EXHIBIT 1.2
INDYMAC MBS 1999-__
INDEMNIFICATION
AND
CONTRIBUTION AGREEMENT
AGREEMENT, dated ________________, 1999 (this "Agreement"), among
IndyMac MBS, Inc., a Delaware corporation (the "Depositor"), the Seller (as
defined below) and the Broker Dealers (as defined below).
WITNESSETH:
WHEREAS, the Depositor and one or more of the Broker Dealers are parties
to the Underwriting Agreement (defined below), providing for the sale by the
Depositor and the purchase, severally and not jointly, by such Broker Dealers of
the Public Certificates (defined below); and
WHEREAS, the Depositor and one or more of the Broker Dealers are parties
to a Purchase Agreement (defined below), providing for the sale by the Depositor
and the purchase, severally and not jointly, of the Private Certificates
(defined below); and
WHEREAS, as an inducement to the Broker Dealers to enter into the
Underwriting Agreement and the Purchase Agreement, the Depositor 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 the Depositor to the Seller
for the Mortgage Loans will be the proceeds of the sale by the Depositor 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
the Purchase Agreement, 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 _________________, 1999
as the same may be amended or supplemented, of the Depositor 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 the Depositor or the Seller.
Certificates: Mortgage Pass-Through Certificates, Series 1999-__
of IndyMac MBS, Inc.
Closing Date: On or about _________________, 1999.
Computational Materials: Computer generated tables and/or charts
displaying, with respect to any Class or Classes of Certificates, any of the
following: yield; average life; duration; expected maturity; interest rate
sensitivity; loss sensitivity; cash flow characteristics; background information
regarding the Mortgage Loans; the proposed structure; decrement tables; or
similar information (tabular or otherwise) of a statistical, mathematical,
tabular or computational nature.
Depositor: IndyMac MBS, Inc., a Delaware corporation and its
successors in interest.
Depositor Memorandum Information: All information contained or
incorporated in the Memorandum other than the Purchaser Information.
Depositor Prospectus Information: All information contained or
incorporated in the Prospectus other than the Senior Underwriter Information,
the Mezzanine Underwriter Information and the PO Underwriter Information.
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Depositor Registration Information: All information contained or
incorporated in the Registration Statement.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Form 8-K: The Current Report on Form 8-K, if any, filed by or on
behalf of the Depositor with respect to the Mortgage Loans and including any
Computational Materials furnished by one or more of the Broker Dealers.
Memorandum: The Confidential Private Placement Memorandum, if
any, dated the Closing Date, as the same may be amended or supplemented, of the
Depositor relating to the Related Private Certificates.
Mezzanine Certificates: The ________________________
Certificates.
Mezzanine Spread: The excess, if any, of (i) the purchase prices
paid by investors to the Mezzanine Underwriter for the Mezzanine Certificates
over (ii) the purchase price paid by the Mezzanine Underwriter to the Depositor
for the Mezzanine Certificates pursuant to the Underwriting Agreement.
Mezzanine Underwriter: The Broker Dealer which is purchasing the
Mezzanine Certificates pursuant to the Underwriting Agreement.
Mezzanine Underwriter Information: The only written information
furnished by or on behalf of the Mezzanine Underwriter to the Depositor
specifically for use in connection with the preparation of the Registration
Statement or the Prospectus, such information being (i) the information relating
to the Mezzanine Underwriter set forth in the Prospectus Supplement under the
caption "Method of Distribution" therein and (ii) any Computational Materials
prepared by the Mezzanine Underwriter, furnished to the Depositor and included
in the Form 8-K; provided, however, that such Computational 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.
Offered Certificates: The Public Certificates.
PO Underwriter: The Broker Dealer, if any, which is purchasing
the Class PO Certificates, if any, pursuant to the Underwriting Agreement.
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 the Depositor for the Class PO
Certificates pursuant to the Underwriting Agreement.
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PO Underwriter Information: The only written information
furnished by or on behalf of the PO Underwriter to the Depositor 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 the Depositor and included in the Form 8-K; provided,
however, that such Computational 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.
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 the Depositor relating to
the offering of the Public Certificates.
Public Certificates: The Senior Certificates and the Mezzanine
Certificates.
Purchase Agreement: The Purchase Agreement, if any, dated the
date hereof, between the Depositor and the Purchaser providing for the purchase
and sale of the Private Certificates, if any.
Purchase Spread: The excess, if any, of (i) the purchase prices
paid by investors to the Purchaser for the Private Certificates over (ii) the
purchase price paid by the Purchaser to the Depositor for the Private
Certificates pursuant to the Purchase Agreement.
Purchaser: The Broker Dealer, if any, which is purchasing the
Private Certificates, if any, pursuant to the Purchase Agreement.
Purchaser Information: The only written information furnished by
or on behalf of the Purchaser to the Depositor 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 __________________ Certificates.
Seller: IndyMac, Inc., a Delaware corporation and its successors
in interest.
Seller Mortgage Loan Information: Information relating to the
Mortgage Loans furnished by the Seller to the Senior Underwriter, Mezzanine
Underwriter, or PO Underwriter, as
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applicable, upon which the mathematical calculations reflected in the
Computational Materials of such Senior Underwriter, Mezzanine Underwriter or PO
Underwriter, as applicable, are based.
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, other
than the Retained Certificates, over (ii) the purchase price paid by the Senior
Underwriter to the Depositor for such Senior Certificates pursuant to the
Underwriting Agreement.
Senior Underwriter: The Broker Dealer which is purchasing the
Senior Certificates, other than the Retained Certificates, pursuant to the
Underwriting Agreement.
Senior Underwriter Information: The only written information
furnished by or on behalf of the Senior Underwriter to the Depositor
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 Computational Materials
prepared by the Senior Underwriter, furnished to the Depositor and included in
the Form 8-K; provided, however, that such Computational 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.
Underwriting Agreement: The Underwriting Agreement, dated the
date hereof, among the Depositor, the Senior Underwriter, the PO Underwriter and
the Mezzanine Underwriter providing for the purchase and sale of the Public
Certificates, other than the Retained 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.
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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) The Depositor 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.
2.3 Computational Materials.
Each Broker Dealer which desires to furnish Computational
Materials to the Depositor shall furnish fifteen (15) copies thereof to Xxxxx &
Xxxx LLP no later than 3:00 p.m. New York City time on the business day prior to
the day on which the Prospectus Supplement is being cleared for printing. In
addition, each Broker Dealer which has so furnished Computational Materials to
the Depositor hereby represents as to the materials it has furnished as follows:
(a) The Computational Materials so furnished by such Broker Dealer
include all Computational Materials prepared by such Broker Dealer that:
(i) are generated based on assumptions regarding the
payment priorities and characteristics of a Class of Certificates
that is actually issued and purchased by a Broker Dealer; and
(ii) are provided to prospective investors under the
following conditions prior to the time of filing of the
Prospectus pursuant to Rule 424(b):
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(A) in the case of each prospective investor that has
orally indicated to such Broker Dealer that it will
purchase all or a portion of the Class of Certificates to
which such Computational Materials relate, the
Computational Materials relating to such Class that are
sent to such prospective investor; and
(B) for any other prospective investor, all Computational
Materials that are sent to such prospective investor after
the structure for the Certificates is finalized;
provided, however, that the Computational Materials so furnished
need not include any Computational Materials that relate to
abandoned structures or that are furnished to prospective
investors prior to the time that the structure of the
Certificates is finalized where such investors have not indicated
to such Broker Dealer their intention to purchase the Class or
Classes of Certificates described in such Computational
Materials.
(b) The Computational Materials included in the Senior
Underwriter Information, the Mezzanine Underwriter Information or the PO
Underwriter Information, as applicable, pursuant to the definitions thereof do
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 Computational Materials and the
Senior Underwriter Information, the Mezzanine 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 Computational Materials 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 Computational Materials
were prepared by the applicable Broker Dealer in reliance on information
regarding the Mortgage Loans furnished by the Issuer.
(d) Neither the Depositor nor any of its affiliates participated
in the preparation of the Computational Materials other than by supplying the
Seller Mortgage Loan Information to the Broker Dealer.
(e) At or prior to the time any Computational Materials are
furnished to the Depositor for filing on the Form 8-K, the Broker Dealer
furnishing such Computational Materials will provide to the Depositor and such
Broker Dealer a letter, in form and substance reasonably satisfactory to the
Depositor and such Broker Dealer, of a firm of independent public
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accountants of national reputation to the effect that such accountants have
performed certain specified procedures with respect to such Computational
Materials and have found no exceptions, other than such exceptions as are
acceptable to the Depositor and the Broker Dealer. Fifty percent (50%) of the
costs and expenses of such letter will be paid by each of the Broker Dealer
obtaining the same and the Depositor.
ARTICLE III
Indemnification
3.1 Indemnification.
(a) The Depositor 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
Depositor Memorandum Information, the Depositor Prospectus Information or the
Depositor 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 Depositor Registration Information, the Depositor
Prospectus 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 Depositor Memorandum Information, the
Depositor Prospectus Information or the Depositor 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 the Depositor 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 Mezzanine Underwriter Information or the
Purchaser Information, as applicable, and (ii) in the case of the Depositor
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 the Depositor 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 the Depositor may otherwise have.
(b) Each Broker Dealer severally agrees to indemnify and hold
harmless the Depositor, its officers who signed the Registration Statement or
any amendment thereof, its
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directors, and each person who controls the Depositor within the meaning of
either the Act or the Exchange Act, to the same extent as the foregoing
indemnities from the Depositor 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 PO Underwriter
Information, in the case of the PO Underwriter, (iii) the Mezzanine Underwriter
Information, in the case of the Mezzanine 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 Computational Materials included in
the Senior Underwriter Information, the PO Underwriter Information or the
Mezzanine Underwriter Information, as the case may be, pursuant to the
definitions thereof shall be determined by reading such Computational Materials
in conjunction with the Prospectus as an integral document and in light of the
circumstances under which such statements in the Computational Materials and
Prospectus were made. This indemnity agreement will be in addition to any
liability which any Broker Dealer may otherwise have.
(c) The Senior Underwriter agrees to indemnify and hold harmless
each other Broker Dealer and each person who controls such a Broker Dealer
within the meaning of the Act or the Exchange Act, to the same extent as the
indemnities from the Depositor to each Broker Dealer in Section 3.1(a);
provided, however, that the Senior Underwriter 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
the Senior Underwriter Information; and provided, further, that any such
omission or alleged omission relating to the Computational Materials included in
the Senior Underwriter Information pursuant to the definition thereof shall be
determined by reading such Computational Materials in conjunction with the
Prospectus as an integral document and in light of the circumstances under which
such statements in the Computational Materials and Prospectus were made. This
indemnity agreement will be in addition to any liability which the Senior
Underwriter may otherwise have.
(d) The PO Underwriter agrees to indemnify and hold harmless each
other Broker Dealer and each person who controls such a Broker Dealer within the
meaning of the Act or the Exchange Act, to the same extent as the indemnities
from the Depositor to each Broker Dealer in Section 3.1(a); provided, however,
that the PO Underwriter 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 the PO Underwriter
Information; and provided, further, that any such omission or alleged omission
relating to the Computational Materials included in the PO Underwriter
Information pursuant to the definition thereof shall be determined by reading
such Computational Materials in conjunction with the Prospectus as an integral
document and in light of the circumstances under which such statements in the
Computational Materials and Prospectus were made. This indemnity agreement will
be in addition to any liability which the PO Underwriter may otherwise have.
(e) The Mezzanine Underwriter agrees to indemnify and hold
harmless each other Broker Dealer and each person who controls such a Broker
Dealer within the meaning of
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the Act or the Exchange Act, to the same extent as the indemnities from the
Depositor to each Broker Dealer in Section 3.1(a); provided, however, that the
Mezzanine Underwriter 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 the Mezzanine
Underwriter Information; and provided, further, that any such omission or
alleged omission relating to the Computational Materials included in the
Mezzanine Underwriter Information pursuant to the definition thereof shall be
determined by reading such Computational Materials in conjunction with the
Prospectus as an integral document and in light of the circumstances under which
such statements in the Computational Materials and Prospectus were made. This
indemnity agreement will be in addition to any liability which the Mezzanine
Underwriter may otherwise have.
(f) The Purchaser agrees to indemnify and hold harmless each
other Broker Dealer and each person who controls such a Broker Dealer within the
meaning of the Act or the Exchange Act to the same extent as the indemnities
from the Depositor to each Broker Dealer in Section 3.1(a); provided, however,
that the Purchaser 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 the Purchaser Information. This
indemnity agreement will be in addition to any liability which the Purchaser may
otherwise have.
(g) 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
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Underwriter, the Mezzanine 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.
(a) If the indemnification provided for in Section 3.1 is
unavailable or insufficient to hold harmless an indemnified party under Section
3.1(a)-(f), 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
the Depositor 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 the Depositor 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 the Depositor on the one hand
and the Broker Dealers on the other from the offering of the Offered
Certificates and (ii) the relative fault of the Depositor 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 the Depositor 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 Mezzanine Spread and the Purchase Spread and the
Depositor is responsible for the balance. The relative benefits received by the
Senior Underwriter, the PO Underwriter, the Mezzanine 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 Mezzanine Spread, in the case
of the Mezzanine 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 the Depositor or by the Broker Dealers and the parties'
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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(a) 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). 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 Mezzanine Spread, in the case
of the Mezzanine 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 Computational
Materials filed on the Form 8-K, the preceding limitation on contribution shall
be inapplicable to the Broker Dealer which furnished such Computational
Materials. 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 Mezzanine
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.
(b) Each Broker Dealer, severally and not jointly, agrees to
contribute to the losses, claims, damages or liabilities paid or incurred by any
other Broker Dealer to the extent such other Broker Dealer has paid or incurred
losses, claims, damages or liabilities in excess of the Senior Spread, in the
case of the Senior Underwriter, the PO Spread, in the case of the PO
Underwriter, the Mezzanine Spread, in the case of the Mezzanine Underwriter or
the Purchase Spread, in the case of the Purchaser but such contribution
obligation shall not exceed the product of such excess and a fraction the
numerator of which is the Senior Spread, the Mezzanine Spread, the PO Spread or
the Purchase Spread, as applicable, and the denominator of which is the sum of
the Senior Spread, the Mezzanine Spread, the PO Spread and the Purchase Spread;
provided, however, that if any Broker Dealer defaults in its obligation to any
other Broker Dealer hereunder, each non-defaulting Broker Dealer shall
contribute to the payment of the defaulted obligations in accordance with the
fraction set forth above; and provided, further that if a Broker Dealer is
required to contribute an amount in excess of the Senior Spread, the PO Spread,
the Mezzanine Spread or the Purchase Spread, as applicable, because such Broker
Dealer's Computational Materials resulted in the contribution, the other Broker
Dealers shall not be required to contribute in excess of the Senior Spread, the
PO Spread, the Mezzanine Spread or the Purchase Spread, as applicable.
3.3 Benefits.
The obligations of the Depositor under this Article III shall be
in addition to any liability which the Depositor 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
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liability which such Broker Dealer may otherwise have and shall have extended
upon the same terms and conditions, to the officers of the Depositor who signed
the Registration Statement or any amendment thereof, to its directors, and to
each person who controls the Depositor 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 the Depositor to perform any of its
obligations under this Agreement. The Seller agrees that there are no conditions
precedent to the obligations of the Seller hereunder other than written demand
to the Depositor to perform its obligations under this 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.
4.2 OID Calculations.
If a Broker Dealer fails to provide the Depositor 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 incurred by the
Trust Fund resulting from the failure of the Trust Fund to legend the
Certificates with OID information or for any delay in legending, as well as for
any other penalties actually imposed on the Trust Fund resulting from not having
the OID information or for having such information late.
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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 the Depositor,
shall be delivered to 000 Xxxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000,
Attention:
**********
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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:
INDYMAC, INC.
By:_____________________________
Name:
Title:
Address: 000 Xxxxx Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
----------------------------------
(Underwriter/Purchaser)
By: ___________________________________
Name:
Title:
Address: ________________________
________________________
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