.
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(c) The Depositor shall advise each of the Underwriters
promptly of any proposal to amend or supplement the Registration Statement
as filed or the Prospectus within 30 days of the date of this Agreement or
the earlier termination of the offering and will not effect such amendment
or supplementation (other than and amendment or supplement specifically
relating to one or more series of asset-backed securities other than the
series that includes the Notes) unless (i) the Depositor has given
reasonable notice to the Underwriters of its intention to file such
amendment or supplement, (ii) the Depositor has furnished the Underwriters
with a copy for their review within a reasonable time prior to filing, and
(iii) the Underwriters do not reasonably object to the filing of such
amendment or supplement; and the Depositor will also advise each of the
Underwriters promptly of (x) the effectiveness of the Registration
Statement (if the effective date thereof is subsequent to the execution of
this Agreement) and of any amendment or supplement to the Registration
Statement that occurs within 30 days of this Agreement or (y) the filing
of any supplement to the Prospectus or of any amended Prospectus and in
each case to furnish each of the Underwriters with copies thereof within
30 days or earlier termination of offering; the Sponsor will advise each
of the Underwriters upon its receipt of notice thereof of the issuance by
the Commission of any stop order with respect to the Prospectus or: (i)
any order preventing or suspending the use of the Prospectus; (ii) the
suspension of the qualification of the Notes for offering or sale in any
jurisdiction; and (iii) the initiation of or threat of any proceeding for
any such purpose. In the event of the issuance of any stop order or of any
order preventing or suspending the use of the Prospectus or suspending any
such qualification, the Depositor promptly shall use its best efforts to
obtain the withdrawal of such an order by the Commission.
(d) If, at any time when a Prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then amended or supplemented would contain an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend or supplement the Prospectus to comply with
the Act, the TIA or the rules thereunder, the Depositor promptly shall
prepare and file with the Commission, subject to paragraph (c) of this
Section, an amendment or supplement which will correct such statement or
omission, or an amendment or supplement which will effect such compliance.
(e) The Depositor shall timely prepare and file, with the
Commission, on behalf of the Issuing Entity, all periodic reports required
to be filed pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange
Act subsequent to the date of the Prospectus and, for so long as the
delivery of a prospectus is required in connection with the offering or
sale of the Notes.
(f) The Depositor will use its reasonable efforts, in
cooperation with the Underwriters, to arrange for the qualification of the
Notes for sale under the laws of such jurisdictions as the Underwriters
designate and will continue such qualifications in effect so long as
required for the distribution to be fully completed; provided, however,
that the Depositor shall not be required to qualify to do business in any
jurisdiction where it is not qualified on the date of this Agreement or to
take any action which would subject it to general or unlimited service of
process or corporate or franchise taxation as a foreign
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corporation in any jurisdiction in which it is not, on the date of this
Agreement, subject to such service or process or such taxation.
(g) For a period from the date of this Agreement until the
retirement of the Notes, or until such time as the Underwriters shall
cease to maintain a secondary market in the Notes, whichever occurs first,
the Depositor shall deliver to each of the Underwriters, as soon as such
statements are furnished to the Indenture Trustee, the annual statements
of compliance and the annual independent certified public accountants'
reports furnished to the Indenture Trustee pursuant to the Sale and
Servicing Agreement, as soon as such statements and reports are furnished
to the Indenture Trustee and the Monthly Statement to the Noteholders
pursuant to the Sale and Servicing Agreement.
(h) So long as any of the Notes are outstanding, the Depositor
shall furnish to each of the Underwriters (i) as soon as practicable after
the end of the fiscal year all documents required to be distributed to
Noteholders or filed with the Commission on behalf of the Issuing Entity
pursuant to the Exchange Act, or any order of the Commission thereunder
and (ii) from time to time, any other information concerning the Depositor
as the Underwriters may reasonably request only insofar as such
information reasonably relates to the transactions contemplated by the
Basic Documents, and which may be furnished by the Depositor or the
Servicer without any undue expense and without violation of applicable
law.
(i) To the extent, if any, that any of the ratings provided
with respect to the Notes by the rating agency or agencies that initially
rate the Notes are conditional upon the furnishing of documents or the
taking of any other actions by the Depositor, the Depositor shall use its
best efforts to cause such documents to be furnished and such actions to
be taken.
(j) The Depositor shall apply the net proceeds of the sale of
the Notes that it receives in the manner set forth in the Prospectus under
the caption "Use of Proceeds."
(k) As between the Depositor and the Underwriters, the
Depositor shall pay or cause to be paid all costs and expenses incident to
the performance of its obligations under this Agreement, including but not
limited to (i) the printing and filing of the Registration Statement and
Prospectus and the printing of the Basic Documents, but not any expenses
associated with the delivery of such documents, (ii) the preparation,
issuance and delivery of the Notes to the Underwriters, (iii) the fees and
disbursements of the Depositor's counsel and accountants, (iv) the
qualification of the Notes under securities laws in accordance with the
provisions of Section 5(h), including filing fees and the fees and
disbursements of counsel for the Underwriters in connection therewith and
in connection with the preparation of any blue sky or legal investment
survey, if any is requested, (v) the printing and delivery to the
Underwriters of copies of any blue sky or legal investment survey prepared
in connection with the Notes, (vi) any fees charged by rating agencies for
the rating of the Notes, (vii) the fees and expenses of the Insurer and
its counsel, (viii) any fees and expenses of the Indenture Trustee or the
Indenture Trustee's counsel and the Owner Trustee and the Owner Trustee's
counsel incurred in connection with the transactions described herein and
(ix) any fees and expenses associated with the registering the Notes with
DTC, Clearstream Banking, societe anonyme or the Euroclear System.
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(l) On or prior to the date of issuance of the Notes, the
Depositor will obtain the Policy issued by the Insurer for the benefit of
the holders of the Notes.
(m) The Depositor will file with the Commission, in accordance
with the Rules and Regulations, tabular information concerning the
Mortgage Loans to the extent that the information set forth in the
Prospectus relates to a statistical cut-off date pool of mortgage loans
and also to file with the Commission, in accordance with the Rules and
Regulations, all ABS Informational and Computational Materials and Issuer
Free Writing Prospectuses (as each is defined in Section 6 hereof)
required to be filed within the applicable time periods allotted for such
filing pursuant to the Rules and Regulations.
(n) In connection with any ABS Informational and Computational
Materials and Issuer Free Writing Prospectuses, the Sponsor will receive a
letter from Deloitte & Touche LLP certified public accountants,
satisfactory in form and substance to the Sponsor, to the effect that such
accountants have performed certain specified procedures, all of which have
been agreed to by the Sponsor, as a result of which they have determined
that the information included in the ABS Informational and Computational
Materials and Issuer Free Writing Prospectuses (if any), is accurate
except as to such matters that are not deemed by the Sponsor to be
material. The foregoing letter shall be obtained at the expense of the
Sponsor.
(o) The Depositor shall not be required to file (1) any Issuer
Free Writing Prospectus, if the information included therein is included
or incorporated by reference in a prospectus or Issuer Free Writing
Prospectus previously filed with the Commission that relates to the
offering of the Notes or (2) any Issuer Free Writing Prospectus or portion
thereof that contains a description of the Notes or the offering of the
Notes which does not reflect the final terms thereof.
(p) In connection with the Pricing Free Writing Prospectus
(including any Static Pool Data referred to therein that relates to
information after December 31, 2005 ("Post December 31, 2005 Static Pool
Data")), the Underwriters shall have received, and in connection with the
Prospectus (including any post December 31, 2005 Static Pool Data), will
receive, a letter from Deloitte & Touche LLP certified public accountants,
satisfactory in form and substance to the Underwriters, to the effect that
such accountants have performed certain specified procedures, all of which
have been agreed to by the Underwriters, as a result of which they have
determined that the information included in the Pricing Free Writing
Prospectus and the Prospectus, is accurate except as to such matters that
are not deemed by the Underwriter to be material. The foregoing letter
shall be obtained at the expense of the Underwriters.
6. Investor Information. Each Underwriter represents and agrees with
the Sponsor that not less than 24 hours prior (or such shorter time as may be
agreed upon between such Underwriter and the Sponsor) to entering into any
"contract of sale" as defined in Rule 159 of the Act (each a "Contract of
Sale"), the Underwriter has conveyed the Pricing Free Writing Prospectus to each
prospective investor. Each Underwriter shall keep sufficient records to document
its conveyance of the Pricing Free Writing Prospectus to each potential investor
prior to the related Contract of Sale and shall maintain such records as
required by the Rules and
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Regulations. An Underwriter may prepare and have provided, and with respect to
(ii) below, the Sponsor may prepare and have provided, to prospective investors
in connection with its offering of the Notes (i) "ABS informational and
computational materials" as defined in Item 1101(a) of Regulation AB promulgated
by the Commission, which may include both an Issuer Free Writing Prospectus and
Derived Information (collectively, "ABS Informational and Computational
Materials"), (ii) any "free writing prospectus" within the meaning of Rule 405
under the Act that describes the Notes and/or the Mortgage Loans and contains
information described in the definition of "ABS informational and computational
materials" in Item 1101(a) of Regulation AB but which does not include
information described in paragraph (5) of such definition and does not include
Derived Information (each, an "Issuer Free Writing Prospectus") or (iii) any
"free writing prospectus" within the meaning of Rule 405 under the Act that
includes only the information described in paragraph (5) of the definition of
"ABS informational and computational materials" in Item 1101(a) of Regulation AB
(each, an "Underwriter Free Writing Prospectus," and any ABS Informational and
Computational Material, Issuer Free Writing Prospectus and Underwriter Free
Writing Prospectus shall be referred to herein as a "Free Writing Prospectus"),
subject to the following conditions:
(a) An Underwriter may furnish ABS Informational and
Computational Materials or an Issuer Free Writing Prospectus to a
potential investor prior to entering into a Contract of Sale with such
investor; provided, however, that (x) such Underwriter shall not enter
into a Contract of Sale with such investor unless the Underwriter has
conveyed the Pricing Free Writing Prospectus to such potential investor
not less than 24 hours prior (or such shorter time as may be agreed upon
between such Underwriter and the Sponsor) to such Contract of Sale and (y)
such Underwriter shall deliver a copy of the proposed ABS Informational
and Computational Materials or Issuer Free Writing Prospectus, not
otherwise provided by the Sponsor, to the Sponsor and its counsel at least
24 hours prior to the anticipated first use.
Unless preceded or accompanied by a prospectus satisfying the
requirements of Section 10(a) of the Act, an Underwriter shall not convey any
written communication to any person in connection with the initial offering of
the Notes, unless such written communication (1) is made in reliance on Rule 134
under the Act, (2) constitutes a prospectus satisfying the requirements of Rule
430B under the Act or (3) is an Issuer Free Writing Prospectus, an Underwriter
Free Writing Prospectus or ABS Informational and Computational Materials.
If an Underwriter does not furnish ABS Informational and
Computational Materials or an Issuer Free Writing Prospectus to the Sponsor's
counsel prior to the scheduled print date of the Prospectus Supplement, such
Underwriter will be deemed to have represented that it did not convey any ABS
Informational and Computational Materials or Issuer Free Writing Prospectus to
any potential investor.
(b) An Underwriter may furnish an Underwriter Free Writing
Prospectus to (x) a potential investor not less than 24 hours prior (or
such shorter time as may be agreed upon between such Underwriter and the
Sponsor) 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 such Underwriter has conveyed the Pricing Free
Writing Prospectus to such potential investor not less than 24 hours prior
(or such shorter time as may
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be agreed upon between such Underwriter and the Sponsor) to such Contract
of Sale and (y) to an investor after a Contract of Sale; provided, that
such Underwriter has conveyed the Pricing Free Writing Prospectus to such
investor not less than 24 hours (or such shorter time as may be agreed
between such Underwriter and the Sponsor) prior to such Contract of Sale.
Each Underwriter agrees that it shall not broadly disseminate any
Underwriter Free Writing Prospectus.
(c) The Underwriters shall provide to the Sponsor any ABS
Informational and Computational Materials, not otherwise provided by the
Sponsor, which are provided to investors, together, in the case of any ABS
Informational and Computational Materials, with a letter, reasonably
acceptable to the Underwriters and the Sponsor, from Deloitte & Touche LLP
with regard to such ABS Informational and Computational Materials, no
later than the two Business Days following the date such ABS Informational
and Computational Materials are conveyed. The Underwriters may provide
copies of the foregoing in a consolidated or aggregated form including all
information required to be filed. The materials so furnished shall be
furnished to the Sponsor in hard copy and on computer disk.
(d) In the event that any Underwriter or the Sponsor becomes
aware that, as of the time of the Contract of Sale, any Free Writing
Prospectus delivered to a purchaser of a Note contained any untrue
statement of a material fact or omitted to state a material fact necessary
in order to make the statements contained therein, in the light of the
circumstances under which they were made, not misleading (such Free
Writing Prospectus, a "Defective Free Writing Prospectus"), such
Underwriter or the Sponsor, as applicable, shall notify the other parties
to this Agreement thereof within one business day after discovery. If the
untrue statement or omission from the Defective Free Writing Prospectus
was not contained in or omitted from any Derived Information in such
Defective Free Writing Prospectus and if any Underwriter shall incur any
costs in connection with the reformation or termination of the Contract of
Sale, the Sponsor agrees to reimburse such Underwriter for such costs
promptly. Each Underwriter agrees to use reasonable efforts to mitigate
such costs.
(i) If such Defective Free Writing Prospectus is an Issuer
Free Writing Prospectus, the Sponsor shall prepare an Issuer Free Writing
Prospectus with corrective information that corrects the material misstatement
in or omission from such Defective Free Writing Prospectus, and if such
Defective Free Writing Prospectus is an Underwriter Free Writing Prospectus, the
Underwriter shall prepare an Underwriter Free Writing Prospectus with corrective
information that corrects the material misstatement in or omission from such
Defective Free Writing Prospectus (each such corrected Free Writing Prospectus,
a "Corrected Free Writing Prospectus");
(ii) The Underwriters shall deliver the Corrected Free Writing
Prospectus to each purchaser of a Note which received the Defective Free Writing
Prospectus prior to entering into an agreement to purchase any Offered Notes and
the terms of which have been revised in the Corrected Free Writing Prospectus;
(iii) The Underwriters shall notify such purchaser in a prominent
fashion that the prior agreement to purchase Notes has been terminated, and of
such purchaser's rights as a result of termination of such agreement; and
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(iv) The Underwriters shall provide such purchaser with an
opportunity to affirmatively agree to purchase such Notes on the terms described
in the Corrected Free Writing Prospectus.
(e) All Issuer Free Writing Prospectuses and Underwriter Free
Writing Prospectuses shall contain legends similar to the following
legends in all material respects and may contain additional legends as
permitted by law:
(i) The depositor has filed a registration statement (including a
prospectus) with the SEC for the offering to which this free writing prospectus
relates. Before you invest, you should read the base prospectus in that
registration statement and other documents the depositor has filed with the SEC
for more complete information about the depositor and this offering. You may get
these documents for free by visiting XXXXX on the SEC website at xxx.xxx.xxx.
Alternatively, the depositor, any underwriter or any dealer participating in the
offering will arrange to send you the prospectus if you request it by calling
toll-free 0-000-000-0000.
(ii) This free writing prospectus is not required to contain all
information that is required to be included in the base prospectus and the
prospectus supplement.
(iii) The information in this free writing prospectus is preliminary
and is subject to completion or change.
(iv) The information in this free writing prospectus, if conveyed
prior to the time of your commitment to purchase, supersedes information
contained in any prior similar free writing prospectus relating to these
securities.
(v) This free writing prospectus is not an offer to sell or a
solicitation of an offer to buy these securities in any state where such offer,
solicitation or sale is not permitted.
All Underwriter Free Writing Prospectuses, in addition to those
specified in clauses (1) through (5) above, contain legends similar to the
following legends in all material respects and may contain additional legends as
permitted by law:
(vi) Neither the depositor 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 depositor or its affiliates.
(vii) 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.
(viii) 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.
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(f) (i) The Underwriters furnishing such ABS Informational and
Computational Materials represent to the Sponsor and the Depositor that
the Derived Information included in the ABS Informational and
Computational Materials or Underwriter Free Writing Prospectus of such
Underwriter does not contain an untrue statement of a material fact or,
when read in conjunction with the Pricing Free Writing Prospectus as an
integral document, do not omit to state a material fact necessary to make
such statements, in light of the circumstances under which they were made,
not misleading; provided, however, that no representation is made (x) with
respect to any untrue statements or omissions that are (A) the result of
untrue statements or omissions in the Sponsor-Provided Information (as
defined in Section 6(f)(ii)) or (B) also set forth in or omitted from the
Pricing Free Writing Prospectus or (y) that the Pricing Free Writing
Prospectus or Prospectus (exclusive of such ABS Informational and
Computational Materials) does not include any untrue statements of a
material fact and does not omit to state any material facts necessary to
make the statements contained therein, in light of the circumstances under
which they were made, not misleading (except with respect to the
Underwriters' Information defined in Section 8(a) below). No Underwriter
has delivered any ABS Informational or Computational Materials or
Underwriter Free Writing Prospectuses incorporating Derived Information
simultaneously with the Pricing Free Writing Prospectus.
(ii) For purposes of this Underwriting Agreement, the term "Derived
Information" means the information specified in paragraph (5) of the definition
of "ABS informational and computational materials" in Item 1101(a) of Regulation
AB, which information (i) is not contained in the Prospectus or the Pricing Free
Writing Prospectus without taking into account such Derived Information to the
extent incorporated therein by reference and (ii) does not constitute
Sponsor-Provided Information. "Sponsor-Provided Information" means any computer
tape (or other information) furnished to any Underwriter by or on behalf of the
Sponsor concerning the assets of the Trust.
7. Conditions to the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Notes will
be subject to the accuracy, as of the date hereof and as of the Closing Date, of
the representations and warranties contained or incorporated herein, to the
accuracy of the written statements of officers of the Depositor and the Sponsor
made pursuant to the provisions of this Section 7, to the performance by each of
the Depositor of its obligations hereunder and to the following additional
conditions precedent:
(a) The Prospectus and any supplements thereto shall have been
filed with the Commission in accordance with the Rules and Regulations and
Section 5(a) hereof. Prior to the Closing Date, no stop order suspending
the effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted or, to the
knowledge of the Depositor or the Underwriters, shall be contemplated by
the Commission. Any request of the Commission for inclusion of additional
information in the Registration Statement or the Prospectus shall have
been complied with.
(b) The Underwriters shall have received a letter, on or prior
to the date of this Agreement, of Deloitte & Touche LLP with respect to
certain agreed-upon procedures, confirming that such accountants are
independent public accountants within the meaning, of the Act and the
Rules and Regulations, and substantially in the form of the draft to which
the
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Underwriters have previously agreed and otherwise in form and substance
reasonably satisfactory to each of the Underwriters and counsel for the
Underwriters.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any suspension or limitation
of trading in securities generally on the New York Stock Exchange, or any
setting of minimum prices for trading on such exchange; (ii) any banking
moratorium declared by Federal or New York authorities; or (iii) any
outbreak or escalation of major hostilities in which the United States is
involved, any declaration of war by Congress, or (iv) any other material
adverse change in general economic, political or financial conditions (or
the effect of international conditions on the financial markets of the
United States) such as to make it, in the reasonable judgment of a
majority in interest of the Underwriters, it impractical or inadvisable to
proceed with completion of the sale of, and payment for, the Notes on the
terms and in the manner contemplated by the Prospectus.
(d) The Underwriters shall have received an opinion of Xxxxxx
X. Xxxxxxxxx, internal counsel to the Depositor, the Sponsor and the
Servicer, dated the Closing Date, satisfactory in form and substance to
the Underwriters and counsel for the Underwriters, to the effect that:
(i) IndyMac Bank, F.S.B. has been duly organized and is validly
existing as a federal savings bank in good standing under the federal laws of
the United States of America.
(ii) The Depositor has been duly organized and is validly existing
as a Delaware corporation in good standing under the laws of the State of
Delaware and is duly qualified to do business in, and is in good standing as a
foreign corporation under the laws of the State of California.
(iii) The Basic Documents to which each of the Sponsor, the Servicer
and the Depositor (collectively, the "IndyMac Entities") is a party have been
duly authorized, executed and delivered by each such IndyMac Entity.
(iv) No consent, approval, authorization or order of any federal
court or governmental agency or body is required for the execution, delivery or
performance by any of the IndyMac Entities of the Basic Documents to which any
such IndyMac Entity is a party, except for those consents, approvals,
authorizations or orders which previously have been obtained. Such counsel may
assume for the purposes of such expressed opinion that any recordations of the
assignments of the Mortgage Loans evidenced by the Notes to the Indenture
Trustee under the Sale and Servicing Agreement (to the extent such recordations
are required pursuant thereto) do not constitute a consent, order, authorization
or approval.
(v) The execution, delivery and performance by each of the IndyMac
Entities of its obligations under the Basic Documents to which each such IndyMac
Entity is a party does not conflict with or result in a breach or violation of
any material term or provision of, or constitute a default under (a) the
Charter, Bylaws or the Certificate of Incorporation of each such IndyMac Entity,
as applicable, or (b) to the best of such counsel's knowledge, (i) any indenture
or other agreement or instrument to which each such IndyMac Entity is a party or
by which it is
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bound, (ii) any federal statute or regulation applicable to any such IndyMac
Entity or (iii) any written order of any federal court, regulatory body,
administrative agency or governmental body having jurisdiction over any such
IndyMac Entity, except in any such case where the breach, violation or default
would not have a material adverse effect on such IndyMac Entity or its ability
to perform is obligations under the Basic Documents to which it is a party.
(vi) There are no legal or governmental actions, investigations or
proceedings pending, or, to the best of such counsel's knowledge, threatened
against any of the IndyMac Entities (a) asserting the invalidity of the Basic
Documents or (b) which would be likely to impair materially the ability of any
such IndyMac Entity to perform its obligations under the Basic Documents to
which it is a party. For the purpose of the foregoing, (i) such counsel may not
regard any legal or governmental actions, investigations or proceedings to be
"pending" unless the legal department of the IndyMac Entities has received
notice of such actions, investigations or proceedings and (ii) such counsel may
not regard any legal or governmental actions, investigations or proceedings to
be "threatened" unless the potential litigant or governmental authority has
manifested to the legal department of the IndyMac Entities a present intention
to initiate such proceedings. Such opinion may not address loan-level legal or
governmental actions, investigations or proceedings.
Such opinion may contain such assumptions, qualifications and limitations
as are customary in opinions of this type and are reasonably acceptable to
counsel to the Underwriters. In rendering such opinion, such counsel may state
that they are admitted to practice only in the State of California and that they
are not admitted to the Bar in any other State, that they express no opinion as
to the laws of any Jurisdiction other than the federal law of the United States
of America, the State of California and the General Corporate Law of the State
of Delaware.
(e) The Underwriters shall have received the opinion or
opinions of Xxxxx, Xxxxx, Xxxx & Xxx LLP, special counsel to the
Depositor, the Sponsor and the Servicer, dated the Closing Date,
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters, substantially to the effect that:
(i) When the Notes have been duly executed, delivered and
authenticated in accordance with the Indenture and delivered and paid for
pursuant to this Agreement, the Notes will be validly issued, outstanding and
entitled to the benefits of the Indenture, subject as to enforceability to the
effects of applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium and similar laws now or hereafter in effect relating to
creditors' rights generally and subject to general principles of equity (whether
in a proceeding at law or in equity).
(ii) The Basic Documents to which each IndyMac Entity is a party are
the legal, valid, and binding obligations of such IndyMac Entities, enforceable
against such IndyMac Entities in accordance with their respective terms, subject
as to enforceability to the effects of applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium and similar laws now or
hereafter in effect relating to creditors' rights generally and subject to
general principles of equity (whether applied in a proceeding at law or in
equity).
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(iii) The Depositor is not, and will not as a result of the offer
and sale of the Notes as contemplated in the Prospectus and the Underwriting
Agreement become, an "investment company" as defined in the 1940 Act or a
company "controlled by" an "investment company" within the meaning of the 1940
Act.
(iv) The Indenture has been duly qualified under the Trust Indenture
Act and the Issuing Entity is not required to register under the 1940 Act.
(v) The transfer of the Mortgage Loans, the other property described
in Section 2.01 of the Purchase Agreement, and the proceeds thereof by the
Sponsor to the Depositor pursuant to the Purchase Agreement constitutes either a
sale or the grant of a security interest in such property in favor of the
Depositor. Such security interest is perfected in such of such property in which
a security interest can be perfected by the filing of a financing statement
under the California UCC. Such security interest in the Mortgage Notes is
perfected.
(vi) The transfer of the Mortgage Loans, the other property
described in Section 2.01 of the Sale and Servicing Agreement, and the proceeds
thereof by the Depositor to the Issuer pursuant to the Sale and Servicing
Agreement constitutes either a grant of a security interest in such property in
favor of the Issuer. Such security interest is perfected in such of such
property in which a security interest can be perfected by the filing of a
financing statement under the Delaware UCC. Such security interest in the
Mortgage Notes is perfected.
(vii) The Indenture creates in favor of the Indenture Trustee a
security interest in the Collateral as defined in the Indenture. Such security
interest is perfected in such of the Collateral in which a security interest can
be perfected by the filing of a financing statement under the Delaware UCC. Such
security interest in the Mortgage Notes is perfected.
(viii) The statements in the Prospectus under the headings
"Summary--Tax Status," "Certain Federal Income Tax Considerations," "State Tax
Considerations" and "ERISA Considerations", to the extent that they constitute
statements of matters of federal law or legal conclusions with respect thereto,
have been reviewed by such counsel and are correct in all material respects with
respect to those consequences or aspects that are discussed.
(ix) Such counsel shall state that they have participated in the
preparation of the Registration Statement and no facts have come to their
attention which may cause them to believe that the Registration Statement
(excluding any Exhibit thereto), as of the effective date thereof, contained any
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading or that the Prospectus, as of its date or the Closing
Date, contains any untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided that such
counsel need not express any view with respect to the financial, statistical or
computational material included in the Registration Statement or the Prospectus.
(x) The Registration Statement and any amendments thereto have
become effective under the 1933 Act; to the best of such counsel's knowledge, no
stop order suspending the effectiveness of the Registration Statement has been
issued and not withdrawn and no
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proceedings for that purpose have been instituted or threatened and not
terminated; and the Registration Statement, the Prospectus and each amendment or
supplement thereto, as of their respective effective or issue dates (other than
the information relating to the Insurer and the financial and statistical
information contained or incorporated therein, as to which such counsel need
express no opinion), complied as to form in all material respects with the
applicable requirements of the Act and the rules and regulations thereunder.
(xi) The Notes will, when issued, conform in all material respects
to the description thereof contained in the Prospectus.
Such opinion may contain such assumptions, qualifications and
limitations as are customary in opinions of this type and are reasonably
acceptable to counsel to the Underwriters. In rendering such opinion, such
counsel may state that they are admitted to practice only in the State of New
York and that they are not admitted to the Bar in any other State, that they
express no opinion as to the laws of any Jurisdiction other than the federal law
of the United States of America, the General Corporate Law of the State of
Delaware and the laws of the State of New York.
(f) The Underwriters shall have received opinions of Xxxxxxxx,
Xxxxxx & Xxxxxx, P.A., special Delaware counsel to the Issuing Entity,
dated the Closing Date, satisfactory in form and substance to the
Underwriters and counsel for the Underwriters, to the effect that:
(i) The Issuing Entity has been duly formed and is validly existing
as a statutory trust under the Delaware Statutory Trust Act, and has the power
and authority under the Trust Agreement (as defined in such opinion) and such
Act to execute, deliver and perform its obligations under the Trust Documents
and the Certificates (each as defined in such opinion).
(ii) The Trust Agreement is the legal, valid and binding agreement
of the Depositor, the Sponsor and the Owner Trustee, enforceable against the
Depositor, the Sponsor and the Owner Trustee, in accordance with its terms.
(iii) The Trust Documents and the Certificates have been duly
authorized, executed and delivered by the Issuing Entity.
(iv) Neither the execution, delivery and performance by the Issuing
Entity of the Trust Documents, nor the consummation by the Issuing Entity of any
of the transactions contemplated thereby, requires the consent or approval of,
the withholding of objection on the part of, the giving of notice to, the
filing, registration or qualification with, or the taking of any other action in
respect of, any governmental authority or agency of the State of Delaware, other
than the filing of the Certificate of Issuing Entity with the Secretary of State
pursuant to the Trust Agreement and the filing of a financing statement on form
UCC-1 pursuant to the Indenture.
(v) Neither the execution, delivery and performance by the Issuing
Entity of the Trust Documents, nor the consummation by the Issuing Entity of the
transactions contemplated thereby, is in violation of the Trust Agreement or of
any law, rule or regulation of the State of Delaware applicable to the Issuing
Entity.
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(vi) Under the Delaware Statutory Trust Act, no creditor of any
owner of the Transferor Interest shall have any right to obtain possession of,
or otherwise exercise legal or equitable remedies with respect to, the property
of the Issuing Entity except in accordance with the Trust Agreement.
(vii) Under the Delaware Statutory Trust Act, the Issuing Entity is
a separate legal entity and, assuming that the Trust Agreement conveys good
title to the Issuing Entity property to the Issuing Entity as a true sale and
not as a security arrangement, the Issuing Entity rather than the owner of the
Transferor Interest will hold whatever title to the Issuing Entity property as
may be conveyed to it from time to time pursuant to the Trust Agreement, except
to the extent that the Issuing Entity has taken action to dispose of or
otherwise transfer or encumber any part of the Issuing Entity property.
(viii) Under the Delaware Statutory Trust Act, except to the extent
otherwise provided in the Trust Agreement, the owner of the Transferor Interest
(including the Depositor in its capacity as such) has no interest in specific
Issuing Entity property.
(ix) To the best of such counsel's knowledge, without independent
investigation, there are no proceedings pending or threatened against the
Issuing Entity or any of its properties before or by any court, arbitrator,
administrative agency or other governmental authority of the State of Delaware,
which if adversely determined, would adversely affect the ability of the Issuing
Entity to carry out the transactions contemplated by the Trust Agreement.
(x) When authenticated by the Certificate Registrar and delivered
pursuant to the Trust Agreement, the Certificates will be validly issued and
entitled to the benefits of the Trust Agreement.
(xi) The Financing Statement (as defined in such opinion) is in an
appropriate form for filing in the State of Delaware.
(xii) Insofar as Article 9 of the Delaware UCC is applicable
(without regard to conflict of laws principles), upon the filing of the
Financing Statement with the Division, the Indenture Trustee will have a
perfected security interest in the Issuing Entity's rights in that portion of
the Collateral described in the Financing Statement that may be perfected by the
filing of a UCC financing statement with the Division (the "Filing Collateral")
and the proceeds (as defined in Section 9-102(a)(64) of the Delaware UCC)
thereof.
(xiii) The Search Report (as defined in such opinion) sets forth the
proper filing office and the proper debtor necessary to identify those Persons
who under the Delaware UCC have on file financing statements against the Issuing
Entity covering the Filing Collateral as of the Effective Time. The Search
Report identifies no secured party who has on file with the Division a currently
effective financing statement naming the Issuing Entity as debtor and describing
the Filing Collateral prior to the Effective Time.
Such opinion may contain such assumptions, qualifications and
limitations as are customary in opinions of this type and are reasonably
acceptable to counsel to the Underwriters. In rendering such opinion, such
counsel may state that they express no opinion as to the laws of
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any jurisdiction other than the federal law of the United States of America and
the laws of the State of Delaware.
(g) The Underwriters shall have received the favorable
opinion, dated the Closing Date, of Xxxxx, Xxxxx, Xxxx & Maw LLP, special
counsel for the Sponsor, addressed to the Sponsor and satisfactory to
Standard & Poor's, a division of the XxXxxx-Xxxx Companies, Inc. ("S&P")
and Xxxxx'x Investors Service, Inc. ("Xxxxx'x" and, together with S&P, the
"Rating Agencies") and the Underwriters, with respect to certain matters
relating to the transfer of the Mortgage Loans to the Depositor and from
the Depositor to the Issuing Entity, and such counsel shall have consented
to reliance on such opinion by the Rating Agencies as though such opinion
had been addressed to them.
(h) The Underwriters shall have received an opinion of XxXxx
Xxxxxx LLP in its capacity as special counsel to the Underwriters, dated
the Closing Date, with respect to the validity of the Notes and such other
related matters as the Underwriters shall reasonably require and the
Depositor shall have furnished or caused to be furnished to such counsel
such documents as they may reasonably request for the purpose of enabling
them to pass upon such matters.
(i) The Policy shall have been duly authorized, executed,
issued and delivered by the Insurer, all fees due and payable to the
Insurer as of the Closing Date shall have been paid in full at or prior to
the Closing Date, and the Policy shall conform in all material respects to
the description thereof in the Registration Statement and the Prospectus
(and any supplements thereto).
(j) The Underwriters shall have received the opinion of Xxxxx
X. Xxxxx, Xx., internal counsel to the Insurer, or such other counsel
acceptable to the Underwriters and counsel to the Underwriters, dated the
Closing Date, satisfactory in form and substance to the Underwriters and
counsel to the Underwriters, to the effect that:
(i) The Insurer is a monoline financial guaranty insurance company
incorporated under the laws of the State of New York and duly qualified to
conduct an insurance business in the State of New York. The Insurer is validly
licensed and authorized to issue the Policy and perform its obligations under
the Policy in accordance with the terms thereof.
(ii) The Insurer has full corporate power and authority to execute
and deliver the Policy and the Policy has been duly authorized, executed and
delivered by the Insurer, and constitutes a legal, valid and binding obligation
of the Insurer enforceable in accordance with its terms except to the extent
that the enforceability (but not the validity) of such obligation may be limited
by any applicable bankruptcy, insolvency, liquidation, rehabilitation or other
similar law or enactment now or hereafter enacted affecting the enforcement of
creditors' rights generally and by general principles of equity.
(iii) The execution and delivery by the Insurer of the Policy will
not, and the consummation of the transactions contemplated thereby and the
satisfaction of the terms thereof will not, conflict with or result in a breach
of any of the terms, conditions or provisions of the Restated Articles of
Incorporation or Restated Corporate By-Laws of the Insurer, or, to the
-20-
knowledge of such counsel, any material restriction contained in any contract,
agreement or instrument to which the Insurer is a party or by which it is bound
or constitute a material default under any of the foregoing.
(iv) Proceedings legally required for the issuance of the Policy
have been taken by the Insurer and licenses, orders, consents or other
authorizations or approvals or approvals of any governmental boards or bodies
legally required for the enforceability of the Policy have been obtained or are
not material to the enforceability of the Policy.
(v) The Policy is exempt from registration under the Act.
(vi) To the knowledge of such counsel, there is no action, suit or
proceeding pending against or affecting the Insurer in any court, or before any
governmental body, which is likely to affect or impair the validity or
enforceability of the Policy.
(vii) The statements contained in the Prospectus Supplement under
the heading "The Insurer and the Policy" (other than any financial or
statistical information contained or incorporated by reference therein, as to
which such counsel may express no opinion), insofar as such statements
constitute summaries of the matters referred to therein, accurately reflect and
fairly present the information purported to be shown and, insofar as such
statements describe the Insurer, fair and accurately describe the Insurer
(viii) The Insurer is authorized to deliver the Insurance Agreement
and the Indemnification Agreement, and each of such agreements has been duly
executed and is the valid and binding obligation of the Insurer enforceable in
accordance with its terms except to the extent that the enforceability (but not
the validity) of such obligation may be limited by any applicable bankruptcy,
insolvency, liquidation, rehabilitation or other similar law or enactment now or
hereafter enacted affecting the enforcement of creditors' rights generally and
by general principles of equity and subject to principles of public policy
limiting the right to enforce the indemnification provisions contained therein.
Such opinions may be subject to such counsel's customary practices
and limitations relating to the scope of such counsel's participation in the
preparation of the Registration Statement and the Prospectus and its
investigation or verification of information contained therein.
(k) The Underwriters shall have received opinions of Xxxxxxxx,
Xxxxxx & Xxxxxx, P.A., counsel to the Owner Trustee, dated the Closing
Date, satisfactory in form and substance to the Underwriters and counsel
for the Underwriters, to the effect that:
(i) The Owner Trustee is duly incorporated and validly existing as a
banking corporation under the laws of the State of Delaware.
(ii) The Owner Trustee has the power and authority to execute,
deliver and perform the Trust Agreement and to consummate the transactions
contemplated thereby.
-21-
(iii) The Trust Agreement has been duly authorized, executed and
delivered by the Owner Trustee and is the legal, valid and binding agreement of
the Owner Trustee, enforceable against the Owner Trustee in accordance with its
terms.
(iv) Neither the execution, delivery and performance by the Owner
Trustee of the Trust Agreement, nor the consummation of any of the transactions
by the Owner Trustee contemplated thereby, is in violation of the charter or
bylaws of the Owner Trustee or of any law, governmental rule or regulation of
the State of Delaware or of the federal laws of the Untied States of America
governing the trust powers of the Owner Trustee, or, to the knowledge of such
counsel, without independent investigation, of any indenture, mortgage, bank
credit agreement, note or bond purchase agreement, long-term lease, license or
other agreement or instrument to which it is a party or by which it is bound.
(v) No consent, approval or other authorization of, or registration,
declaration or filing with, any court or governmental agency or commission of
the State of Delaware is required by or with respect to the Owner Trustee for
the valid execution, delivery and performance of the Trust Agreement, or for the
validity or enforceability thereof, other than the filing of the Certificate of
Trust with the Secretary of State.
Such opinion may contain such assumptions, qualifications and
limitations as are customary in opinions of this type and are reasonably
acceptable to counsel to the Underwriters. In rendering such opinion, such
counsel may state that they express no opinion as to the laws of any
jurisdiction other than the federal law of the United States of America and the
laws of the State of Delaware.
(l) On or prior to the Closing Date, there has been no
downgrading, nor shall any notice have been given of (i) any intended or
potential downgrading or (ii) any review or possible change in rating, the
direction of which has not been indicated, in the rating accorded the
Insurer's claims paying ability by any "nationally recognized statistical
rating organization" (as such term is defined for purposes of the Exchange
Act).
(m) The Underwriters shall have received from Xxxxx, Xxxxx,
Xxxx & Maw, LLP an opinion or opinions of counsel dated the Closing Date
and satisfactory in form and substance to the Underwriters and counsel for
the Underwriters, relating to the federal income tax treatment of the
Notes.
(n) The Underwriters shall have received an opinion of Xxxxxx
& Xxxxxxx LLP, counsel to the Indenture Trustee, dated the Closing Date,
in form and in substance satisfactory to the Underwriters and counsel for
the Underwriters, to the effect that:
(i) The Indenture Trustee is a national banking association validly
existing under the laws of the United States.
(ii) The Indenture Trustee has the requisite power and authority to
execute, deliver and perform its obligations under the Indenture, the Sale and
Servicing Agreement and the Administration Agreement (the "Indenture Trustee
Agreements") and has taken all
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necessary action to authorize the execution, delivery and performance by it of
the Indenture Trustee Agreements.
(iii) Each Indenture Trustee Agreement has been duly executed and
delivered by the Indenture Trustee and each Indenture Trustee Agreement
constitutes a legal, valid and binding obligation of the Indenture Trustee
enforceable against the Indenture Trustee in accordance with its terms, except
that certain of such obligations may be enforceable solely against the Issuing
Entity or the Collateral, as the case may be, and except that such enforcement
may be limited by bankruptcy, insolvency, reorganization, moratorium,
liquidation or other similar laws affecting the enforcement of creditors' rights
generally, and by general principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair dealing (regardless
of whether such enforceability is considered in a proceeding at equity or at
law).
(iv) The Notes delivered on the Closing Date have been duly
authenticated by the Indenture Trustee in accordance with the terms of the
Indenture.
(o) The Underwriters shall have received copies of each
opinion of counsel delivered to either rating agency, the Sponsor or the
Insurer, either addressed to the Underwriters or together with a letter
addressed to the Underwriters, dated the Closing Date, to the effect that
each Underwriter may rely on each such opinion to the same extent as
though such opinion was addressed to each as of its date.
(p) The Underwriters shall have received certificates dated
the Closing Date of each of the Depositor, the Sponsor, and the Servicer,
executed by any two of the Chairman of the Board, the President, any
Executive Vice President, Senior Vice President or Vice President, the
Treasurer, any Assistant Treasurer, the Secretary, the principal financial
officer or the principal accounting officer of each of the Depositor, the
Sponsor, and the Servicer, in which such officer of the Depositor, the
Sponsor, and the Servicer, as the case may be, shall state that, (i) to
the best of its knowledge after reasonable investigation, the
representations and warranties of the Sponsor and the Servicer, as
applicable, contained in Section 3.01 of the Purchase Agreement and
Section 2.04 of the Sale and Servicing Agreement, on and as of the date
made or as of any other date provided therein, are true and correct in all
material respects; provided that the remedies available to you for any
breach of the representations and warranties set forth in Section 3.01 of
the Purchase Agreement shall be limited to the remedies set forth in that
Section, (ii) that the Depositor, the Sponsor or the Servicer, as the case
may be, has complied with all agreements and satisfied all conditions on
its respective part to be performed or satisfied under such agreements at
or prior to the Closing Date, (iii) in the case of the certificate from
the Depositor only, that no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been instituted or are contemplated by the Commission, and (iv)
except as may be disclosed in the Prospectus or in such certificate, no
material adverse change, or any development involving a prospective
material adverse change, in or affecting particularly the business or
properties of the Depositor, the Sponsor or the Servicer, has occurred.
-23-
(q) The Underwriters shall have received evidence satisfactory
to it that, on or before the Closing Date, UCC-1 financing statements have
been or are being filed in the appropriate filing offices reflecting the
transfer of the interest in the Mortgage Loans and the proceeds thereof
from the Sponsor to the Depositor and from the Depositor to the Indenture
Trustee on behalf of the Issuing Entity.
(r) At the Closing Date, the Notes shall have been rated "AAA"
by S&P and "Aaa" by Xxxxx'x.
(s) Subsequent to the execution of this Agreement and on or
prior to the Closing Date, there has been no downgrading, nor shall any
notice have been given of any intended or potential downgrading in the
rating accorded the Sponsor's outstanding securities by any "nationally
recognized statistical rating organization" (as such term is defined for
purposes of the Exchange Act).
(t) The Depositor shall provide or cause to be provided to the
Underwriters such conformed copies of such of the foregoing opinions,
certificates, letters and documents delivered pursuant to this Agreement
as the Underwriters shall reasonably request.
(u) The Underwriters shall have received at or before the
Closing Date, from Deloitte & Touche LLP, letters, dated as of the date of
this Agreement, substantially in the form previously agreed to (A)
confirming that they are independent public accountants within the meaning
of the Act and are in compliance with the applicable requirements relating
to the qualification of accountants under Rule 2-01 of Regulation S-X of
the Commission, and (B) stating the conclusions and findings of such firm
with respect to the financial information and other matters covered by its
letter.
(v) Each of the Underwriters shall have received on and as of
the Closing Date a certificate of an officer of the Indenture Trustee,
with specific knowledge about that part of the Registration Statement
which constitutes the Statement of Eligibility and Qualification (Form
T-1) of the Indenture Trustee under the Trust Indenture Act, satisfactory
to each of the Underwriters to the effect that such part of the
Registration Statement complies, or will comply, as the case may be, in
all material respects with the Act and the Trust Indenture Act and does
not and will not, as of the applicable effective date of the Registration
Statement and any amendment thereto, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading.
8. Indemnification and Contribution.
(a) Each of the Sponsor and the Depositor shall indemnify and
hold each Underwriter and each Person, if any, who controls each
Underwriter within the meaning of Section 15 of the Act harmless against
any losses, claims, damages or liabilities, joint or several, to which
such Underwriter or any such controlling person may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
(i) any untrue statement or alleged untrue
-24-
statement of any material fact contained in the Registration Statement,
(ii) the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading, (iii) any untrue statement or alleged untrue statement of
a material fact contained in the Prospectus (including any Static Pool
Data referred to therein), the Pricing Free Writing Prospectus (including
any Static Pool Data referred to therein), any ABS Informational and
Computational Materials (but excluding any Derived Information included
therein), Issuer Free Writing Prospectus or Sponsor-Provided Information
used in the preparation of any Underwriter Free Writing Prospectus or in
any Underwriter Free Writing Prospectus or (iv) the omission or alleged
omission to state therein a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading and shall reimburse each Underwriter or such
controlling person promptly upon demand for any legal or other expenses
reasonably incurred by such Underwriter or such controlling person in
connection with investigating or defending or preparing to defend against
any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that neither the Seller nor the Depositor
shall be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement in or omission or alleged omission from any of
such documents in reliance upon and in conformity with (A) any information
provided to the Depositor by the Underwriters specifically for use in the
Registration Statement, the Prospectus, or any amendment or supplement
thereto as may be identified in a side letter between the Underwriters and
the Depositor (the "Underwriters' Information") or (B) any Derived
Information.
(b) (i) Each Underwriter, severally and not jointly, agrees to
indemnify and hold harmless each of the Sponsor and the Depositor against
any and all losses, claims, damages or liabilities to which either the
Sponsor or the Depositor may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon (A) any untrue statement
or alleged untrue statement of any material fact contained in the
Registration Statement, (B) the omission or alleged omission to state
therein a material fact required to be stated therein or necessary in
order to make the statements therein not misleading, (C) any untrue
statement or alleged untrue statement of a material fact contained in the
Prospectus, the Pricing Free Writing Prospectus or any Underwriter Free
Writing Prospectus or (D) the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein, in the 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 omission or alleged omission was
made in reliance upon and in conformity with the Underwriters'
Information, and shall reimburse any legal or other expenses reasonably
incurred by the Sponsor or the Depositor in connection with investigating
or defending or preparing to defend any such loss, claim, damage,
liability or action as such expenses are incurred.
(ii) Each Underwriter severally agrees, assuming (a) all information
provided by the Depositor (including the computer tape furnished to any
Underwriter and any other Depositor Provided Information) is accurate and
complete in all material respects and (b) the Depositor's independent public
accountants have provided the letter described in Section 5(q), to indemnify and
hold harmless each of the Sponsor and the Depositor against any and all losses,
-25-
claims, damages or liabilities, joint or several, to which either the Sponsor or
the Depositor may become subject under the Act or otherwise, insofar as 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 a
material fact contained in the Derived Information prepared by such Underwriter
when read in conjunction with the Pricing Free Writing Prospectus, or arise out
of or are based upon the omission or alleged omission to state in such Derived
Information when read in conjunction with the Prospectus a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading and
agrees to reimburse each such indemnified party for any legal or other expenses
reasonably incurred by it in connection with investigating or defending or
preparing to defend any such loss, claim, damage, liability or action as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under subsection (a) or (b) above, notify the
indemnifying party of the commencement thereof; but the omission so to
notify the indemnifying party will not relieve it from any liability which
it may have to any indemnified party otherwise than under subsection (a)
or (b), except to the extent it has been materially prejudiced by such
failure and provided further that the failure to notify any indemnifying
party shall not relieve it from any liability which it may have to any
indemnified party otherwise than under this Section 9. In case any such
action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party
will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party). After notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof and approval by the indemnified party of the counsel appointed by
the indemnifying party, the indemnifying party will not be liable to such
indemnified party under this Section for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. Any
indemnified party shall have the right to employ separate counsel in any
such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless: (i) the employment thereof has been specifically authorized by the
indemnifying party in writing; (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses
available to it which are different from or additional to those available
to the indemnifying party and in the reasonable judgment of such counsel
it is advisable for such indemnified party to employ separate counsel; or
(iii) the indemnifying party has failed to assume the defense of such
action and employ counsel reasonably satisfactory to the indemnified
party, in which case, if such indemnified party notifies the indemnifying
party in writing that it elects to employ separate counsel at the expense
of the indemnifying party, the indemnifying party shall not have the right
to assume the defense of such action on behalf of such indemnified party,
it being understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially similar
or related actions in the same jurisdiction arising out of the same
general allegations or circumstances be liable for the reasonable fees and
expenses of more than one
-26-
separate firm of attorneys (in addition to local counsel) at any time for
all such indemnified parties, which firm shall be designated in writing by
the Underwriters. Each indemnified party, as a condition of the indemnity
agreements contained in subsections (a) and (b), shall use its best
efforts to cooperate with the indemnifying party the defense of any such
action or claim. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action 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 (i) unless such settlement includes an unconditional
release of such indemnified party from all liability from any claims that
are the subject matter of such action and (ii) does not include a
statement as to or admission of, fault, culpability or a failure to act by
or on behalf of any such indemnified party. No indemnifying party shall be
liable for any settlement of any such action effected without its written
consent (which consent shall not be unreasonably withheld), but if settled
with its written consent or if there be a final judgment of the plaintiff
in any such action, the indemnifying party agrees to indemnify and hold
harmless any 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, 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 60 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.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute
to the amount paid or payable by such indemnifying party as a result of
the losses, claims, damages or liabilities referred to in subsection (a)
or (b) above (i) in such proportion as is appropriate to reflect the
relative benefits received by the Depositor and the Sponsor on the one
hand and the Underwriters on the other from the offering of the Notes 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 Depositor and the Sponsor on the one hand and 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 Depositor and the Sponsor on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion so
that each Underwriters is responsible for that portion represented by the
percentage that the underwriting discount appearing on the cover page of
the Prospectus bears to the public offering price appearing on the cover
page of the Prospectus and the Sponsor or the Depositor shall be
responsible for the balance. The relative fault shall be determined by
reference to whether the untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Depositor or the Sponsor or by the
Underwriters, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such statement
or omission and other equitable considerations. The Sponsor, the Depositor
and the Underwriters agree that it would not be just and equitable if
contributions pursuant to this
-27-
Agreement were to be determined by pro rata allocation or by any other
method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this subsection (d) shall
be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any
action or claim which is the subject of this subsection (d).
Notwithstanding the provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by
which the total underwriting discounts and/or commissions received by the
related Underwriter exceeds the amount of any damages which 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 Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
(e) The obligations of the Depositor and the Sponsor under
this Section 9 shall be in addition to any liability which the Depositor
or the Sponsor may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the Underwriters
under this Section shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each director of the Depositor and the Sponsor,
to each officer of the Depositor who has signed the Registration Statement
and to each person, if any, who controls the Depositor or the Sponsor
within the meaning of the Act.
9. Survival of Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of
each of the Sponsor and the Depositor or its officers and of the Underwriters
set forth in or made pursuant to this Agreement or contained in certificates of
officers of the Sponsor or the Depositor submitted pursuant hereto shall remain
operative and in full force and effect, regardless of any investigation or
statement as to the results thereof, made by or on behalf of any Underwriter,
the Depositor, the Sponsor or any of their respective representatives, officers
or directors or any controlling person, and will survive delivery of and payment
for the Notes. If for any reason other than the fault of the Underwriters the
purchase of the Notes by the Underwriters is not consummated, the Depositor
shall remain responsible for the expenses to be paid or reimbursed by the
Depositor pursuant to Section 5(n) hereof and the respective obligations of the
Depositor, the Sponsor and the Underwriters pursuant to Section 9 shall remain
in effect.
10. Failure to Purchase the Notes. If any one or more of the
Underwriters shall fail to purchase and pay for any of the Notes agreed to be
purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the
aggregate principal amount of all the Notes of the various Classes set forth
opposite their names in the Prospectus Supplement bears to the aggregate
principal amount of all of the Notes of the various Classes set forth opposite
the name of all the remaining Underwriters) the Notes that the defaulting
Underwriter or Underwriters agreed but failed to purchase; provided, however,
that in the event that the aggregate principal amount of Notes which the
defaulting Underwriter or Underwriters
-28-
agreed but failed to purchase shall exceed 10% of the aggregate principal amount
of all of the Notes set forth in the Prospectus Supplement, the remaining
Underwriters shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Notes, and if such nondefaulting Underwriters
do not purchase all the Notes, this Agreement will terminate without liability
to any nondefaulting Underwriter, the Sponsor or the Depositor. In the event of
a default by any Underwriter as set forth in this Section 10, the Closing Date
shall be postponed for such period, not exceeding seven days, as the
nondefaulting Underwriters shall determine in order that required changes in the
Registration Statement, the Pricing Free Writing Prospectus and the Prospectus
or in any other documents or arrangements may be effected. Nothing contained in
this Agreement shall relieve any defaulting Underwriter of its liability, if
any, to the Sponsor, the Depositor and to any nondefaulting Underwriter for
damages occasioned by its defaulting hereunder.
11. Notices. Any written request, demand, authorization, direction,
notice, consent or waiver shall be personally delivered or mailed certified
mail, return receipt requested (or in the form of telex or facsimile notice,
followed by written notice as aforesaid) and shall be deemed to have been duly
given upon receipt, if sent to Lehman, when delivered to Xxxxxx Brothers Inc.,
Attention: Xxxxx Xxxxxxxxxx, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, if
sent to Bear, when delivered to Bear, Xxxxxxx & Co. Inc., Attention: Xxxx
Xxxxxxx, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, if sent to Credit Suisse,
when delivered to Credit Suisse Securities (USA) LLC, Attention: Xxxxx Xxx,
Eleven Madison Avenue, New York, New York 1001, if sent to IndyMac, when
delivered to IndyMac Securities Corporation, Attention: Xxxxx Xxxxxx, 000 X.
Xxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, if sent to Goldman, when
delivered to Xxxxxxx, Xxxxx & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxx Xxxxxxxxxx and if sent to the Depositor, when delivered to
IndyMac MBS, Inc., 0000 Xxxx Xxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000,
Attention: Xxxxxx Xxxxxxxxx, Esq.
12. Successors. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 9, and no other
person will have any right or obligations hereunder.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. Applicable Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
15. No Fiduciary Duty. The Sponsor acknowledges that in connection
with the offering of the Notes: (a) the Underwriters have acted at arms length,
are not agents of, and owe no fiduciary duties to, the Sponsor or any other
person, (b) the Underwriters owe the Sponsor only those duties and obligations
set forth in this Agreement and (c) the Underwriters may have interests that
differ from those of the Sponsor. The Sponsor 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 Notes.
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If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us one of the counterparts hereof,
whereupon it will become a binding agreement between the Depositor, the Sponsor
(to the extent set forth below) and the Underwriters in accordance with its
terms.
Very truly yours,
INDYMAC MBS, INC.,
as Depositor
By: /s/ Xxxx Xxxxxxxx
---------------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
INDYMAC BANK, F.S.B.,
as Sponsor (but only with respect to its
representations and warranties in Section
2(b) and its obligations pursuant to
Section 9 and not with respect to any other
part of this Agreement)
By: /s/ Xxxx Xxxxxxxx
---------------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
The foregoing Underwriting
Agreement is hereby
confirmed and accepted as
of the date first written above.
Xxxxxx Brothers Inc.
By: /s/ Xxxxxx X. X'Xxxx
------------------------------------
Name: Xxxxxx X. X'Xxxx
Title: Managing Director
Bear, Xxxxxxx & Co. Inc.
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Senior Managing Director
Credit Suisse Securities (USA) LLC
By: /s/ Xxxxx Xxxxx Xxx
------------------------------------
Name: Xxxxx Xxxxx Xxx
Title: Director
Xxxxxxx, Xxxxx & Co.
By: /s/ Xxxxxxxx Xxxx
------------------------------------
Name: Xxxxxxxx Xxxx
Title: Managing Director
IndyMac Securities Corporation
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Title: Chief Executive Officer
-31-
SCHEDULE I
INITIAL PRINCIPAL
UNDERWRITER AMOUNT OF NOTES
----------- -----------------
Xxxxxx Brothers Inc. $ 357,685,920
Bear, Xxxxxxx & Co. Inc. $ 69,550,040
Xxxxxxx, Xxxxx & Co. $ 29,807,160
Credit Suisse Securities (USA) LLC $ 29,807,160
IndyMac Securities Corporation $ 9,935,720
A-1
