INDEMNIFICATION AND CONTRIBUTION AGREEMENT
INDEMNIFICATION
AND
CONTRIBUTION
AGREEMENT
AGREEMENT,
dated [________] (this “Agreement”), among IndyMac ABS, Inc., a Delaware
corporation (“IndyMac ABS”), the Seller (as defined below) and the
Broker-Dealers (as defined below).
WITNESSETH:
WHEREAS,
IndyMac ABS and one or more of the Broker-Dealers are parties to the
Underwriting Agreement (defined below), providing for the sale by IndyMac ABS
and the purchase, severally and not jointly, by such Broker-Dealers of the
Public Certificates (defined below); and
WHEREAS,
IndyMac ABS and one or more of the Broker-Dealers are parties to the Purchase
Agreement (defined below), providing for the sale by IndyMac ABS and the
purchase, severally and not jointly, by such Broker-Dealers of the Private
Certificates (defined below) other than the Private Certificates that are
Retained Certificates; and
WHEREAS,
as an inducement to the Broker-Dealers to enter into the Underwriting Agreement
and the Purchase Agreement, as applicable, IndyMac ABS and the Broker-Dealers
wish to provide for indemnification and contribution on the terms and conditions
hereinafter set forth; and
WHEREAS,
the purchase price to be paid by IndyMac ABS to the Seller for the Mortgage
Loans will be the proceeds of the sale by IndyMac ABS to the Broker-Dealers
of
the Public Certificates and the Private Certificates, and as an inducement
to
the Broker-Dealers to enter into the Underwriting Agreement and Purchase
Agreement, as applicable, the Seller agrees to perform certain obligations
set
forth herein;
NOW,
THEREFORE, in consideration of the foregoing and of other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the
parties hereto agree as follows:
ARTICLE
I
Definitions
1.1. Certain
Defined Terms.
The
following terms shall have the meanings set forth below, unless the context
clearly indicates otherwise:
Act:
The
Securities Act of 1933, as amended.
Agreement:
This
Indemnification and Contribution Agreement, as the same may be amended in
accordance with the terms hereof.
Base
Prospectus:
The
prospectus dated [ ], as the same may
be amended or supplemented, of IndyMac ABS relating to the offering from time
to
time of one or more series of mortgage pass-through certificates.
Broker-Dealer:
Each of
the signatories to this Agreement other than IndyMac ABS or the
Seller.
Certificates:
Mortgage Pass-Through Certificates, [ ] of IndyMac
ABS.
Closing
Date:
On or
about [ ].
Collateral
Term Sheets:
As
defined in the No-Action Letters.
Computational
Materials:
As
defined in the No-Action Letters.
Derived
Information:
As to
any Broker-Dealer, such information, if any, in the Series Term Sheets,
Collateral Term Sheets, Structural Term Sheets and/or Computational Materials
that is not contained in (i) the Prospectus, the Registration Statement, the
Memorandum or amendments or supplements to either, taking into account
information incorporated therein by reference (other than information
incorporated by reference from the Series Term Sheets, Collateral Term Sheets,
Structural Term Sheets and/or Computational Materials) or (ii) any Seller
Mortgage Loan Information; provided,
however,
that
Derived Information shall not include any error or omission or alleged error
or
alleged omission that results from a Pool Error.
Exchange
Act:
The
Securities Exchange Act of 1934, as amended.
Form
8-K:
Any of
the Current Reports on Form 8-K filed by or on behalf of IndyMac ABS with
respect to the Mortgage Loans and including any Collateral Term Sheet,
Computational Materials, Series Term Sheet or Structural Term Sheet furnished
by
one or more of the Broker-Dealers.
IndyMac
ABS:
IndyMac
ABS, Inc., a Delaware corporation and its successors in interest.
IndyMac
ABS Memorandum Information:
All
information contained or incorporated in the Memorandum other than the Purchaser
Information.
IndyMac
ABS Prospectus Information:
All
information contained or incorporated in the Prospectus other than the Senior
Underwriter Information and the Subordinate Underwriter
Information.
IndyMac
ABS Registration Information:
All
information contained or incorporated in the Registration
Statement.
Memorandum:
The
Confidential Private Placement Memorandum, if any, dated the Closing Date,
as
the same may be amended or supplemented, of IndyMac ABS relating to the Private
Certificates other than the Private Certificates that are Retained
Certificates.
No-Action
Letters:
The
no-action letter dated May 20, 1994 issued by the Division of Corporation
Finance of the Securities and Exchange Commission (“SEC”) to Xxxxxx, Xxxxxxx
Acceptance Corporation I, Xxxxxx Peabody & Co. Incorporated, and Xxxxxx
Structured Asset Corporation; the no-action letter dated May 27, 1994 issued
by
the Division of Corporation Finance of the SEC to the Public Securities
Association; the no-action letter dated February 17, 1995 issued by the SEC
to
the Public Securities Association; the letter of Xxxxxx Xxxxxxxx, Xxxxx &
Xxxxxxxx on behalf of the Public Securities Association (which letter and the
SEC staff’s response thereto are publicly available); and the no-action letter
issued by the SEC addressed to Greenwood Trust Company, Discover Card Master
Trust 1 dated April 5, 1996.
Offered
Certificates:
The
Public Certificates and the Private Certificates.
Pool
Error:
Any
error in the Seller Mortgage Loan Information.
Private
Certificates:
The
[ ]
Certificates.
Prospectus:
The
Base Prospectus together with the Prospectus Supplement.
Prospectus
Supplement:
The
Prospectus Supplement dated the date hereof, as the same may be amended or
supplemented, of IndyMac ABS relating to the offering of the Public
Certificates.
Public
Certificates:
The
Senior Certificates and the Subordinate Certificates.
Purchase
Agreement:
The
Purchase Agreement, if any, dated the Closing Date, between IndyMac ABS and
the
Purchaser providing for the purchase and sale of the Private Certificates,
other
than the Retained Certificates that are Private Certificates.
Purchase
Spread:
The
excess, if any, of (i) the purchase prices paid by investors to the Purchaser
for the Private Certificates other than the Private Certificates that are
Retained Certificates over (ii) the purchase price paid by the Purchaser to
IndyMac ABS for the Private Certificates other than the Private Certificates
that are Retained Certificates pursuant to the Purchase Agreement.
Purchaser:
The
Broker-Dealer that is purchasing the Private Certificates other than the Private
Certificates that are Retained Certificates pursuant to the Purchase
Agreement.
Purchaser
Information:
The
only written information furnished by or on behalf of the Purchaser to IndyMac
ABS specifically for use in connection with the preparation of the Memorandum,
such information being the information relating to the Purchaser set forth
in
the Memorandum under the caption “Method of Placement.”
Registration
Statement:
As
defined in the Underwriting Agreement.
Retained
Certificates:
The
Class [ ]
Certificates.
Seller:
IndyMac
Bank, F.S.B., a federal savings bank, and its successors in
interest.
Seller
Mortgage Loan Information:
Information relating to the Mortgage Loans furnished by or on behalf of the
Seller to any Broker-Dealer.
Senior
Certificates:
The
[ ]
Certificates.
Senior
Spread:
The
excess, if any, of (i) the purchase prices paid by investors to the Senior
Underwriter for the Senior Certificates over (ii) the purchase price paid by
the
Senior Underwriter to IndyMac ABS for such Senior Certificates pursuant to
the
Underwriting Agreement.
Senior
Underwriter:
The
Broker-Dealer which is purchasing the Senior Certificates, pursuant to the
Underwriting Agreement.
Senior
Underwriter Information:
The
written information furnished by or on behalf of the Senior Underwriter to
IndyMac ABS specifically for use in connection with the preparation of the
Registration Statement or the Prospectus, such information being (i) the
information relating to the Senior Underwriter set forth in the Prospectus
Supplement under the caption “Method of Distribution” therein and (ii) any
Derived Information of such Senior Underwriter, furnished to IndyMac ABS and
included in a Form 8-K.
Subordinate
Certificates:
The
[ ]
Certificates.
Subordinate
Spread:
The
excess, if any, of (i) the purchase prices paid by investors to the Subordinate
Underwriter for the Subordinate Certificates, over (ii) the purchase price
paid
by the Subordinate Underwriter to IndyMac ABS for such Subordinate Certificates
pursuant to the Underwriting Agreement.
Subordinate
Underwriter:
The
Broker-Dealer, if any, which is purchasing the Subordinate Certificates, if
any,
pursuant to the Underwriting Agreement.
Subordinate
Underwriter Information:
The
only written information furnished by or on behalf of the Subordinate
Underwriter to IndyMac ABS specifically for use in connection with the
preparation of the Registration Statement or the Prospectus, such information
being (i) the information relating to the Subordinate Underwriter set forth
in
the Prospectus Supplement under the caption “Method of Distribution” therein and
(ii) any Derived Information of such Subordinate Underwriter, furnished to
IndyMac ABS and included in a Form 8-K.
Underwriting
Agreement:
The
Underwriting Agreement, dated the date hereof, among IndyMac ABS, the Senior
Underwriter and the Subordinate Underwriter providing for the purchase and
sale
of the Public Certificates, other than the Retained Certificates that are Public
Certificates.
1.2. Other
Terms.
Capitalized
terms used but not defined herein shall have the meanings assigned to such
terms
in the Underwriting Agreement or the Purchase Agreement, as
applicable.
1.3. Interpretive
Principle.
A
Broker-Dealer may be acting in more than one capacity. References herein to
a
Broker-Dealer acting in a particular capacity shall refer to such Broker-Dealer
in such capacity only and shall not refer to other capacities, if any, being
served by such Broker-Dealer.
ARTICLE
II
Representations
and Warranties
2.1. Mutual
Representation.
Each
party hereto represents to the other parties hereto that:
(a) the
execution, performance and delivery of this Agreement has been duly authorized
by such party;
(b) this
Agreement has been duly executed and delivered by such party; and
(c) this
Agreement constitutes the legal and valid obligations of such
party.
2.2. Other
Representations.
(a) IndyMac
ABS has all requisite corporate power and authority to execute, deliver and
perform its obligations under this Agreement; and
(b) The
Seller has all requisite corporate power and authority to execute, deliver
and
perform its obligations under this Agreement.
(c) In
relation to each Member State of the European Economic Area that has implemented
the Prospectus Directive (each, a “Relevant Member State”), each Broker-Dealer
represents and agrees with the Depositor that with effect from and including
the
date on which the Prospectus Directive is implemented in that Relevant Member
State (the “Relevant Implementation Date”) and with respect to any Class of
Certificates with a minimum denomination of less than $100,000 that is purchased
by such Broker-Dealer it has not made and will not make an offer of Certificates
of that Class to the public in that Relevant Member State prior to the
publication of a prospectus in relation to the Certificates of that Class which
has been approved by the competent authority in that Relevant Member State
or,
where appropriate, approved in another Relevant Member State and notified to
the
competent authority in that Relevant Member State, all in accordance with the
Prospectus Directive, except that it may, with effect from and including the
Relevant Implementation Date, make an offer of Certificates of that Class to
the
public in that Relevant Member State at any time:
(i) to
legal
entities which are authorized or regulated to operate in the financial markets
or, if not so authorized or regulated, whose corporate purpose is solely to
invest in securities;
(ii) to
any
legal entity which has two or more of (1) an average of at least 250 employees
during the last fiscal year; (2) total assets of more than €43,000,000 and (3)
an annual net revenue of more than €50,000,000, as shown in its last annual or
consolidated financial statements; or
(iii) in
any
other circumstances that do not require the publication by the Depositor of
a
prospectus pursuant to Article 3 of the Prospectus Directive.
For
the
purposes of this provision, the expression an “offer of Certificates of that
Class to the public” in relation to any Class of Certificates, which Class has a
minimum denomination of less than $100,000, in any Relevant Member State means
the communication in any form and by any means of sufficient information on
the
terms of the offer and the Certificates to be offered so as to enable an
investor to decide to purchase or subscribe the Certificates of that Class,
as
the same may be varied in that Member State by any measure implementing the
Prospectus Directive in that Member State, and the expression “Prospectus
Directive” means Directive 2003/71/EC and includes any relevant implementing
measure in each Relevant Member State.
2.3. Computational
Materials.
Each
Broker-Dealer which desires to furnish Collateral Term Sheets, Computational
Materials, Series Term Sheets or Structural Term Sheets to potential investors
shall furnish fifteen (15) copies thereof and an electronic copy thereof in
Microsoft Word or Microsoft Excel format or such other electronic format
suitable for conversion to XXXXX format to Xxxxxxx Xxxxxxxx & Wood
llp
no
later
than 3:00 p.m. New York City time on the business day prior to the day on which
these materials are required to be filed under the applicable No-Action Letter.
In addition, each Broker-Dealer which has so furnished such materials hereby
represents as to the materials it has furnished as follows:
(a) The
Collateral Term Sheets, Computational Materials, Series Term Sheets or
Structural Term Sheets so furnished by such Broker-Dealer comply in all material
respects with the terms of the applicable No-Action Letter.
(b) The
Derived Information included in the Senior Underwriter Information or the
Subordinate Underwriter Information, as applicable, pursuant to the definitions
thereof does not contain an untrue statement of a material fact or, when read
in
conjunction with the Prospectus as an integral document, 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 that the Prospectus (exclusive of such Derived
Information and the Senior Underwriter Information or the Subordinate
Underwriter Information, as the case may be, provided by such Underwriter)
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.
(c) The
materials so furnished contain customary legends regarding the assumptions
on
which they are based and the absence of assurances or representations as to
the
actual rate or timing of principal payments or prepayments on any of the
Mortgage Loans or the performance characteristics of the Certificates, and
a
statement to the effect that the materials so furnished were prepared by the
applicable Broker-Dealer in reliance on information regarding the Mortgage
Loans
furnished by the Issuer.
(d) Neither
IndyMac ABS nor any of its affiliates participated in the preparation of the
Collateral Terms Sheets, Computational Materials, Series Term Sheets or
Structural Term Sheets other than by supplying the Seller Mortgage Loan
Information to Broker-Dealer.
(e) At
or
prior to the time any such materials are furnished to IndyMac ABS for filing
on
Form 8-K, the Broker-Dealer furnishing such materials will provide to IndyMac
ABS and such Broker-Dealer a letter, in form and substance reasonably
satisfactory to IndyMac ABS and such Broker-Dealer, of a firm of independent
public accountants of national reputation to the effect that such accountants
have performed certain specified procedures with respect to such materials
and
have found no exceptions, other than such exceptions as are acceptable to
IndyMac ABS and the Broker-Dealer. Fifty percent (50%) of the costs and expenses
of such letter will be paid by each of the Broker-Dealers obtaining the same
and
IndyMac ABS.
ARTICLE
III
Indemnification
3.1. Indemnification.
(a) IndyMac
ABS agrees to indemnify and hold harmless each Broker-Dealer and each person
who
controls a Broker-Dealer within the meaning of either the Act or the Exchange
Act against any and all losses, claims, damages or liabilities, joint or
several, to which they may become subject under the Act, the Exchange Act,
or
other federal or state statutory law or regulation, at common law 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 IndyMac ABS Memorandum
Information, the IndyMac ABS Prospectus Information or the IndyMac ABS
Registration Information or in any revision or amendment thereof or supplement
thereto or arise out of or are based upon the omission or alleged omission
to
state in the IndyMac ABS Memorandum Information, the IndyMac ABS Prospectus
Information or the IndyMac ABS Registration Information or in any revision
or
amendment thereof or supplement thereto a material fact required to be stated
therein or the omission or alleged omission to state a material fact in the
IndyMac ABS Memorandum Information, the IndyMac ABS Prospectus Information
or
the IndyMac ABS Registration Information or in any revision or amendment thereof
or supplement thereto 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 or him in connection with investigating or defending any such
loss, claim, damage, liability or action; provided,
however,
that
IndyMac ABS shall not be liable to a particular Broker-Dealer or any person
who
controls such Broker-Dealer to the extent that any misstatement or alleged
misstatement or omission or alleged omission was (i) made in reliance upon
and
in conformity with the Senior Underwriter Information, the Subordinate
Underwriter Information or the Purchaser Information, as applicable, and (ii)
in
the case of the IndyMac ABS Prospectus Information, to the extent that such
misstatement or omission was corrected and such Broker-Dealer did not deliver,
at or prior to the written confirmation of such sale, a copy of the Prospectus
as then revised, amended or supplemented in any case where such delivery is
required by the Act or the Exchange Act, if IndyMac ABS has previously furnished
copies thereof to the Broker-Dealers in accordance with the terms of the
Underwriting Agreement or the Purchase Agreement, as applicable. This indemnity
agreement will be in addition to any liability which IndyMac ABS may otherwise
have.
(b) Each
Broker-Dealer severally agrees to indemnify and hold harmless IndyMac ABS,
its
officers who signed the Registration Statement or any amendment thereof, its
directors, and each person who controls IndyMac ABS within the meaning of either
the Act or the Exchange Act, to the same extent as the foregoing indemnities
from IndyMac ABS to each Broker-Dealer; provided,
however,
that a
Broker-Dealer will be liable in any such case only to the extent that such
untrue statement or alleged untrue statement or omission or alleged omission
was
made in reliance upon and in conformity with (i) the Senior Underwriter
Information, in the case of the Senior Underwriter, (ii) the Subordinate
Underwriter Information, in the case of the Subordinate Underwriter and (iii)
the Purchaser Information, in the case of the Purchaser; and provided,
further,
that
any such omission or alleged omission relating to the Derived Information
included in the Senior Underwriter Information or the Subordinate Underwriter
Information, as the case may be, pursuant to the definitions thereof shall
be
determined by reading such Derived Information in conjunction with the
Prospectus as an integral document and in light of the circumstances under
which
such statements in the Derived Information and Prospectus were made. This
indemnity agreement will be in addition to any liability which any Broker-Dealer
may otherwise have.
(c) Promptly
after receipt by an indemnified party under this Section 3.1 of notice of the
commencement of any action, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under this Section 3.1,
notify the indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve the indemnifying
party from any liability which it may have to any indemnified party otherwise
than under this Section 3.1. In case any such action is brought against any
indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate therein, and
to
the extent that it may elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such indemnified party,
to assume the defense thereof, with counsel satisfactory to such indemnified
party; provided,
however,
that if
the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party or parties shall have reasonably
concluded that there may be legal defenses available to it or them and/or other
indemnified parties that are different from or additional to those available
to
the indemnifying party, the indemnified party or parties shall have the right
to
elect separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party
or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval
by
the indemnified party of counsel, the indemnifying party will not be liable
for
any legal or other expenses subsequently incurred by such indemnified party
in
connection with the defense thereof, unless (i) the indemnified party shall
have
employed separate counsel in connection with the assertion of legal defenses
in
accordance with the proviso to the next preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel for each of, and approved by, the Senior
Underwriter, the Subordinate Underwriter or the Purchaser, as applicable, in
the
case of paragraph (a) of this Section 3.1, representing the related indemnified
parties under such paragraph (a) who are parties to such action), (ii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action or (iii) the indemnifying party
has
authorized the employment of counsel for the indemnified party at the expense
of
the indemnifying party; and except that, if clause (i) or (iii) is applicable,
such liability shall only be in respect of the counsel referred to in such
clause (i) or (iii). No indemnifying party shall, without the consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party
from
all liability on claims that are the subject matter of such
proceeding.
3.2. Contribution.
If
the
indemnification provided for in Section 3.1 is unavailable or insufficient
to
hold harmless an indemnified party under Section 3.1(a)-(b), then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of the losses, claims, damages or liabilities
referred to in Section 3.1 above in such proportion as is appropriate to reflect
the following: (A) in the case of any Broker-Dealer which did not furnish
Computational Materials as provided in Section 2.3 hereof (i) in such proportion
as is appropriate to reflect the relative benefits received by IndyMac ABS
on
the one hand and the Broker-Dealers on the other from the offering of the
Offered Certificates or (ii) if the allocation provided by clause (i) above
is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of IndyMac ABS on the one hand and the Broker-Dealers on the
other in connection with the statements or omissions or alleged statements
or
alleged omissions which resulted in such losses, claims, damages or liabilities
as well as any other relevant equitable considerations; or (B) in the case
of
any Broker-Dealer which did so furnish Computational Materials, (i) the relative
benefits received by IndyMac ABS on the one hand and the Broker-Dealers on
the
other from the offering of the Offered Certificates and (ii) the relative fault
of IndyMac ABS on the one hand and the Broker-Dealers on the other in connection
with the statements or omissions or alleged statements or alleged omissions
which resulted in such losses, claims, damages or liabilities as well as any
other relevant equitable considerations. The relative benefits received by
IndyMac ABS on the one hand and the Broker-Dealers on the other shall be in
such
proportion so that the Broker-Dealers are responsible for an amount equal to
the
sum of the Senior Spread, the Subordinate Spread and the Purchase Spread and
IndyMac ABS is responsible for the balance. The relative benefits received
by
the Senior Underwriter, the Subordinate Underwriter and the Purchaser shall
be
the Senior Spread, in the case of the Senior Underwriter, the Subordinate
Spread, in the case of the Subordinate Underwriter and the Purchase Spread,
in
the case of the Purchaser. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omissions or alleged omission to state a material fact
relates to information supplied by IndyMac ABS or by the Broker-Dealers and
the
parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this Section 3.2 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 Section 3.2. A Broker-Dealer shall not be required to contribute
any amount in excess of (x) the Senior Spread, in the case of the Senior
Underwriter, the Subordinate Spread, in the case of the Subordinate Underwriter,
or the Purchase Spread, in the case of the Purchaser, over (y) the amount of
any
damages which the applicable Broker-Dealer has otherwise been required to pay
by
reason of such untrue or alleged untrue statement or omission or alleged
omission; provided,
however,
that if
the statements or omissions or alleged statements or alleged omissions which
resulted in contribution were contained in or omitted from Derived Information
filed on the Form 8-K, the preceding limitation on contribution shall be
inapplicable to the Broker-Dealer which furnished such Derived Information.
The
obligation of any Broker-Dealer to contribute under this Section 3.2 is several
in proportion to the Senior Spread, the Subordinate Spread and the Purchase
Spread, respectively. 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.
3.3. Benefits.
The
obligations of IndyMac ABS under this Article III shall be in addition to any
liability which IndyMac ABS may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls a Broker-Dealer
within the meaning of the Act; and the obligations of each Broker-Dealer under
this Article III shall be in addition to any liability which such Broker-Dealer
may otherwise have and shall have extended upon the same terms and conditions,
to the officers of IndyMac ABS who signed the Registration Statement or any
amendment thereof, to its directors, and to each person who controls IndyMac
ABS
within the meaning of either the Act or the Exchange Act.
3.4. Seller
Obligation.
The
Seller agrees with each Broker-Dealer, for the sole and exclusive benefit of
such Broker-Dealer and each person who controls a Broker-Dealer within the
meaning of either the Act or the Exchange Act and not for the benefit of any
assignee thereof or any other person or persons dealing with such Broker-Dealer,
to indemnify and hold harmless each Broker-Dealer and each person who controls
a
Broker-Dealer within the meaning of either the Act or the Exchange Act against
any failure by IndyMac ABS to perform any of its obligations under this
Agreement, the Underwriting Agreement or the Purchase Agreement. The Seller
agrees that there are no conditions precedent to the obligations of the Seller
hereunder other than written demand to IndyMac ABS to perform its obligations
under this Agreement, the Underwriting Agreement or the Purchase
Agreement.
ARTICLE
IV
Expenses
4.1. Other
Expenses.
Any
costs
and expenses incurred in connection with the qualification of any of the Offered
Certificates under the “blue sky” or securities laws of any state shall be paid
by the Broker-Dealer requesting such action. Unless otherwise agreed to among
the Broker-Dealers, any advertising or “toABStone” expenses shall be paid by the
Broker-Dealer incurring the same. Each Broker-Dealer shall be responsible for
all other costs and expenses incurred by it in connection with the purchase
and
sale of the Offered Certificates.
4.2. OID
Calculations.
If
a
Broker-Dealer fails to provide IndyMac ABS with original issue discount (“OID”)
calculations within five business days after the Closing Date for any
Certificates purchased by such Broker-Dealer, such Broker-Dealer agrees to
reimburse the Trust Fund for any penalties actually imposed on the Trust Fund
resulting from not having the OID information or for having such information
late.
ARTICLE
V
General
5.1. Survival.
This
Agreement and the obligations of the parties hereunder shall survive the
purchase and sale of the Offered Certificates and any termination of the
Underwriting Agreement and/or the Purchase Agreement.
5.2. Successors.
This
Agreement will inure to the benefit of and be binding upon the parties hereto
and their respective successors and the officers, directors and controlling
persons referred to in Article III hereof and their respective successors and
assigns, and no other person will have any right or obligation
hereunder.
5.3. Applicable
Law.
This
Agreement will be governed by and construed in accordance with the laws of
the
State of New York, disregarding principles of conflict of laws.
5.4. Miscellaneous.
Neither
this Agreement nor any term hereof may be changed, waived, discharged or
terminated except by a writing signed by the party against whom enforcement
of
such change, waiver, discharge or termination is sought. This Agreement may
be
signed in any number of counterparts, each of which shall be deemed an original,
which taken together shall constitute one and the same instrument.
5.5. Notices.
All
communications hereunder shall be in writing and effective only on receipt
and,
if sent to a Broker-Dealer, shall be delivered to the address specified on
the
signature page hereof; or if sent to IndyMac ABS, shall be delivered to 0000
Xxxx Xxxxxxxx Xxxxxxxxx, Xxxxxxxx, XX 00000, attention of Secondary
Marketing.
*
* * * *
* *
IN
WITNESS WHEREOF, the parties have executed this Agreement by their duly
authorized officers on the date first above written.
|
INDYMAC
ABS, INC.
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
Address:
|
0000
Xxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxx,
Xxxxxxxxxx 00000
|
|
|
INDYMAC
BANK, F.S.B.
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
Address:
|
000
Xxxx Xxxxxx Xxxxxx
Xxxxxxxx,
Xxxxxxxxxx 00000
|
|
|
[UNDERWRITER]
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
Address:
|
||
