Exhibit 1.1
7/6/98
INDYMAC ABS, INC.
ASSET-BACKED SECURITIES
(Issuable in Series)
UNDERWRITING AGREEMENT
_______________., _______, 1998
as Representative of the
several Underwriters
________________
New York, New York __________
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 (each, a "Cut-off Date") as supplemented by one or more
supplements to such Indenture (such Indenture, as supplemented, the "Indenture")
between the related Trust and the indenture trustee named therein (the
"Indenture Trustee"). Simultaneously with the issuance of the Notes, the Trust
may issue Asset-Backed Certificates (the "Certificates"), each representing a
fractional undivided ownership interest in the related Trust, pursuant to a
separate Trust Agreement (each, a "Trust Agreement") to be dated as of the
respective Cut-off Date among the Company, one or more affiliates of the Company
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 separate
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 named
therein (the "Seller"), 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, closed-end or revolving home
equity loans ("HELs"), home improvement contracts or loans ("HILs") or
manufactured housing contracts ("Contracts") 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, 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 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 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. 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 13 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. (a) The Company represents and
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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."
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, as the case may be, deemed to
be incorporated therein by reference.
(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, 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 might result in any
material adverse change in the financial condition, earnings, affairs
or business of the Company or which might materially and adversely
affect the properties or assets thereof or the legality or
enforceability of this Agreement or the Transaction Documents to which
it is a party or 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, 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) The Company possesses all material licenses,
certificates, authorities or permits issued by the appropriate state,
federal or foreign regulatory agencies or bodies necessary to conduct
the business now operated by it and as described in the related
Prospectus and the Company has received no notice of proceedings
relating to the revocation or modification of any such license,
certificate, authority or permit which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would
materially and adversely affect the business, operations, financial
condition or earnings of the Company.
(xiv) 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).
(xv) 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 ▇▇▇▇ ▇▇▇) of an
"investment company" that is registered or required to be registered
under, or is otherwise subject to the provisions of, the 1940 Act.
(xvi) If the Offered Securities of the applicable Series
includes Notes, the Indenture has been qualified under the TIA.
2. Purchase and Sale. Subject to the execution of the Terms Agreement
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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 13 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-l(a) under the Exchange Act.
3. Delivery and Payment. Delivery of and payment for the Offered
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Securities of a Series shall be made at the offices of ▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ 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
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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 Representatives direction under such "blue sky" or state securities
laws).
5. Agreements. The Company agrees with each Underwriter that:
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(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 Final 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 9 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 the Company.
6. Conditions to the Obligations of the Underwriters. The several
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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 ▇▇▇▇▇ & ▇▇▇▇ 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 relevant Transaction
Document, 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 the
Prospectus Supplement, as the case may be, under the headings "Certain
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
Document, 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, Delaware or federal governmental agency or body or any
California, Delaware 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 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, Delaware or federal
statute or regulation applicable to the Company or an order of any
California, Delaware 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 "Certain 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 laws of the States of Delaware and 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 corporation in good standing under the laws of the state
of its incorporation (the "Incorporation State");
(ii) This 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
Incorporation State 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 Incorporation State or
federal statute or regulation applicable to the Seller or any order of
any Incorporation State 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 this 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, this 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 the
Incorporation State 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 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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 your 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 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.
(p) On or prior to the applicable Closing Date, there shall have
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 and
originally requested by the Company relating to any previously issued
asset-backed securities of the Company by any "nationally recognized
statistical rating organization" (as such term is defined for purposes of
the Exchange Act).
(q) 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).
(r) The Company shall have furnished to the Underwriters such
further information, certificates an 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
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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
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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
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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
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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 ▇▇▇▇▇ & ▇▇▇▇ LLP 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
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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
▇▇▇▇▇▇ Letter: The May 17, 1994 letter of ▇▇▇▇▇ & ▇▇▇▇ on behalf
-------------
of ▇▇▇▇▇▇, 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 ▇▇▇▇▇▇ Letter.
-----------------
PSA Letter: The letter dated February 13, 1995 of ▇▇▇▇▇▇,
----------
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ 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 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
an 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 each Underwriter and each
person who controls each 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 the signature page hereof, or if sent to the Company or
the Seller, shall be delivered to ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇., ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
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, INC.
By: ________________________________
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above written.
_________________________________
as Representative of
the several Underwriters
By: ________________________________
Name:
Title:
Address:
EXHIBIT A
INDYMAC ABS, INC.
ASSET-BACKED SECURITIES
TERMS AGREEMENT
(to Underwriting Agreement,
dated __________________
among the Company, INDYMAC, Inc. and the Representative)
IndyMac ABS, Inc. _______, 199_
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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. ). Capitalized terms used and not defined herein have the
meanings given them in the Underwriting Agreement.
Section 1. The Trust Assets: The Trust Assets for the Series -_
----------------
Securities shall consist of [HELs, Hils or Contracts] 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,
---------------------------------
as Representative of the several
Underwriters
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:
INDYMAC, INC.
By: _________________________
Name:
Title: