Exhibit 1.2
INDEMNIFICATION
AND
CONTRIBUTION AGREEMENT
AGREEMENT, dated [ ] (this "Agreement"), among IndyMac MBS, Inc.,
a Delaware corporation ("IndyMac MBS"), the Seller (as defined below) and the
Broker-Dealers (as defined below).
WITNESSETH:
WHEREAS, IndyMac MBS and one or more of the Broker-Dealers are
parties to the Underwriting Agreement (defined below), providing for the sale by
IndyMac MBS and the purchase, severally and not jointly, by such Broker-Dealers
of the Public Certificates (defined below); and
WHEREAS, IndyMac MBS and one or more of the Broker-Dealers are
parties to the Purchase Agreement (defined below), providing for the sale by
IndyMac MBS 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 MBS
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 MBS to the Seller
for the Mortgage Loans will be the proceeds of the sale by IndyMac MBS 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 MBS 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 MBS or the Seller.
Certificates: Mortgage Pass-Through Certificates, [ ] of
IndyMac MBS.
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 MBS 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 MBS: IndyMac MBS, Inc., a Delaware corporation and its
successors in interest.
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IndyMac MBS Memorandum Information: All information contained or
incorporated in the Memorandum other than the Purchaser Information.
IndyMac MBS Prospectus Information: All information contained or
incorporated in the Prospectus other than the Senior Underwriter Information,
the Subordinate Underwriter Information and the PO Underwriter Information.
IndyMac MBS 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
MBS 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.
PO Spread: The excess, if any, of (i) the purchase prices paid by
investors to the PO Underwriter for the Class PO Certificates over (ii) the
purchase price paid by the PO Underwriter to IndyMac MBS for the Class PO
Certificates pursuant to the Underwriting Agreement.
PO Underwriter: The Broker-Dealer, if any, which is purchasing the
Class PO Certificates, if any, pursuant to the Underwriting Agreement.
PO Underwriter Information: As to the PO Underwriter, the written
information furnished by or on behalf of the PO Underwriter to IndyMac MBS
specifically for use in connection with the preparation of the Registration
Statement or the Prospectus, such information being (i) the information relating
to the PO Underwriter set forth in the Prospectus Supplement under the caption
"Method of Distribution" therein and (ii) any Computational Materials prepared
by the PO Underwriter, furnished to IndyMac MBS and included in the Form 8-K;
provided, however, that such Derived Materials shall not include any Seller
Mortgage Loan Information or any errors in the mathematical calculations
reflected in such Computational Materials to the extent such errors result from
such Seller Mortgage Loan Information.
Private Certificates: The [ ] Certificates.
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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 MBS 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 MBS 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 MBS 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 MBS 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 MBS 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 MBS specifically for use in
connection with the
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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
MBS 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 MBS 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 MBS
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 MBS and included in a Form
8-K.
Underwriting Agreement: The Underwriting Agreement, dated the date
hereof, among IndyMac MBS, the Senior Underwriter, the PO 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, e.g., the
Senior Underwriter also may be the PO Underwriter. 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:
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(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 MBS 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 (euro)43,000,000 and (3) an annual net revenue of more than
(euro)50,000,000, as shown in its last annual or consolidated financial
statements; or
(iii) in any other circumstances that do not require the publication
by the Depositor of a prospectus pursuant to Article 3 of the Prospectus
Directive.
For the purposes of this provision, the expression an "offer of
Certificates of that Class to the public" in relation to any Class of
Certificates, which Class has a minimum denomination of less than $100,000, in
any Relevant Member State means the communication in any form and by any means
of sufficient information on the terms of the offer and the Certificates to be
offered so as to enable an investor to decide to purchase or subscribe the
Certificates of that Class, as the same may be varied in that Member State by
any measure implementing the Prospectus Directive in that Member State, and the
expression "Prospectus
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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 Sidley Xxxxxx Xxxxx
& Xxxx 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, the Subordinate Underwriter Information or the PO 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, the Subordinate Underwriter Information or the PO
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 MBS 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 MBS for filing on Form 8-K, the Broker-Dealer furnishing such materials
will provide to IndyMac MBS and such Broker-Dealer a letter, in form and
substance reasonably satisfactory to IndyMac MBS 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
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such materials and have found no exceptions, other than such exceptions as are
acceptable to IndyMac MBS 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 MBS.
ARTICLE III
Indemnification
3.1. Indemnification.
(a) IndyMac MBS 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 MBS Memorandum Information, the IndyMac MBS Prospectus Information or
the IndyMac MBS 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 MBS Memorandum Information, the IndyMac MBS
Prospectus Information or the IndyMac MBS 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 MBS Memorandum Information, the IndyMac MBS Prospectus
Information or the IndyMac MBS 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 MBS 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 PO
Underwriter Information, the Subordinate Underwriter Information or the
Purchaser Information, as applicable, and (ii) in the case of the IndyMac MBS
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 MBS 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 MBS may otherwise have.
(b) Each Broker-Dealer severally agrees to indemnify and hold
harmless IndyMac MBS, its officers who signed the Registration Statement or any
amendment thereof, its directors, and each person who controls IndyMac MBS
within the meaning of either the Act or the Exchange Act, to the same extent as
the foregoing indemnities from IndyMac MBS to each Broker-Dealer; provided,
however, that a Broker-Dealer will be liable in any such case only to
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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 PO
Underwriter Information, in the case of the PO Underwriter, (iii) the
Subordinate Underwriter Information, in the case of the Subordinate Underwriter
and (iv) 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, the PO 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 PO 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
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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 MBS 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 MBS 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 MBS 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 MBS 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 MBS 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 PO Spread, the Subordinate Spread and the Purchase
Spread and IndyMac MBS is responsible for the balance. The relative benefits
received by the Senior Underwriter, the PO Underwriter, the Subordinate
Underwriter and the Purchaser shall be the Senior Spread, in the case of the
Senior Underwriter, the PO Spread, in the case of the PO 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 MBS 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 PO Spread, in the case of the PO 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
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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 PO 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 MBS under this Article III shall be in
addition to any liability which IndyMac MBS 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 MBS who signed the Registration
Statement or any amendment thereof, to its directors, and to each person who
controls IndyMac MBS 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 MBS 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 MBS 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 "tombstone"
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.
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4.2. OID Calculations.
If a Broker-Dealer fails to provide IndyMac MBS 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 MBS, shall be
delivered to 0000 Xxxx Xxxxxxxx Xxxxxxxxx, Xxxxxxxx, XX 00000, attention of
Secondary Marketing.
* * * * * * *
-12-
IN WITNESS WHEREOF, the parties have executed this Agreement by
their duly authorized officers on the date first above written.
INDYMAC MBS, INC.
By: ______________________________________
Name:
Title:
Address: 0000 Xxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
INDYMAC BANK, F.S.B.
By: ______________________________________
Name:
Title:
Address: 0000 Xxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
[ ]
By: ______________________________________
Name:
Title:
Address: 000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
