EXHIBIT 1.1
INDYMAC ABS, INC.
ASSET-BACKED SECURITIES
(Issuable in Series)
UNDERWRITING AGREEMENT
[ ]
[Name of Representative]
as Representative on behalf of the Underwriters
[Address]
[Address]
[Address]
Ladies and Gentlemen:
IndyMac ABS, Inc., a corporation organized and existing under the laws of
the State of Delaware (the "Company"), proposes to cause the formation of
trusts (each, a "Trust") from time to time and to offer for sale from time to
time its Asset-Backed Securities evidencing interests in pools of certain
contracts and mortgage loans (the "Securities"). The Securities may be issued
in various series, and within each series, in one or more classes, in one or
more offerings on terms determined at the time of sale (each such series, a
"Series" and each such class, a "Class"). Each Trust may issue one or more
classes of Asset-Backed Notes (the "Notes") pursuant to an Indenture to be
dated as of the respective cut-off date for the related loans or contracts
conveyed to such Trust as described below (each such cut-off date, a "Cut-off
Date") as may be supplemented by one or more supplements to such Indenture
(such Indenture, as supplemented by such supplements (if any), the
"Indenture") between the related Trust and the indenture trustee named therein
(the "Indenture Trustee"). Simultaneously with the issuance of the Notes (or
in lieu of issuing Notes), the Trust may issue Asset-Backed Certificates (the
"Certificates"), each representing a fractional undivided ownership interest
in the related Trust, pursuant to the Trust Agreement establishing such Trust
(each, a "Trust Agreement") to be dated as of the respective Cut-off Date
among the Company, the seller named therein (the "Seller") and the owner
trustee named therein (the "Owner Trustee"). Alternatively, each Trust may
issue one or more Classes of Certificates, each evidencing a fractional
undivided interest in the related Trust, pursuant to a Pooling and Servicing
Agreement (each, a "Pooling and Servicing Agreement") to be dated as of the
respective Cut-off Date among the Company, the seller and the master servicer
named therein (the "Master Servicer") and the trustee named therein (the
"Trustee").
The assets of each Trust (the "Trust Assets") will consist primarily of
one or more pools of fixed- or adjustable-rate single family mortgage loans
("SFMLs") or closed-end or revolving home equity loans ("HELs"), as specified
in the related Terms Agreement referred to below. The Trust Assets will be
serviced by the Master Servicer pursuant to the terms of the related Pooling
and Servicing Agreement or a sale and servicing agreement to be dated as of
the respective Cut-off Date (each, a "Sale and Servicing Agreement"), among
the Trust, the Master Servicer, the Company and the Indenture Trustee.
If and to the extent specified in the related Transaction Documents (as
defined below), in addition to the Trust Assets conveyed to the Trust on the
Closing Date (such Trust Assets so conveyed to the Trust at such time, the
"Initial Trust Assets"), the Company may convey to the Trust, from time to
time during the period commencing after the Closing Date and ending at the
expiration of the period specified in such Transaction Documents (each such
period, a "Pre-Funding Period")(the date of any such conveyance, a "Subsequent
Transfer Date"), additional Trust Assets (any such additional Trust Assets so
conveyed to the Trust through the Pre-Funding Period, the "Subsequent Trust
Assets").
The Securities may have the benefit of one or more insurance policies
(each, a "Policy") issued by the securities insurer named therein (the
"Securities Insurer") pursuant to an insurance and indemnity agreement among
the Company, the Seller and the Securities Insurer (each, an "Insurance
Agreement").
The Trust Agreement, the Sale and Servicing Agreement, the Indenture, the
Insurance Agreement and the Pooling and Servicing Agreement are sometimes
referred to herein individually as a "Transaction Document" and collectively
as the "Transaction Documents." Capitalized terms used and not otherwise
defined herein shall have the meanings assigned thereto in the related
Transaction Documents.
Underwritten offerings of Securities may be made through you or through
an underwriting syndicate managed by you. The Company proposes to sell one or
more Series of the Securities (or one or more Classes of each such series of
Securities) to you and to each of the other several underwriters, if any,
participating in an underwriting syndicate managed by you.
Whenever the Company determines to make an offering of Securities (each,
an "Offering") pursuant to this Underwriting Agreement through you, it will
enter into an agreement (the "Terms Agreement", and collectively with this
Underwriting Agreement, this "Agreement") providing for the sale of specified
Classes of Offered Securities (as defined below) to, and the purchase and
public offering thereof by, you and such other underwriters, if any, selected
by you as have authorized you to enter into such Terms Agreement on their
behalf (the underwriters designated in any such Terms Agreement being referred
to herein as "Underwriters," which term shall include you and each Underwriter
specified in the related Terms Agreement whether acting alone in the sale of
any Offered Securities of any Series or as a member of an underwriting
syndicate). Each such Offering which the Company elects to make pursuant to
this Agreement shall be governed by this Agreement, and this Agreement shall
inure to the benefit of and be binding upon each Underwriter with respect to
such Offering. Each Terms Agreement, which shall be substantially in the form
of Exhibit A hereto, shall specify, among other things, the nature of the
related Trust Assets, the Classes of Securities to be purchased by the
Underwriters (the "Offered Securities"), whether such Offered Securities
constitute Notes or Certificates, the principal balance or balances of the
Offered Securities, each subject to any stated variance, the names of the
Underwriters participating in such Offering (subject to substitution as
provided in Section 12 hereof) and the price or prices at which such Offered
Securities are to be purchased by the Underwriters from the Company.
1. Representations and Warranties. The Company represents and warrants to
and agrees with the Underwriters, as of the date of the applicable Terms
Agreement, that:
(i) The registration statement specified in the related Terms
Agreement, on Form S-3, including a prospectus, has been filed with the
Securities and Exchange Commission (the "Commission") for the
registration under the Securities Act of 1933, as amended (the "Act"), of
asset-backed securities issuable in series, which registration statement
has been declared effective by the Commission. As of the Closing Date (as
hereinafter defined), no stop order suspending the effectiveness of such
registration statement has been issued and no proceedings for that
purpose have been initiated or to the Company's knowledge threatened by
the Commission. The prospectus in the form in which it will be used in
connection with the offering of the Offered Securities of the applicable
Series is proposed to be supplemented by a prospectus supplement dated
the date of the related Terms Agreement relating to the Offered
Securities of the applicable Series and, as so supplemented, to be filed
with the Commission pursuant to Rule 424 under the Act. (Such
registration statement is hereinafter referred to as the "Registration
Statement"; such prospectus supplement, as first filed with the
Commission, is hereinafter referred to as the "Prospectus Supplement";
and such prospectus, in the form in which it will first be filed with the
Commission in connection with the offering of the Offered Securities of
the applicable Series, including documents incorporated therein as of the
time of such filing and as supplemented by the Prospectus Supplement, is
hereinafter referred to as the "Prospectus"). Any preliminary prospectus,
including any preliminary prospectus supplement which, as completed, is
proposed to be used in connection with the sale of a Series of Offered
Securities and any prospectus filed with the Commission pursuant to Rule
424(a) of the Act, is hereinafter referred to as a "Preliminary
Prospectus"; provided that if no preliminary prospectus is proposed to be
used in connection with the sale of a Series of Offered Securities,
references herein to "Preliminary Prospectus" shall be disregarded when
used with respect to such Series of Offered Securities. Any reference
herein to the Registration Statement, a Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which
were filed under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") on or before the date on which the Registration
Statement, as amended, became effective or the issue date of such
Preliminary Prospectus or the date on which the Prospectus is filed
pursuant to Rule 424(b) under the Act, as the case may be; and any
reference herein to the terms "amend", "amendment" or supplement with
respect to the Registration Statement, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the date on which the Registration
Statement became effective or the issue date of any Preliminary
Prospectus or the date on which the Prospectus is filed pursuant to Rule
424(b) under the Act.
(ii) The related Registration Statement, at the time it became
effective, and the Prospectus contained therein, and any amendments
thereof and supplements thereto filed prior to the date of the related
Terms Agreement, conformed in all material respects to the requirements
of the Act and the rules and regulations of the Commission thereunder; on
the date of the related Terms Agreement and on the related Closing Date
(as defined in Section 3 below), the related Registration Statement and
the related Prospectus, and any amendments thereof and supplements
thereto, will conform in all material respects to the requirements of the
Act and the rules and regulations of the Commission thereunder and, to
the extent the Offered Securities of the applicable Series include Notes,
the rules and regulations under the Trust Indenture Act of 1939, as
amended (the "TIA"); such Registration Statement, at the time it became
effective, did not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; such Prospectus, on the
date of any filing pursuant to Rule 424(b) and on the related Closing
Date, will not include any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which
they are made, not misleading; provided, however, that the Company makes
no representations or warranties as to the information contained in or
omitted from such Registration Statement or such Prospectus (or any
supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the Underwriters
specifically for use in the preparation thereof.
(iii) The Offered Securities of the related Series will conform in
all material respects to the descriptions thereof contained in the
related Prospectus, and each of such Offered Securities, when validly
authenticated, issued and delivered in accordance with the applicable
Transaction Documents, will be duly and validly issued and outstanding
and entitled to the benefits of the applicable Transaction Document. Each
Offered Security of the Classes indicated to be "mortgage related
securities" under the heading "Summary of Terms--Legal Investment" in the
related Prospectus Supplement will, when issued, be a "mortgage related
security" as such term is defined in Section 3(a)(41) of the Exchange
Act.
(iv) This Agreement has been duly authorized, executed and delivered
by the Company. As of the applicable Closing Date, each Transaction
Document to which the Company is a party will have been duly authorized,
executed and delivered by the Company and will conform in all material
respects to the respective descriptions thereof contained in the related
Prospectus and, assuming the valid execution and delivery thereof by the
other parties thereto, this Agreement and each Transaction Document to
which the Company is a party will constitute a legal, valid and binding
agreement of the Company enforceable in accordance with its terms, except
as the same may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting creditors' rights generally and by general
principles of equity.
(v) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware
with corporate power and authority to own its properties and conduct its
business as described in the related Prospectus and to enter into and
perform its obligations under the Transaction Documents to which it is a
party and this Agreement.
(vi) Neither the issuance or delivery of the Offered Securities of
the applicable Series, nor the consummation of any other of the
transactions contemplated herein, nor compliance with the provisions of
the Transaction Documents to which the Company is a party or this
Agreement, will conflict with or result in the breach of any material
term or provision of, and the Company is not in breach or violation of or
in default (nor has an event occurred which with notice or lapse of time
or both would constitute a default) under the terms of, (i) the
certificate of incorporation or by-laws of the Company, (ii) any
indenture, contract, lease, mortgage, deed of trust, note, agreement or
other evidence of indebtedness or other agreement, obligation or
instrument to which the Company is a party or by which it or its
properties are bound, or (iii) any law, decree, order, rule or regulation
applicable to the Company of any court or supervisory, regulatory,
administrative or governmental agency, body or authority, or arbitrator
having jurisdiction over the Company, or its properties, the default in
or the breach or violation of which would have a material adverse effect
on the Company or the Offered Securities of the related Series or the
ability of the Company to perform its obligations under the Transaction
Documents to which the Company is a party or this Agreement; and neither
the delivery of the Offered Securities of the related Series, nor the
consummation of any other of the transactions contemplated herein, nor
the compliance with the provisions of the Transaction Documents to which
it is a party or this Agreement will result in such a breach, violation
or default which would have such a material adverse effect.
(vii) No filing or registration with, notice to, or consent,
approval, authorization or order or other action of any court or
governmental authority or agency is required for the consummation by the
Company of the transactions contemplated by this Agreement or the
Transaction Documents to which it is a party (other than as required
under "blue sky" or state securities laws, as to which no representations
and warranties are made by the Company), except such as have been, or
will have been prior to the applicable Closing Date, obtained under the
Act, and such recordations of the assignment of the Trust Assets to the
Trustee or Indenture Trustee, as applicable (to the extent such
recordations are required pursuant to the Transaction Documents) that
have not yet been completed.
(viii) There is no action, suit or proceeding before or by any
court, administrative or governmental agency now pending to which the
Company is a party, or to the best of the Company's knowledge threatened
against the Company, which could reasonably result individually or in the
aggregate in any material adverse change in the condition (financial or
otherwise), earnings, affairs, regulatory situation or business prospects
of the Company or could reasonably interfere with or materially and
adversely affect the consummation of the transactions contemplated in the
related Transaction Documents or this Agreement.
(ix) At the time of execution and delivery of the Transaction
Documents for the related Series of Offered Securities, (1) the Company
will own the Trust Assets being transferred to the Trust pursuant
thereto, free and clear of any lien, mortgage, pledge, charge,
encumbrance, adverse claim or other security interest (collectively,
"Liens"), except to the extent permitted in the applicable Transaction
Documents, and will not have assigned to any person other than the Trust
any of its right, title or interest, in the Trust Assets, (2) the Company
will have the power and authority to transfer the Trust Assets to the
Trust and to transfer the Offered Securities of the related Series to the
Underwriters, and (3) upon execution and delivery of the related
Transaction Documents, and delivery of the related Offered Securities to
the Company, the Trust will own the Trust Assets free of Liens other than
Liens permitted or created by the applicable Transaction Documents or
created or granted by the Underwriters and (4) upon payment and delivery
of the Offered Securities of the related Series to the Underwriters, the
Underwriters will acquire ownership of such Offered Securities, free of
Liens other than Liens created or granted by the Underwriters.
(x) Any taxes, fees and other governmental charges in connection
with the execution, delivery and issuance of this Agreement, the
applicable Transaction Documents and the Offered Securities of the
applicable Series have been or will be paid by the Company at or prior to
the applicable Closing Date, except for fees for recording assignments of
the Trust Assets to the Trustee or Indenture Trustee, as applicable,
pursuant to the applicable Transaction Documents that have not yet been
completed, which fees will be paid by or on behalf of the Company in
accordance with the applicable Transaction Documents.
(xi) The Master Servicer or any subservicer who will be servicing
any Trust Assets pursuant to the applicable Transaction Documents is
qualified to do business in all jurisdictions in which its activities as
servicer or subservicer of the Trust Assets serviced by it require such
qualification except where failure to be so qualified will not have a
material adverse effect on such servicing activities.
(xii) The Company is not doing business with Cuba.
(xiii) If the Offered Securities of the applicable Series include
Notes, at or prior to the related Closing Date, the Trust will have
entered into the related Indenture, Trust Agreement and any Insurance
Agreement, if any, and, assuming the due authorization, execution and
delivery thereof by the other parties thereto, such Indenture, such Trust
Agreement and such Insurance Agreement (on such Closing Date) will
constitute the valid and binding agreement of the Trust enforceable in
accordance with its terms, subject, as to enforceability, to bankruptcy,
insolvency, reorganization or other similar laws affecting creditors'
rights and to general principles of equity (regardless of whether the
enforceability of such Indenture, such Trust Agreement or such Insurance
Agreement is considered in a proceeding in equity or at law.)
(xiv) Neither the Company, the Trust nor any funds or accounts
established thereunder is an "investment company" (as defined in the
Investment Company Act of 1940, as amended (the "1940 Act")) or is under
the "control" (as such term is defined in the 1940 Act) of an "investment
company" that is registered or required to be registered under, or is
otherwise subject to the provisions of, the 1940 Act.
(xv) If the Offered Securities of the applicable Series include
Notes, the Indenture has been qualified under the TIA.
2. Purchase and Sale. Subject to the execution of the Terms Agreement for
a particular Offering and subject to the terms and conditions and in reliance
upon the representations and warranties set forth in this Agreement and such
Terms Agreement, the Company agrees to sell to each Underwriter, severally and
not jointly, and each Underwriter, severally and not jointly, agrees to
purchase from the Company, the respective original principal amounts of the
related Offered Securities set forth in the related Terms Agreement opposite
the name of such Underwriter, plus any additional original principal amount of
Offered Securities which such Underwriter may be obligated to purchase
pursuant to Section 12 hereof, at the purchase price therefor set forth in
such Terms Agreement (the "Purchase Price").
The parties hereto agree that settlement for all securities sold pursuant
to this Agreement shall take place on the terms set forth herein and not as
set forth in Rule 15c6-1(a) under the Exchange Act.
3. Delivery and Payment. Delivery of and payment for the Offered
Securities of a Series shall be made at the offices of Brown & Wood LLP, One
World Trade Center, New York, New York 10048 at 10:00 a.m. New York City time,
on the Closing Date specified in the related Terms Agreement, which date and
time may be postponed by agreement between the Underwriters and the Company
(such date and time being herein called the "Closing Date"). Delivery of such
Offered Securities shall be made to the Underwriters against payment by the
Underwriters of the Purchase Price thereof to or upon the order of the Company
by wire transfer in federal or other immediately available funds. Unless
delivery is made through the facilities of The Depository Trust Company, the
Offered Securities shall be registered in such names and in such authorized
denominations as the Underwriters may request not less than two full business
days in advance of the applicable Closing Date.
The Company agrees to notify the Underwriters at least two business days
before the applicable Closing Date of the exact principal balance evidenced by
the Offered Securities and to have such Offered Securities available for
inspection, checking and packaging in New York, New York, no later than 12:00
noon on the business day prior to such Closing Date.
4. Offering by the Underwriters. It is understood that the Underwriters
propose to offer the Offered Securities of the related Series for sale to the
public as set forth in the related Prospectus and that the Underwriters will
not offer, sell or otherwise distribute such Offered Securities (except for
the sale thereof in exempt transactions) in any state in which such Offered
Securities are not exempt from registration under "blue sky" or state
securities laws (except where such Offered Securities will have been qualified
for offering and sale at the Representative's direction under such "blue sky"
or state securities laws).
5. Agreements. The Company agrees with each Underwriter that:
(a) The Company will cause each of the Preliminary Prospectus and
the Prospectus relating to the Offered Securities of the applicable
Series to be filed in compliance with Rule 424 under the Act and, if
necessary, within 15 days of the applicable Closing Date, will file a
report on Form 8-K setting forth specific information concerning the
Trust Assets and will promptly advise each Underwriter when such
Preliminary Prospectus and such Prospectus as so supplemented have been
so filed, and prior to the termination of the Offering to which such
Preliminary Prospectus and Prospectus relate also will promptly advise
each Underwriter (i) when any amendment to the related Registration
Statement specifically relating to such Offered Securities shall have
become effective or any further supplement to such Preliminary Prospectus
or such Prospectus has been filed, (ii) of any request by the Commission
for any amendment of such Registration Statement, Preliminary Prospectus
or Prospectus or for any additional information, (iii) of the issuance by
the Commission of any stop order suspending the effectiveness of such
Registration Statement or the institution or threatening of any
proceeding for that purpose and (iv) of the receipt by the Company of any
written notification with respect to the suspension of the qualification
of such Offered Securities for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose. The Company will not
file any amendment of the related Registration Statement or supplement to
the related Preliminary Prospectus or Prospectus (other than any
amendment or supplement specifically relating to one or more Series of
asset-backed securities other than the Series that includes the related
Offered Securities) unless (i) the Company has given reasonable notice to
the Underwriters of its intention to file any such amendment or
supplement, (ii) the Company has furnished the Underwriters with a copy
for their review within a reasonable time prior to filing, and (iii) the
Underwriters do not reasonably object to the filing of such amendment or
supplement. The Company will use its best efforts to prevent the issuance
of any such stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the Offered
Securities of the applicable Series is required to be delivered under the
Act, any event occurs as a result of which the related Prospectus as then
amended or supplemented would include any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, or if it shall be necessary
at any time to amend or supplement the related Prospectus to comply with
the Act, the TIA or the rules thereunder, the Company promptly will
prepare and file with the Commission, subject to paragraph (a) of this
Section 5, an amendment or supplement which will correct such statement
or omission or an amendment which will effect such compliance.
(c) The Company will furnish to each Underwriter and counsel
for the Underwriters, without charge, as many conformed copies of the
related Registration Statement (including exhibits thereto) and, so long
as delivery of a prospectus by the Underwriters or a dealer may be
required by the Act, as many copies of the related Preliminary Prospectus
and the related Prospectus and any supplements thereto, as the
Underwriters may reasonably request.
(d) The Company will, as between itself and the Underwriters, pay
all expenses incidental to the performance of its obligations under this
Agreement, including without limitation (i) expenses of preparing,
printing and reproducing the related Registration Statement, the related
Preliminary Prospectus, the related Prospectus, the Transaction Documents
and the Offered Securities, (ii) the cost of delivering the Offered
Securities of the applicable Series to the Underwriters, insured to the
reasonable satisfaction of the Underwriters, (iii) the fees charged by
securities rating services for rating the Offered Securities of the
applicable Series, (iv) the fees and expenses of the Trustee, the Owner
Trustee and/or the Indenture Trustee, as applicable, except for fees and
expenses of their respective counsel which will be borne by them and (v)
all other costs and expenses incidental to the performance by the Company
of the Company's obligations hereunder which are not otherwise
specifically provided for in this subsection. It is understood that,
except as provided in this paragraph (d) and in Section 13 hereof, each
Underwriter will pay all of its own expenses, including (i) the fees of
any counsel to such Underwriter, (ii) any transfer taxes on resale of any
of the Offered Securities by it, (iii) any advertising expenses connected
with any offers that such Underwriter may make and (iv) any expenses for
the qualification of the Offered Securities of the applicable Series
under "blue sky" or state securities laws, including filing fees and the
fee and disbursements of counsel in connection therewith and in
connection with the preparation of any Blue Sky Survey.
(e) So long as any Offered Securities of the applicable Series are
outstanding, upon request of any Underwriter, the Company will, or will
cause the Master Servicer to, furnish to such Underwriter, as soon as
available, a copy of (i) the annual statement of compliance delivered by
the Master Servicer pursuant to the applicable Transaction Document, (ii)
the annual independent public accountants' servicing report furnished
pursuant to the applicable Transaction Document, (iii) each report of the
Company regarding the Offered Securities of the applicable Series filed
with the Commission under the Exchange Act or mailed to the holders of
such Offered Securities and (iv) from time to time, such other
information concerning such Offered Securities which may be furnished by
the Company or the Master Servicer without undue expense and without
violation of applicable law.
(f) The Company will furnish such information, execute such
instruments and take such actions as may be reasonably requested by the
Underwriters to qualify the Offered Securities of a Series for sale under
the laws of such jurisdictions as the Underwriters may designate, to
maintain such qualifications in effect so long as required for the
distribution of such Offered Securities and to determine the legality of
such Offered Securities for purchase by investors; provided, however,
that the Company shall not be required to qualify to do business in any
jurisdiction where it is not qualified on the date of the related Terms
Agreement or to take any action which would subject it to general or
unlimited service of process or corporate or franchise taxation as a
foreign corporation in any jurisdiction in which it is not, on the date
of the related Terms Agreement, subject to such service of process or
such taxation.
(g) The Company will cause any Computational Materials, Structural
Term Sheets and Collateral Term Sheets (each as defined in Section 9
below) with respect to the Offered Securities of a Series that are
delivered by an Underwriter to the Company pursuant to Section 8 to be
filed with the Commission on Form 8-K pursuant to Rule 13a-11 under the
Exchange Act in accordance with the No Action Letters.
(h) The Company will timely file all reports with respect to the
Trust required to be filed under the Exchange Act, as such requirements
may be modified by any no-action relief granted to or relied upon by the
Company and any formal or informal interpretations thereof by the
Commission.
6. Conditions to the Obligations of the Underwriters. The several
obligations of the Underwriters to purchase the Offered Securities of any
Series shall be subject to the accuracy in all material respects of the
representations and warranties on the part of the Company contained in this
Agreement, as of the date of the applicable Terms Agreement and the related
Closing Date, to the accuracy of the statements of the Company, made in any
applicable officers' certificates pursuant to the provisions hereof, to the
performance by the Company of its obligations under this Agreement and the
applicable Transaction Documents and to the following additional conditions
applicable to the related Offering:
(a) No stop order suspending the effectiveness of the related
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened and the related
Prospectus shall have been filed or mailed for filing with the Commission
not later than required pursuant to the rules and regulations of the
Commission.
(b) The Company shall have furnished to the Underwriters a
certificate, dated the related Closing Date, of the Company, signed by a
[vice president] of the Company, to the effect that the signer of such
certificate has carefully examined the related Registration Statement,
the related Prospectus and this Agreement and that:
(i) The representations and warranties of the Company herein
are true and correct in all material respects on and as of such Closing
Date with the same effect as if made on such Closing Date, and the
Company has complied with all agreements and satisfied all the conditions
on its part to be performed or satisfied at or prior to such Closing
Date;
(ii) No stop order suspending the effectiveness of the related
Registration Statement has been issued, and no proceedings for that
purpose have been instituted and are pending or, to his knowledge, have
been threatened as of such Closing Date; and
(iii) Nothing has come to the attention of such person that
would lead him to believe that the related Prospectus (other than any
Current Report incorporated by reference therein) contains any untrue
statement of a material fact or omits to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(c) The Seller shall have furnished to the Underwriters a
certificate, dated the related Closing Date, of the Seller, signed by a
vice president or an assistant vice president of the Seller, to the
effect that (i) the signer of such certificate has carefully examined the
related Prospectus and nothing has come to the attention of such person
that would lead him to believe that such Prospectus contains any untrue
statement of a material fact with respect to the Seller or omits to state
any material fact with respect to the Seller or the Trust Assets
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading and (ii) the
Seller has complied with all agreements and satisfied all the conditions
on its part to be performed or satisfied at or prior to such Closing Date
under this Agreement and the Transaction Documents to which it is a
party.
(d) The Company shall have furnished to you an opinion, dated the
related Closing Date, of Brown & Wood LLP, special counsel to the
Company, to the effect that:
(i) The related Registration Statement and any amendments
thereto have become effective under the Act; to the best knowledge of
such counsel, no stop order suspending the effectiveness of such
Registration Statement has been issued and not withdrawn, no proceedings
for that purpose have been instituted or threatened and not terminated;
and such Registration Statement, the related Prospectus and each
amendment or supplement thereto, as of their respective effective or
issue dates (other than the financial and statistical information
contained therein as to which such counsel need express no opinion),
complied as to form in all material respects with the applicable
requirements of the Act and the rules and regulations thereunder and, if
the applicable Series of Offered Securities includes Notes, with the
requirements of the TIA and the rules and regulations thereunder;
(ii) To the best knowledge of such counsel, there are no
material contracts, indentures or other documents of a character required
to be described or referred to in the related Registration Statement or
the related Prospectus or to be filed as exhibits to such Registration
Statement other than those described or referred to therein or filed or
incorporated by reference as exhibits thereto;
(iii) Assuming that this Agreement and each Transaction
Document to which the Company and/or the Seller is a party have each been
duly authorized, executed and delivered by the parties thereto, each
constitutes a valid, legal and binding agreement of the Company and the
Seller, as applicable, enforceable against the Company or the Seller in
accordance with its terms, subject, as to enforceability to bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and to general principles of equity
regardless of whether enforcement is sought in a proceeding in equity or
at law; and subject to limitations of public policy under applicable
securities laws as to rights of indemnity and contribution thereunder;
(iv) Assuming that the Offered Securities of the applicable
Series have been duly and validly authorized, executed and authenticated
in the manner contemplated in the relevant Transaction Documents, when
delivered and paid for by the Underwriters as provided in this Agreement,
such Offered Securities will be validly issued and outstanding and
entitled to the benefits of the related Transaction Documents and, if
such Offered Securities include Notes, such Notes will constitute the
valid, legal and binding obligation of the Trust, enforceable against the
Trust in accordance with their terms subject, as to enforceability, to
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and to general principals of equity
regardless of whether enforcement is sought in a proceeding in equity or
at law;
(v) The Offered Securities of the related Series and the
related Transaction Documents conform to the descriptions thereof
contained in the related Prospectus;
(vi) The statements in the related Prospectus and Prospectus
Supplement, as the case may be, under the headings "Federal Income Tax
Consequences," "ERISA Considerations" and "Legal Investment," to the
extent that they constitute matters of New York or federal law or legal
conclusions with respect thereto, have been reviewed by such counsel and
are correct in all material respects;
(vii) The Offered Securities, if any, indicated under the
heading "Summary of Terms--Legal Investment" in the related Prospectus
Supplement to be "mortgage related securities" will be mortgage related
securities, as defined in Section 3(a)(41) of the Exchange Act, so long
as such Offered Securities are rated in one of the two highest rating
categories by at least one nationally recognized statistical rating
organization;
(viii) Either (a) the Pooling and Servicing Agreement is not
required to be or (b) the Indenture has been, duly qualified under the
TIA, and, in either case, the Trust is not required to be registered
under the Investment Company Act of 1940, as amended;
(ix) If one or more "real estate mortgage investment conduit"
("REMIC") elections are indicated in the related Prospectus Supplement,
the Trust as described in such Prospectus Supplement will qualify as a
REMIC within the meaning of Section 860D of the Internal Revenue Code of
1986, as amended (the "Code") and the indicated Classes of such
Securities will be considered "regular interests" in the REMIC, assuming:
(i) an election is made to treat the Trust as a REMIC, (ii) compliance
with the applicable Transaction Documents and (iii) compliance with
changes in the law, including any amendments to the Code or applicable
Treasury regulations thereunder; and
(x) If the related Prospectus Supplement indicates that one or
more Classes of Offered Securities are to be treated as debt of the Trust
for federal income tax purposes, such Classes will be treated as debt for
federal income tax purposes and the Trust will not be considered to be a
publicly traded partnership or a taxable mortgage pool.
Such counsel shall also state that nothing has come to its attention that
would lead such counsel to believe that the related Registration Statement, at
the time it became effective, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that the related Prospectus,
as of the date of the related Prospectus Supplement, and on the related
Closing Date, contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; it being understood that such counsel need express no
view as to (i) financial and statistical information contained therein or (ii)
any description in such Prospectus of any Securities Insurer with respect to
the related Offered Securities.
Such opinion may express its reliance as to factual matters on the
representations and warranties made by, and on certificates or other documents
furnished by officers of, the parties to this Agreement and the applicable
Transaction Documents. Such opinion may be qualified as an opinion only on the
laws of the State of New York and the federal law of the United States. To the
extent that such firm relies upon the opinion of other counsel in rendering
any portion of its opinion, the opinion of such other counsel shall be
attached to and delivered with the opinion of such firm that is delivered to
you.
(e) The Company shall have furnished to the Underwriters an opinion,
dated the related Closing Date, of counsel to the Company (who may be an
employee of the Company or of an affiliate of the Company), to the effect
that:
(i) The Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the State of Delaware
and is duly qualified to do business in, and is in good standing as a
foreign corporation under the laws of, the State of California;
(ii) The Offered Securities of the applicable Series have been
duly authorized and executed and, assuming authentication and delivery in
the manner contemplated in the relevant Transaction Documents, are
validly issued and outstanding, and upon delivery by the Company of the
Offered Securities to be purchased by the Underwriters and payment by the
Underwriters of the Purchase Price therefor in the manner contemplated by
this Agreement, the Underwriters will acquire such Offered Securities
free and clear of any lien, pledge, encumbrance or other security
interest other than one created or granted by any Underwriter;
(iii) Each Transaction Document to which the Company is a party
has been duly authorized, executed and delivered by the Company;
(iv) This Agreement has been duly authorized, executed and
delivered by the Company;
(v) No consent, approval, authorization or order of any
California or federal governmental agency or body or any California or
federal court is required for the consummation by the Company of the
transactions contemplated by the terms of this Agreement or the
Transaction Documents to which the Company is a party except such as may
be required under the "blue sky" or state securities laws of any
jurisdiction in connection with the offering, sale or acquisition of the
related Offered Securities, any recordations of the assignment of the
Trust Assets to the Trustee or the Indenture Trustee, as applicable (to
the extent such recordations are required pursuant to the Transaction
Documents) that have not yet been completed and such other approvals as
have been obtained;
(vi) The sale of the Offered Securities to be purchased by the
Underwriters pursuant to this Agreement and the consummation of any of
the transactions contemplated by the terms of the Transaction Documents
or this Agreement do not conflict with or result in a breach or violation
of any material term or provision of, or constitute a default under, the
certificate of incorporation or by-laws of the Company, or any indenture
or other agreement or instrument to which the Company is a party or by
which it is bound, or any California or federal statute or regulation
applicable to the Company or an order of any California or federal court,
regulatory body, administrative agency or governmental body having
jurisdiction over the Company; and
(vii) There are no legal or governmental actions,
investigations or proceedings pending to which the Company is a party,
or, to the best knowledge of such counsel, threatened against the
Company, (A) asserting the invalidity of this Agreement, the Transaction
Documents or the Offered Securities, (B) seeking to prevent the issuance
of the Offered Securities or the consummation of any of the transactions
contemplated by this Agreement or the Transaction Documents, (C) which
might materially and adversely affect the performance by the Company of
its obligations under, or the validity or enforceability of, this
Agreement, the Transaction Documents or the Offered Securities or (D)
seeking to affect adversely the federal income tax attributes of the
Offered Securities as described in the related Prospectus under the
heading "Federal Income Tax Consequences." For purposes of the foregoing,
such counsel may state that it has not regarded any legal or governmental
actions, investigations or proceedings to be "threatened" unless the
potential litigant or governmental authority has manifested to the legal
department of the Company a present intention to initiate such
proceedings.
Such opinion may express its reliance as to factual matters on the
representations and warranties made by, and on certificates or other documents
furnished by officers of, the parties to this Agreement and the Transaction
Documents. Such opinion may assume the due authorization, execution and
delivery of the instruments and documents referred to therein by the parties
thereto other than the Company or its affiliates. Such opinion may be
qualified as an opinion only on the General Corporation Law of the State of
Delaware, the laws of the State of California and the federal law of the
United States. To the extent that such counsel relies upon the opinion of
other counsel in rendering any portion of its opinion, the opinion of such
other counsel shall be attached to and delivered with the opinion of such
counsel that is delivered to the Underwriters.
(f) The Seller shall have furnished to the Underwriters an opinion,
dated the related Closing Date, of counsel to the Seller (who may be an
employee of the Seller), to the effect that:
(i) The Seller has been duly incorporated and is validly
existing as a federal savings bank in good standing under the laws of the
United States;
(ii) The related Terms Agreement and the Transaction Documents
to which the Seller is a party have each been duly authorized, executed
and delivered by the Seller;
(iii) No consent, approval, authorization or order of any
[California] or federal court or governmental agency or body is required
for the consummation by the Seller of the transactions contemplated by
the terms of this Agreement, or the Transaction Documents except any such
as may be required under the "blue sky" or state securities laws of any
jurisdiction in connection with the offering, sale or acquisition of the
Offered Securities, any recordations of the assignment of the Trust
Assets to the Trustee or the Indenture Trustee, as applicable (to the
extent such recordations are required pursuant to the Transaction
Documents), that have not yet been completed and any approvals as have
been obtained;
(iv) The consummation of any of the transactions contemplated
by the terms of this Agreement or the Transaction Documents do not
conflict with or result in a breach or violation of any material term or
provision of, or constitute a default under, the charter or by-laws of
the Seller, or, to the best knowledge of such counsel, any indenture or
other agreement or instrument to which the Seller is a party or by which
it is bound, any [California] or federal statute or regulation applicable
to the Seller or any order of any [California] or federal court,
regulatory body, administrative agency or governmental body having
jurisdiction over the Seller; and
(v) There are no legal or governmental actions, investigations
or proceedings pending to which the Seller is a party, or, to the best
knowledge of such counsel, threatened against the Seller, (A) asserting
the invalidity of the related Terms Agreement or the Transaction
Documents or (B) which might materially and adversely affect the
performance by the Seller of its obligations under, or the validity or
enforceability of, the related Terms Agreement or the Transaction
Documents. For purposes of the foregoing, such counsel may state that it
has not regarded any legal or governmental actions, investigations or
proceedings to be "threatened" unless the potential litigant or
governmental authority has manifested to the legal department of the
Seller a present intention to initiate such proceedings.
Such opinion may express its reliance as to factual matters on the
representations and warranties made by, and on certificates or other documents
furnished by officers of, the parties to the Transaction Documents. Such
opinion may assume the due authorization, execution and delivery of the
instruments and documents referred to therein by the parties thereto other
than the Seller. Such opinion may be qualified as an opinion only on the laws
of [California] and the federal law of the United States. To the extent that
such counsel relies upon the opinion of other counsel in rendering any portion
of its opinion, the opinion of such other counsel shall be attached to and
delivered with the opinion of such counsel that is delivered to the
Underwriters.
(g) Each party providing credit enhancement to the Offered
Securities shall have furnished to the Underwriters an opinion, dated the
related Closing Date, of its counsel, with respect to the related
Registration Statement and the related Prospectus, and such other related
matters, in the form previously agreed to by such provider and the
Underwriters.
(h) The Underwriters shall have received from their counsel such
opinion or opinions, dated the related Closing Date, with respect to the
issuance and sale of the Offered Securities, the related Registration
Statement and the related Prospectus, and such other related matters as
the Underwriters may reasonably require.
(i) The Company's independent accountants, Deloitte & Touche LLP,
and Grant Thornton shall each have furnished to the Underwriters a letter
or letters addressed to the Underwriters and dated as of or prior to the
date of first use of the related Prospectus Supplement in the form and
reflecting the performance of the procedures previously agreed to by the
Company and the Underwriters.
(j) Subsequent to the date of the applicable Terms Agreement, there
shall not have occurred any change, or any development involving a
prospective change, in or affecting the business or properties of the
Company or any of its affiliates which in the Representative's reasonable
judgment materially impairs the investment quality of the related Offered
Securities so as to make it impractical or inadvisable to proceed with
the public offering or the delivery of the related Offered Securities as
contemplated by the related Prospectus.
(k) The Classes of Offered Securities of the applicable Series shall
be rated not lower than the required ratings set forth under the heading
"Ratings" in the Prospectus Supplement, such ratings shall not have been
rescinded and no public announcement shall have been made that any such
required rating of the Offered Securities has been placed under review
(otherwise than for possible upgrading).
(l) The Underwriters shall have received copies of any opinions of
counsel to the Company supplied to the rating organizations relating to
certain matters with respect to the related Offered Securities. Any such
opinions shall be dated the applicable Closing Date and addressed to the
Underwriters or accompanied by reliance letters addressed to the
Underwriters.
(m) All Classes of Offered Securities being publicly offered by the
Underwriters or privately placed by an initial purchaser shall have been
issued and paid for pursuant to the terms of this Agreement and any
related purchase agreement, respectively.
(n) Counsel for each of the Trustee, the Owner Trustee and the
Indenture Trustee, as applicable, shall have furnished to the
Underwriters an opinion, dated the related Closing Date, in form and
substance that is customary and reasonably acceptable to the Underwriters
regarding certain matters relating to each of the Trustee, the Owner
Trustee and the Indenture Trustee, as applicable.
In addition, counsel for the Owner Trustee shall furnish to the
Underwriters such opinions as to the treatment of the Trust for purposes of
state tax law where the Owner Trustee maintains possession of the Trust Assets
as are customary and reasonably satisfactory to the Underwriters.
(o) The Policy relating to the Offered Securities of the related
Series, if any, shall have been duly executed and issued prior to the
Closing Date, in form and substance that is customary and reasonably
satisfactory to the Underwriters, and shall conform in all respects to
the description thereof in the Prospectus and the Underwriters shall have
received an officer's certificate and an opinion of counsel from the
Securities Insurer, in each case in form and substance that is customary
and reasonably satisfactory to the Underwriters.
(p) If applicable, on or prior to the Closing Date, there has been
no downgrading, nor shall any notice have been given of (i) any intended
or possible downgrading or (ii) any review or possible changes, the
direction of which has not been indicated, of the rating accorded the
Securities Insurer's claims paying ability by any "nationally recognized
statistical rating organization" (as such term is defined for purposes of
the Exchange Act).
(q) The Company shall have furnished to the Underwriters such
further information, certificates and documents as the Underwriters may
reasonably have requested, and all proceedings in connection with the
transactions contemplated by this Agreement and all documents incident
hereto shall be in all material respects reasonably satisfactory in form
and substance to the Underwriters and their counsel.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects with respect to the particular Offered
Securities of a Series when and as provided in this Agreement and the related
Terms Agreement, this Agreement (with respect to the related Offered
Securities) and the related Terms Agreement and all obligations of the
Underwriters hereunder (with respect to the related Offered Securities) and
thereunder may be canceled at, or at any time prior to, the related Closing
Date by the Underwriters. Notice of such cancellation shall be given to the
Company in writing, or by telephone or telegraph confirmed in writing.
7. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person who controls an Underwriter 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 Company Prospectus
Information or the Company 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 Company Registration
Information, the Company Prospectus Information or in any revision or
amendment thereof or supplement thereto a material fact required to be
stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, and
agrees to reimburse each such indemnified party for any legal or other
expenses reasonably incurred by it or him in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Company shall not be liable to a
particular Underwriter or any person who controls such Underwriter 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
Underwriter Information of such Underwriter and (ii) in the case of the
Company Prospectus Information, to the extent that such misstatement or
omission was corrected and such Underwriter 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 Company has previously
furnished copies thereof to the Underwriters in accordance with the terms
of this Agreement. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, its officers who signed the applicable Registration
Statement or any amendment thereof, its directors, and each person who
controls the Company within the meaning of either the Act or the Exchange
Act, to the same extent as the foregoing indemnities from the Company to
each Underwriter; provided, however, that an 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 Underwriter Information of such
Underwriter, and provided, further, that any such omission or alleged
omission relating to the Derived Information included in any Underwriter
Information, 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
Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 7 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 7, 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 7. 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
applicable Underwriter, in the case of paragraph (a) of this Section 7,
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.
(d) If the indemnification provided for in Section 7 is unavailable
or insufficient to hold harmless an indemnified party under Section 7(a)
or (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 7(a) or (b) above in such
proportion as is appropriate to reflect the following: (A) in the case of
any Underwriter which did not furnish Derived Information as provided in
Section 8 hereof (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the
Underwriters on the other from the offering of the Offered Securities 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 Company on the one hand and the Underwriters 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 Underwriter which did so
furnish Derived Information, (i) the relative benefits received by the
Company on the one hand and the Underwriters on the other from the
offering of the Offered Securities and (ii) the relative fault of the
Company on the one hand and the Underwriters 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 Company on the one hand and the Underwriters on
the other shall be in such proportion so that the Underwriters are
responsible for an amount equal to the amount of the loss multiplied by a
fraction, the numerator of which is the Spread and the denominator of
which is the initial public offering price as set forth on the Prospectus
Supplement and the Company is responsible for the balance. The relative
benefits received by an Underwriter shall be the Spread of such
Underwriter, in the case of each Underwriter. 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
Company or by the Underwriters 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 7(d) shall be deemed to include
any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any action or claim which
is the subject of this Section 7(d). An Underwriter shall not be required
to contribute any amount in excess of (x) the applicable Spread over (y)
the amount of any damages which the applicable Underwriter 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 Underwriter which furnished
such Derived Information. The obligation of any Underwriter to contribute
under this Section 7(d) is several in proportion to the applicable
Spread. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
(e) The obligations of the Company under this Section 7 shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls an Underwriter within the meaning of the Act or the Exchange
Act; and the obligations of each Underwriter under this Section 7 shall
be in addition to any liability which such Underwriter may otherwise have
and shall have extended upon the same terms and conditions, to the
officers of the Company who signed the applicable Registration Statement
or any amendment thereof, to its directors, and to each person who
controls the Company within the meaning of either the Act or the Exchange
Act.
8. Computational Materials, Structural Term Sheets or Collateral Term
Sheets. (a) Each Underwriter which has furnished Computational Materials,
Structural Term Sheets or Collateral Term Sheets to potential investors shall
furnish a copy thereof to Brown & Wood LLP (accompanied by the letter of
independent public accountants referred to in paragraph (c) of this Section 8)
no later than 3:00 p.m. New York City time on the business day prior to the
day on which such materials are required to be filed with the Securities and
Exchange Commission pursuant to the No-Action Letters.
(b) Each Underwriter which has so furnished Computational Materials,
Structural Term Sheets or Collateral Term Sheets hereby represents to the
Company as to the materials it has furnished as follows:
(i) The Computational Materials, Structural Term Sheets or
Collateral Term Sheets so furnished by such Underwriter to the Company
for filing include all Computational Materials, Structural Term Sheets or
Collateral Term Sheets prepared by such Underwriter that are required to
be filed with the Securities and Exchange Commission pursuant to the
terms of the No-Action Letters and that such Computational Materials,
Structural Term Sheets or Collateral Term Sheets comply with the
conditions for the use thereof set forth in the No-Action Letters.
(ii) Assuming the accuracy of the Seller Asset Information, the
Derived Information included in the Underwriter Information of such
Underwriter 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 the
Underwriter makes no representation that the Prospectus (exclusive of
such Derived Information and the Underwriter Information 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.
(iii) The Computational Materials, Structural Term Sheets or
Collateral Term Sheets 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 Trust Assets or the performance characteristics
of the Offered Securities, and a statement to the effect that the
Computational Materials, Structural Term Sheets or Collateral Term Sheets
were prepared by the applicable Underwriter in reliance on information
regarding the Trust Assets furnished by the Seller or the Company.
(iv) The Company did not participate in the preparation of the
Computational Materials, Structural Term Sheets or Collateral Term Sheets
other than by supplying the Seller Asset Information to the Underwriter.
(c) At or prior to the time any Computational Materials, Structural
Term Sheets or Collateral Term Sheets are furnished to the Company for
filing on the Form 8-K, the Underwriter furnishing such Computational
Materials, Structural Term Sheets or Collateral Term Sheets will provide
to the Company and such Underwriter a letter, in form and substance
reasonably satisfactory to the Company and such Underwriter, 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 Computational Materials, Structural Term Sheets or Collateral
Term Sheets and have found no exceptions, other than such exceptions as
are acceptable to the Company and the Underwriter.
9. Certain Defined Terms. The following terms shall have the meanings set
forth below, unless the context clearly indicates otherwise:
Collateral Term Sheets: As defined in the PSA Letter The term "Collateral
Term Sheet" as used herein includes any subsequent Collateral Term Sheet that
reflects a substantive change in the information presented from the previous
Collateral Term Sheet.
Computational Materials: Computer generated tables and/or charts
displaying, with respect to any Class or Classes of Offered Securities, any of
the following: yield; average life; duration; expected maturity; interest rate
sensitivity; loss sensitivity; cash flow characteristics; background
information regarding the Trust Assets; the proposed structure; decrement
tables; or similar information (tabular or otherwise) of a statistical,
mathematical, tabular or computational nature.
Company Prospectus Information: All information contained or incorporated
in the Prospectus other than the Underwriter Information.
Company Registration Information: All information contained or
incorporated in the Registration Statement.
Derived Information: Any portion of information delivered to the Company
by the Underwriters for inclusion in the Form 8-K that: (i) is not contained
in the Prospectus without taking into account information incorporated therein
by reference; (ii) does not constitute Seller Asset Information; and (iii) is
of the type of information defined as Collateral Term Sheets, Structural Term
Sheets or Computational Materials.
Form 8-K: The Current Report on Form 8-K, if any, filed by or on behalf
of the Company with respect to the Trust Assets and including any Derived
Information furnished by one or more of the Underwriters.
Kidder Letter: The May 17, 1994 letter of Brown & Wood on behalf of
Kidder, Peabody & Co. Inc. (which letter, and the SEC staff's response
thereto, were publicly available May 20, 1994).
No-Action Letters: The PSA Letter and the Kidder Letter.
PSA Letter: The letter dated February 13, 1995 of Cleary, Gottlieb, Steen
& Hamilton on behalf of the Public Securities Association (which letter, and
the SEC's response thereto, were publicly available on February 17, 1995).
Seller Asset Information: Information relating to the Trust Assets
furnished by the Seller to any Underwriter upon which the mathematical
calculations reflected in the Computational Materials, Structural Term Sheets
or Collateral Term Sheets of such Underwriter are based.
Spread: As to any Underwriter, the underwriting discount set forth on the
cover of the applicable Prospectus Supplement.
Structural Term Sheets: As defined in the PSA Letter.
Underwriter Information: As to any Underwriter, the only written
information furnished by or on behalf of such Underwriter to the Company
specifically for use in connection with the preparation of the related
Registration Statement or the Prospectus, such information being (i) the
information relating to such Underwriter set forth in the Prospectus
Supplement in the last paragraph of the cover page thereof and under the
caption "Method of Distribution" therein and (ii) any Derived Information
prepared by such Underwriter, furnished to the Company and included in the
Form 8-K; provided, however, that such Derived Information shall not include
any Seller Asset Information or any errors in the mathematical calculations
reflected in such Derived Information to the extent such errors result from
such Seller Asset Information.
10. Termination. This Agreement (with respect to a particular Offering)
and the related Terms Agreement shall be subject to termination in the
absolute discretion of the Underwriters, by notice given to the Company prior
to delivery of and payment for the related Offered Securities, if prior to the
related Closing Date (i) trading in securities generally on the New York Stock
Exchange shall have been suspended or materially limited, (ii) a general
moratorium on commercial banking activities in New York shall have been
declared by either federal or New York State authorities, or (iii) there shall
have occurred any outbreak or material escalation of hostilities or other
calamity or crisis the effect of which on the financial markets of the United
States is such as to make it, in the reasonable judgment of the Underwriters,
impracticable to market such Offered Securities.
11. Representations and Indemnities to Survive Delivery. The agreements,
representations, warranties, indemnities and other statements of the Company,
or its officers and of each Underwriter set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriters or the Company, or any
of the officers, directors or controlling persons referred to in Section 7
hereof, and will survive delivery of and payment for the related Offered
Securities. The provisions of Section 7 hereof shall survive the termination
or cancellation of this Agreement.
12. Default by One or More of the Underwriters. If one or more of the
Underwriters shall fail on the applicable Closing Date to purchase the Offered
Securities which it or they are obligated to purchase hereunder and under the
applicable Terms Agreement (the "Defaulted Securities"), you shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but
not less than all, of the Defaulted Securities in such amounts as may be
agreed upon and upon the terms set forth herein and in the applicable Terms
Agreement. If, however, you have not completed such arrangements within such
24-hour period, then:
(a) if the aggregate original principal balance of Defaulted
Securities equals or does not exceed 10% of the aggregate original
principal balance of the Offered Securities to be purchased pursuant to
such Terms Agreement, the non-defaulting Underwriters named in such Terms
Agreement shall be obligated to purchase the full amount thereof in the
proportions that their respective underwriting obligations thereunder
bear to the underwriting obligations of all non-defaulting Underwriters;
and
(b) if the aggregate original principal balance of Defaulted
Securities exceeds 10% of the aggregate original principal balance of the
Offered Securities to be purchased pursuant to such Terms Agreement, the
applicable Terms Agreement shall terminate without any liability on the
part of any non-defaulting Underwriter.
No action taken pursuant to this Section 12 and nothing in this Agreement
shall relieve any defaulting Underwriter from liability in respect of its
default.
In the event of any such default which does not result in a termination
of this Agreement either you or the Company shall have the right to postpone
the Closing Date for a period of time not exceeding seven days in order to
effect any required changes in the Registration Statement or in any other
documents or arrangements.
13. Reimbursement of Underwriter Expenses. If for any reason other than
default by an Underwriter in its obligation to purchase the Offered Securities
or termination by an Underwriter pursuant to Section 10 hereof, the Offered
Securities are not delivered by or on behalf of the Company as provided
herein, the Company will reimburse each Underwriter for all out-of-pocket
expenses of such Underwriter, including reasonable fees and disbursements of
its counsel, reasonably incurred by such Underwriter in making preparations
for the purchase, sale and delivery of the Offered Securities, but the Company
shall then be under no further liability to any Underwriter with respect to
the Offered Securities, except as provided in Section 5(d) hereof.
14. Seller Obligation. The Seller agrees with each Underwriter, for the
sole and exclusive benefit of such Underwriter and each person who controls
such Underwriter 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 Underwriter, to indemnify and hold harmless such Underwriter
and each person who controls such Underwriter within the meaning of either the
Act or the Exchange Act against any failure by the Company 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 Company to perform its obligations under this Agreement.
15. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and thereto and their respective successors
and the officers, directors and controlling persons referred to in Section 7
hereof, and their successors and assigns, and no other person will have any
right or obligation hereunder or thereunder. No purchaser of any Offered
Security from the Underwriters shall be deemed a successor or assign by reason
of such purchase.
16. APPLICABLE LAW. THIS AGREEMENT AND THE RELATED TERMS AGREEMENT WILL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED THEREIN.
17. Miscellaneous. (a) This Agreement supersedes all prior and
contemporaneous agreements and understandings relating to the subject matter
hereof. This Agreement or any term of this Agreement may not be changed,
waived, discharged or terminated except by an affirmative written agreement
made by the party against whom enforcement of the change, waiver, discharge or
termination is sought. The headings in this Agreement are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof or
thereof. This Agreement and any Terms Agreement may be executed in
counterparts, each of which shall be an original, all of which, taken
together, shall constitute one and the same instrument.
(b) Any costs and expenses incurred in connection with the
qualification of any of the Offered Securities under the "blue sky" or
securities laws of any state shall be paid by the Underwriter requesting
such action. Unless otherwise agreed to among the Underwriters, any
advertising or "tombstone" expenses shall be paid by the Underwriter
incurring the same. Each Underwriter shall be responsible for all costs
and expenses incurred by it in connection with the purchase and sale of
the Offered Securities.
(c) If an Underwriter fails to provide the Company with original
issue discount ("OID") calculations within five business days after the
applicable Closing Date for any Offered Securities purchased by such
Underwriter, such Underwriter agrees to reimburse the Trust for any
penalties actually incurred by the Trust resulting from the failure of
the Trust to legend the Offered Securities with OID information or for
any delay in legending, as well as for any other penalties actually
imposed on the Trust resulting from not having the OID information or for
having such information late.
18. Notices. All communications hereunder shall be in writing and
effective only on receipt and, if sent to an Underwriter, shall be delivered
to the address specified on page one hereof, or if sent to the Company or the
Seller, shall be delivered to [155 North Lake Avenue, Pasadena, CA 91101,
attention of General Counsel].
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the undersigned a counterpart hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company, the Seller and the Underwriters.
Very truly yours,
INDYMAC ABS, INC.
By:
----------------------------------
Name:
Title:
[INDYMAC BANK, F.S.B.], as Seller
By:
-----------------------------------
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
[Name of Representative],
as Representative on behalf of the Underwriters
By:
------------------------------------
Name:
Title:
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the undersigned a counterpart hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company, the Seller and the Underwriters.
Very truly yours,
INDYMAC ABS, INC.
By:
------------------------------------
Name:
Title:
[INDYMAC BANK, F.S.B.], as Seller
By:
------------------------------------
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
[Name of Representative],
as Representative on behalf of the Underwriters
By:
------------------------------------
Name:
Title:
EXHIBIT A
INDYMAC ABS, INC.
ASSET-BACKED SECURITIES
TERMS AGREEMENT
(to Underwriting Agreement,
dated __________________________
among the Company, and the Representative)
IndyMac ABS, Inc. ___________,200_
155 North Lake Avenue
Pasadena, CA 91101
This letter supplements and modifies the captioned Underwriting Agreement
(the "Underwriting Agreement") with respect to the Series _-_ Securities
solely as it relates to the purchase and sale of the Offered Securities
described below. The Series _-_ Securities are registered with the Securities
and Exchange Commission by means of an effective Registration Statement (No.
333-51609). Capitalized terms used and not defined herein have the meanings
given them in the Underwriting Agreement. Each of the undersigned Underwriters
agrees to be bound by the terms and provisions of the Underwriting Agreement
as supplemented by this Terms Agreement.
Section 1. The Trust Assets: The Trust Assets for the Series -_
Securities shall consist of [SFMLs or HELs] having the characteristics
described in the Prospectus Supplement dated the date hereof.
Section 2. The Securities: The Offered Securities shall be issued as
follows:
(a) Classes: The Offered Securities shall be issued with the
following Class designations, interest rates and principal balances,
subject in the aggregate to the variance referred to in the Prospectus:
Principal Interest Class Purchase
Class Balance Rate Price Percentage
----- ------- ----- ----------------
Each of the Underwriters agrees, severally and not jointly,
subject to the terms and provisions herein and of the captioned Underwriting
Agreement, to purchase the principal balances of the Classes of Series -_
Securities specified opposite its name below.
Class Underwriter Underwriter Underwriter Underwriter
----- ----------- ----------- ------------ -----------
(b) The Offered Securities shall have such other characteristics as
described in the related Prospectus.
Section 3. Purchase Price: The Purchase Price for each Class of the
Offered Securities shall be the Class Purchase Price Percentage therefor (as
set forth in Section 2(a) above) of the initial class principal balance
thereof plus accrued interest at the applicable interest rate per annum of
each such Class from and including the Cut-off Date up to, but not including,
(the "Closing Date").
Section 4. Securities Insurer:
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the undersigned a counterpart hereof,
whereupon this letter and your acceptance shall represent a binding agreement
between the Underwriters and the Company.
Very truly yours,
By:
------------------------------------
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
INDYMAC ABS, INC.
By:
------------------------------------
Name:
Title:
ACKNOWLEDGED BY:
----------------------------------------
By:
----------------------------------------
Name:
Title:
