Home Equity Mortgage Loan Asset-Backed Trust, Series INDS 2006-A Home Equity Mortgage Loan Asset-Backed Certificates, Series INDS 2006-A UNDERWRITING AGREEMENT
IndyMac
MBS, Inc.
Home
Equity Mortgage Loan Asset-Backed Trust, Series INDS 2006-A
Home
Equity Mortgage Loan Asset-Backed Certificates,
Series
INDS 2006-A
May
18,
2006
UBS
Securities LLC, as Representative
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Ladies
and Gentlemen:
IndyMac
MBS, 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 servicer named therein (the “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”),
multifamily mortgage loans (“MFMLs”), closed-end or revolving home equity loans
(“HELs”), home improvement installment sale contracts and installment loan
agreements (“HILs”) or manufactured housing contracts (“Contracts”) as specified
in the related Terms Agreement referred to below. The Trust Assets will be
serviced by the 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 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, the Servicer, the Trustee 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:
(a)
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
within three years prior to the Closing Date. 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 indicated in 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”; 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 is
hereinafter referred to as the “Base Prospectus”; and such Base Prospectus, as
supplemented by the Prospectus Supplement, is hereinafter referred to as the
“Prospectus”). The free writing prospectus of the Company relating to the
Offered Securities as identified in the Terms Agreement, together with the
Base
Prospectus attached thereto is hereinafter referred to as the “Issuer Free
Writing Prospectus”; provided that if no Issuer Free Writing Prospectus is
proposed to be used in connection with the sale of a Series of Offered
Securities, references herein to “Issuer Free Writing Prospectus” shall be
disregarded when used with respect to such Series of Offered Securities. Any
reference herein to the Registration Statement 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 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 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 date on which the
Prospectus is filed pursuant to Rule 424(b) under the Act.
(b)
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; each Issuer Free Writing Prospectus
(including any information provided by the Company as contemplated by Item
1105
of Regulation AB relating to securitized pools (“Static Pool Date”) referred to
therein), as of its date and as of the date of any contract of sale for the
related Securities (“Contract of Sale”)(such date shall be specified in the
related Terms Agreement), will not include any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
and such Prospectus, as of its date 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, such
Issuer Free Writing Prospectus 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.
(c) The
Offered Securities of the related Series will conform in all material respects
to the descriptions thereof contained in the related Issuer Free Writing
Prospectus (as amended or supplemented) and Prospectus (as amended or
supplemented), 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.
(d)
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 Issuer Free Writing Prospectus and 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.
(e)
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 Issuer Free Writing Prospectus and Prospectus and to enter into and
perform its obligations under the Transaction Documents to which it is a party
and this Agreement.
(f)
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.
(g)
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.
(h)
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.
(i)
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.
(j)
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.
(k)
The
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.
(l)
The
Company is not doing business with Cuba.
(m)
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 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.)
(n)
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 ▇▇▇▇ ▇▇▇.
(o)
If
the Offered Securities of the applicable Series include Notes, the Indenture
has
been qualified under the TIA.
(p)
As of
the earliest time after the filing of the Registration Statement that the
Company or another offering participant made a bona fide offer (within the
meaning of Rule 164 under the Act) of the Offered Securities, the Company was
not, and will not be, an “ineligible issuer” as defined in Rule 405 under the
Act.
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-l(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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ llp,
Two
World ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
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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
and Representations.
The
Company agrees with each Underwriter that:
(a)
The
Company will cause each of the Issuer Free Writing Prospectus and the Prospectus
relating to the Offered Securities of the applicable Series to be filed in
compliance with Rule 433 and Rule 424 under the Act, respectively, and, if
necessary, within 4 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 prior to the termination of the Offering to
which such Issuer Free Writing Prospectus and Prospectus relate (i) of any
request by the Commission for any amendment of such Registration Statement
or
Prospectus or for any additional information, (ii) 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 (iii) 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 Issuer Free Writing 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 Issuer Free Writing 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 Issuer Free Writing 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 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 Servicer to,
furnish to such Underwriter, as soon as available, a copy of (i) the annual
statement of compliance delivered by the 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
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 file or cause to be filed with the Commission any Free Writing
Prospectus that is either an Issuer Free Writing Prospectus or contains Issuer
Information as soon as reasonably practicable after the date of this Agreement,
but in any event, not later than required pursuant to Rules 426 or 433,
respectively, of the Act.
(h)
The
Company will timely file all reports with respect to the Trust required to
be
filed under the Exchange Act.
(i)
No
Advisory or Fiduciary Responsibility.
Each
of
the Company and the Seller acknowledges and agrees that: (i) the purchase and
sale of the Notes or Certificates pursuant to this Agreement, including the
determination of the offering price of the Notes or Certificates and any related
discounts and commissions, is an arm’s-length commercial transaction among the
Company, the Seller and the Underwriters and each of the Company and the Seller
is capable of evaluating and understanding and understands and accepts the
terms, risks and conditions of the transactions contemplated by this Agreement;
(ii) in connection with each transaction contemplated hereby and the process
leading to such transaction each Underwriter is and has been acting solely
as a
principal and is not the agent or fiduciary of either of the Company or the
Seller, or their respective affiliates, stockholders, creditors or employees
or
any other party; (iii) no Underwriter has assumed or will assume an advisory
or
fiduciary responsibility in favor of either of the Company or the Seller with
respect to any of the transactions contemplated hereby or the process leading
thereto (irrespective of whether such Underwriter has advised or is currently
advising either of the Company or the Seller on other matters) or any other
obligation to either of the Company or the Seller except the obligations
expressly set forth in this Agreement; (iv) the Underwriters and their
respective affiliates may be engaged in a broad range of transactions that
involve interests that differ from those of either of the Company or the Seller
and that the Underwriters have no obligation to disclose any of such interests
by virtue of any fiduciary or advisory relationship; and (v) the Underwriters
have not provided any legal, accounting, regulatory or tax advice with respect
to the offering contemplated hereby and each of the Company and the Seller
has
consulted its own legal, accounting, regulatory and tax advisors to the extent
it deemed appropriate.
This
Agreement supersedes all prior agreements and understandings (whether written
or
oral) among the Company, the Seller and the Underwriters, or any of them, with
respect to the subject matter hereof. Each of the Company and the Seller hereby
waives and releases, to the fullest extent permitted by law, any claims that
either of the Company or the Seller may have against the several Underwriters
with respect to any breach or alleged breach of fiduciary duty.
(j)
In
relation to each Member State of the European Economic Area which has
implemented the Prospectus Directive (each, a “Relevant Member State”) and with
respect to any Class of Offered Securities of a Series which is offered with
a
minimum denomination of less than $100,000, each Underwriter hereby represents
and agrees that with effect from and including the date on which the Prospectus
Directive is implemented in that Relevant Member State (the “Relevant
Implementation Date”) it has not made and will not make an offer of Securities
to the public in that Relevant Member State prior to the publication of a
prospectus in relation to the Securities which has been approved by the
competent authority in that Relevant Member State or, where appropriate,
approved in another Relevant Member State and notified to the competent
authority in that Relevant Member State, all in accordance with the Prospectus
Directive, except that it may, with effect from and including the Relevant
Implementation Date, make an offer of Securities to the public in that Relevant
Member State at any time:
(i) to
legal
entities which are authorized or regulated to operate in the financial markets
or, if not so authorized or regulated, whose corporate purpose is solely to
invest in securities;
(ii) to
any
legal entity which has two or more of (1) an average of at least 250 employees
during the last financial year; (2) a total balance sheet of more than
€43,000,000 and (3) an annual net revenue of more than €50,000,000, as shown in
its last annual or consolidated accounts; or
(iii) in
any
other circumstances which do not require the publication by the Depositor of
a
prospectus pursuant to Article 3 of the Prospectus Directive.
For
the
purposes of this representation, the expression an “offer of Securities to the
public” in relation to any Securities in any Relevant Member State means the
communication in any form and by any means of sufficient information on the
terms of the offer and the Securities to be offered so as to enable an investor
to decide to purchase or subscribe the Securities, as the same may be varied
in
that Member State by any measure implementing the Prospectus Directive in that
Member State and the expression “Prospectus Directive” means Directive
2003/71/EC and includes any relevant implementing measure in each Relevant
Member State.
(k) Each
Underwriter hereby further represents and agrees that, with respect to the
United Kingdom and with respect to any Class of Offered Securities of a Series
which is offered with a minimum denomination of less than $100,000:
(i) it
has
only communicated or caused to be communicated and will only communicate or
cause to be communicated an invitation or inducement to engage in investment
activity (within the meaning of Section 21 of the Financial Services and Markets
Act) received by it in connection with the issue or sale of the Securities
in
circumstances in which Section 21(1) of the Financial Services and Markets
Act
does not apply to the Company; and
(ii) it
has
complied and will comply with all applicable provisions of the Financial
Services and Markets Act with respect to anything done by it in relation to
the
Securities in, from or otherwise involving the United Kingdom.
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 an authorized officer of the
Company, to the effect that the signer of such certificate has carefully
examined the related Registration Statement, the related Issuer Free Writing
Prospectus and 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 Issuer Free Writing Prospectus, as of the date of any related Contract
of Sale, and the related Prospectus, as of its date, 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 an authorized officer 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, substantially 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 in all material respects 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) 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;
(viii) 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
(ix) 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), substantially 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),
substantially to the effect that:
(i) The
Seller has been duly organized 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
accountant, Deloitte & Touche LLP, shall 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 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 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 Issuer Free
Writing Prospectus and 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.
(r)
The
Company shall have furnished to the Underwriters a letter, dated the related
Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ llp
special
counsel to the Company stating that nothing has come to its attention that
would
lead such counsel to believe that the related Issuer Free Writing Prospectus,
as
of its date and on the date of any related Contract of Sale, contained an untrue
statement of a material fact or omitted to state a material fact necessary
in
order to make the statements therein, in 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 Issuer Free Writing Prospectus of any
Securities Insurer with respect to the related Offered Securities.
(s)
The
Underwriters shall have received from their counsel a letter, dated the related
Closing Date, stating that nothing has come to its attention that would lead
such counsel to believe that the related Issuer Free Writing Prospectus, as
of
its date and on the date hereof, contained an untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements therein, in 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 Issuer Free Writing Prospectus of any Securities Insurer
with respect to the related Offered Securities.
(t)
The
Company shall have furnished to the Underwriters a letter, dated the related
Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Wood llp
special
counsel to the Company stating that nothing has come to its attention that
would
lead such counsel to believe that the related Prospectus, as of its date and
on
the related Closing Date, contained an untrue statement of a material fact
or
omitted to state a material fact necessary in order to make the statements
therein, in 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.
(u)
The
Underwriters shall have received from their counsel a letter, dated the related
Closing Date, stating that nothing has come to its attention that would lead
such counsel to believe that the related Prospectus, as of its date and on
the
related Closing Date, contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in 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.
(v)
The
Company’s independent
accountant, Deloitte & Touche LLP, shall have furnished to the Underwriters
(A) a letter or letters addressed to the Underwriters and dated as of or prior
to the date of first use of the related Issuer Free Writing Prospectus in the
form and reflecting the performance of the procedures previously agreed to
by
the Company and the Underwriters and (B) (a) dated as of a date not more than
135 days prior to the date of first use of the Prospectus Supplement, reflecting
the performance of the procedures agreed to by the Company and such accountants
with respect to securitized asset pools issued on or after January 1, 2006
and/or vintage origination years commencing on or after January 1, 2006 and
(b)
a bring-down or reliance letter, dated as of the date on which the Company
notifies the related Underwriter that the Company has chosen it to underwrite
the offering of Securities, from such accountants with respect to the letter
described in (B)(a), which shall be addressed to the Underwriters; provided
that
the Underwriters shall have complied with any reasonable requests of such
accountants as a condition thereto.
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
electronic communication 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 Issuer Free Writing
Prospectus Information, the Company Prospectus Information, the Company
Registration Information or the Static Pool Data 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
Issuer Free Writing Prospectus Information, the Company Prospectus Information
or the Static Pool Data 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, in each case, excluding any Derived Information or
Underwriter Information incorporated therein 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. 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 against any and all losses,
claims, damages or liabilities (or actions in respect thereof) to which they
may
become subject, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon (A) such
Underwriter’s failure to comply with Section 8(a) of this Agreement or (B) any
untrue statement or alleged untrue statement of any material fact contained
in
(i) the Derived Information of such Underwriter and (ii) the Registration
Statement, the Issuer Free Writing Prospectus, the Prospectus, or any amendment
or supplement thereto, or arise out of, or are based upon, the omission or
the
alleged omission to state therein a material fact required to be stated in
clause (b)(B)(i) or (ii) above or necessary to make the statements made therein
not misleading, but with respect to clause (b)(B)(ii) above, 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; provided,
however,
that
any such omission or alleged omission relating to the Derived Information of
such Underwriter shall be determined by reading such Derived Information in
conjunction with the Issuer Free Writing Prospectus or the Prospectus, as
applicable, as an integral document and in light of the circumstances under
which such statements in such Derived Information, Issuer Free Writing
Prospectus 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 Section 7(a) or (b). 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
Computational Materials 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 Computational Materials or which failed to
comply with Section 8(a) of this Agreement, (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 Computational
Materials, the preceding limitation on contribution shall be inapplicable to
the
Underwriter which furnished such Computational Materials. 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. Marketing.
(a)
Each
Underwriter represents to and agrees with the Company that prior to entering
into any Contract of Sale, the Underwriter shall convey the Issuer Free Writing
Prospectus to each prospective investor. The Underwriter shall keep sufficient
records to document its conveyance of the Issuer Free Writing Prospectus to
each
potential investor prior to the related Contract of Sale.
(b)
An
Underwriter may convey a Preliminary Term Sheet to a potential investor prior
to
entering into a Contract of Sale with such investor; provided, however, that
(x)
such Underwriter shall not enter into a Contract of Sale with such investor
unless the Underwriter has conveyed the Issuer Free Writing Prospectus to such
potential investor prior to such Contract of Sale, (y) such Underwriter shall
deliver a copy of the proposed Preliminary Term Sheet to the Company and its
counsel at least 24 hours prior to the anticipated first use and shall not
convey any such Preliminary Term Sheet to which the Company and its counsel
reasonably objects.
(c)
Each
Underwriter who has conveyed Computational Materials represents to the Company
that assuming the accuracy of the Seller Asset Information, the Derived
Information included in the Computational Materials of such Underwriter 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 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.
(d)
An
Underwriter may convey Computational Materials (x) to a potential investor
prior
to entering into a Contract of Sale with such investor; provided, however,
that
such Underwriter shall not enter into a Contract of Sale with such investor
unless the Underwriter has conveyed the Issuer Free Writing Prospectus to such
potential investor prior to such Contract of Sale and (y) to an investor after
a
Contract of Sale. Each Underwriter agrees that it shall not broadly disseminate
any Computational Materials.
(e)
Unless preceded or accompanied by a prospectus satisfying the requirements
of
Section 10(a) of the Act, the Underwriter shall not convey or deliver any
written communication to any person in connection with the initial offering
of
the Certificates, unless such written communication (1) is made in reliance
on
Rule 134 under the Act, (2) constitutes a prospectus satisfying the requirements
of Rule 430B under the Act or (3) is a Free Writing Prospectus.
(f)
Each
Preliminary Term Sheet shall contain legends substantially similar to the
following:
The
depositor has filed a registration statement (including a prospectus) with
the
SEC for the offering to which this communication relates. Before you invest,
you
should read the prospectus in that registration statement and other documents
the depositor has filed with the SEC for more complete information about the
depositor and this offering. You may get these documents for free by visiting
▇▇▇▇▇ on the SEC Web site at ▇▇▇.▇▇▇.▇▇▇. Alternatively, the depositor, any
underwriter or any dealer participating in the offering will arrange to send
you
the prospectus if you request it by calling toll free
(▇▇▇)-▇▇▇-▇▇▇▇.
The
attached tables and other statistical analyses (the “Computational Materials”)
have been prepared and furnished to you by UBS Securities LLC. The issuer of
the
securities did not participate in the preparation of these Computational
Materials.
Numerous
assumptions were used in preparing the Computational Materials, which may or
may
not be reflected therein. As such, no assurance can be given as to whether
the
Computational Materials and/or the assumptions upon
which they are based reflect present market conditions or future market
performance. These Computational
Materials should not be construed as either projections or predictions or as
legal, tax, financial or accounting advice.
Any
weighted average lives, yields and principal payment periods shown in the
Computational Materials are based
on
prepayments assumptions, and changes in such prepayment assumptions may
dramatically affect such
weighted
average lives, yields and principal payment periods. In addition, it is possible
that prepayments on the underlying assets will occur at rates slower or faster
than the rates shown in the attached Computational Materials. Furthermore,
unless otherwise provided, the Computational Materials assume no losses on
the
underlying assets and no interest shortfall. The specific performance
characteristics of the securities may differ from those shown in the
Computational Materials due to differences between the actual underlying assets
and the hypothetical underlying assets used in preparing the Computational
Materials. The principal amount and designation of any security described in
the
Computational Materials are subject to change prior to issuance. There can
be no
assurance as to the actual rate or timing of payments on any of the underlying
assets or the payments or yield on the securities.
This
communication shall not constitute an offer to sell or the solicitation of
an
offer to buy nor shall there be any sale of the securities, discussed in this
communication in any state in which such offer, solicitation or sale would
be
unlawful prior to registration or qualification of such securities under the
securities laws of any such state.
Please
be
advised that the securities herein may not be appropriate for all investors.
Potential investors must be willing to assume, among other things, market price
volatility, prepayment, yield curve and interest rate risks. Investors should
make every effort to consider the risks of these securities.
If
you
have received this communication in error, please notify the sending party
immediately by telephone and return the original to such party by
mail.
THE
INFORMATION CONTAINED HEREIN IS PRELIMINARY AND SUBJECT TO CHANGE AND
SUPERSEDES INFORMATION CONTAINED IN ANY PRIOR TERM SHEET FOR THIS TRANSACTION.
(g)
Any
Computational Materials shall include legends substantially similar to the
following, in addition to those specified in paragraph (e) above:
The
information in this free writing prospectus may be based on preliminary
assumptions about the pool assets and the structure. Any such assumptions are
subject to change.
The
information in this free writing prospectus may reflect parameters, metrics
or
scenarios specifically requested by you. If so, prior to the time of your
commitment to purchase, you should request updated information based on any
parameters, metrics or scenarios specifically required by you.
Neither
the issuer of the securities nor any of its affiliates prepared, provided,
approved or verified any statistical or numerical information presented in
this
free writing prospectus, although that information may be based in part on
loan
level data provided by the issuer or its affiliates.
(h)
At or
prior to the time any Preliminary Term Sheet is furnished to the Company for
filing on the Form 8-K, if Computational Materials are conveyed at or about
the
same time, the Underwriter furnishing such Computational Materials 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 and have found no exceptions, other than such exceptions as are
acceptable to the Company and the Underwriter.
(i) In
the
event that any Underwriter or the Company becomes aware that any Free Writing
Prospectus or any Issuer Free Writing Prospectus prepared by or on behalf of
the
Underwriter and, in each case, delivered to a purchaser of an Offered Security
contained any untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements contained therein, in the light
of the circumstances under which they were made, not misleading (such Free
Writing Prospectus or Issuer Free Writing Prospectus, a “Defective Prospectus”),
then:
(i) The
Underwriter or the Company shall notify the other parties to this Agreement
within one business day after discovery;
(ii) The
party
responsible for the incorrect or omitted information, if requested by the
Company or an Underwriter, as appropriate, shall prepare a Free Writing
Prospectus or Issuer Free Writing Prospectus, as applicable, with corrective
information that corrects the material misstatement in or omission from the
Defective Prospectus (such corrected Free Writing Prospectus, a “Corrected
Prospectus”);
(iii) The
Underwriters shall deliver the Corrected Prospectus to each purchaser of an
Offered Security which received the Defective Prospectus;
(iv) The
Underwriters shall notify such purchaser in a prominent fashion that the prior
agreement to purchase Offered Securities has been terminated, and of such
purchaser’s rights as a result of termination of such agreement;
and
(v) The
Underwriters shall provide such purchaser with an opportunity to affirmatively
agree to purchase such Offered Securities on the terms described in the
Corrected Free Writing Prospectus.
9. Certain
Defined Terms.
The
following terms shall have the meanings set forth below, unless the context
clearly indicates otherwise:
Company
Issuer Free Writing Prospectus Information:
All
information contained or incorporated in the Issuer Free Writing Prospectus
other than the Underwriter Information.
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.
Computational
Materials:
Any
Free Writing Prospectus prepared by the Underwriter that contains only (i)
information specified in paragraph (5) of the definition of ABS Informational
and Computational Materials in Item 1101(a) of Regulation AB or (ii) information
that is not Issuer Information.
Contract
of Sale:
The
meaning set forth in Rule 159 under the Act.
Derived
Information:
Such
information, if any, in any Free Writing Prospectus prepared by any Underwriter
that is not contained in either (i) the Registration Statement, the Base
Prospectus, the Issuer Free Writing Prospectus or the Prospectus or amendments
or supplements thereto, taking into account information incorporated therein
by
reference or (ii) any Seller Asset Information.
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.
Free
Writing Prospectus:
A
written communication within the meaning of Rule 405 under the Act that
describes the Offered Securities or the Trust Assets.
Issuer
Information:
Such
information as defined in Rule 433(h) under the Act and which shall not include
information that is merely based on or derived from such
information.
Preliminary
Term Sheet:
A Free
Writing Prospectus that contains information described in paragraphs (1) -
(3)
of the definition of ABS Informational and Computational Materials in Item
1101(a) of Regulation AB (“ABS ICM”) but which does not include Derived
Information.
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 of such Underwriter are based.
Spread:
As to
any Underwriter, the underwriting discount set forth on the cover of the
applicable Prospectus Supplement.
Static
Pool Data:
The
information required in the Prospectus Supplement by Item 1105 of Regulation
AB
under the Act, whether or not such information is incorporated in the Prospectus
Supplement or the Registration Statement.
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, the Issuer Free Writing
Prospectus or the Prospectus, such information being (i) identified in a side
letter between the Underwriters and the Depositor and (ii) any Derived
Information included in ABS ICM 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, and the Seller or the officers of either 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 Sections 7, 13 and 14 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.
(d)
Each
Underwriter hereby authorizes UBS Securities LLC to execute the cross-receipt
and the registration instructions on behalf of such Underwriter.
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
▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, attention of Secondary
Marketing.
19. Confidentiality.
(i) Each
Underwriter agrees that all nonpublic personal information relating to the
consumers and customers of the Seller and its affiliates (“Customer Confidential
Information”) acquired by the Underwriters from the Seller or its affiliates may
only be used in connection with the purchase and sale of the Offered Securities.
If an Underwriter proposes to disclose Customer Confidential Information to
a
third party in order to perform under this Agreement, such Underwriter shall
remain responsible for any breach of these covenants by such party. The
restrictions on use and disclosure set forth above shall not apply when, and
to
the extent that, the Customer Confidential Information is required to be
disclosed by any Underwriter as a matter of law. The provisions of this section
shall survive the termination of this Agreement.
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
MBS, INC.
|
|
|
By:
|
/s/
▇▇▇ ▇▇▇▇▇▇▇▇▇
|
|
Name:
|
▇▇▇
▇▇▇▇▇▇▇▇▇
|
|
Title:
|
First
Vice President
|
|
INDYMAC
BANK, F.S.B., as Seller
|
|
|
By:
|
/s/
▇▇▇ ▇▇▇▇▇▇▇▇▇
|
|
Name:
|
▇▇▇
▇▇▇▇▇▇▇▇▇
|
|
Title:
|
First
Vice President
|
The
foregoing Agreement is
hereby
confirmed and accepted
as
of the
date first above written
on
behalf
of itself and as representative
of
the
Underwriters
|
UBS
SECURITIES LLC
|
|
|
By:
|
/s/
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
|
|
Name:
|
▇▇▇▇
▇▇▇▇▇▇▇▇▇
|
|
Title:
|
Executive
Director
|
|
By:
|
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
|
|
Name:
|
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
|
|
Title:
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Director
|
EXHIBIT
A
INDYMAC
MBS, INC.
ASSET-BACKED
SECURITIES
TERMS
AGREEMENT
dated
__________________
among
the
Company, and the Representative)
|
IndyMac
MBS, Inc.
|
_______,
200_
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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-[_______]). 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, MFMLs, 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:
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Class
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Principal
Balance
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Interest
Rate
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Class
Purchase
Price
Percentage
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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.
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Class
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Underwriter
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Underwriter
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Underwriter
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Underwriter
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(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:
Section
5. Issuer
Free Writing Prospectus:
The
Free Writing Prospectus dated _________ relating to the Series __-__
Securities.
Section
6. Date
of Contract of Sale:
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.
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Very
truly yours,
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By:
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Name:
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Title:
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The
foregoing Agreement is
hereby
confirmed and accepted
as
of the
date first above written.
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INDYMAC
MBS, INC.
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By:
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Name:
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Title:
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ACKNOWLEDGED
BY:
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By:
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Name:
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Title:
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