Exhibit 1.2
INDEMNIFICATION
AND
CONTRIBUTION AGREEMENT
AGREEMENT, dated [ ] (this "Agreement"), among
IndyMac MBS, Inc.,
a Delaware corporation ("IndyMac MBS"), the Seller (as defined
below) and the
Broker-Dealers (as defined below).
WITNESSETH:
WHEREAS, IndyMac MBS and one or more of the Broker-Dealers are
parties to the Underwriting Agreement (defined below), providing
for the sale by
IndyMac MBS and the purchase, severally and not jointly, by such
Broker-Dealers
of the Public Certificates (defined below); and
WHEREAS,
IndyMac MBS and one or more of the Broker-Dealers are
parties to the Purchase Agreement (defined below), providing for
the sale by
IndyMac MBS and the purchase, severally and not jointly, by such
Broker-Dealers
of the Private Certificates (defined below) other than the Private
Certificates
that are Retained Certificates; and
WHEREAS, as an inducement to the Broker-Dealers to enter into
the
Underwriting Agreement and the Purchase Agreement, as applicable,
IndyMac MBS
and the Broker-Dealers wish to provide for indemnification and
contribution on
the terms and conditions hereinafter set forth; and
WHEREAS, the purchase price to be paid by IndyMac MBS to the
Seller
for the Mortgage Loans will be the proceeds of the sale by IndyMac
MBS to the
Broker-Dealers of the Public Certificates and the Private
Certificates, and as
an inducement to the Broker-Dealers to enter into the Underwriting
Agreement and
Purchase Agreement, as applicable, the Seller agrees to perform
certain
obligations set forth herein;
NOW, THEREFORE, in consideration of the foregoing and of other
good
and valuable consideration, the receipt and sufficiency of which is
hereby
acknowledged, the parties hereto agree as follows:
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ARTICLE I
Definitions
1.1.
Certain Defined
Terms.
The following terms shall have the meanings set forth below,
unless
the context clearly indicates otherwise:
Act: The Securities
Act of 1933, as amended.
Agreement: This
Indemnification and
Contribution
Agreement, as
the same may be amended in accordance with the terms hereof.
Base Prospectus: The prospectus dated [ ], as the same may be
amended or supplemented, of IndyMac MBS relating to the offering
from time to
time of one or more series of mortgage pass-through
certificates.
Broker-Dealer: Each of the signatories to this Agreement other
than
IndyMac MBS or the Seller.
Certificates:
Mortgage
Pass-Through
Certificates, [
] of
IndyMac MBS.
Closing Date: On or
about [
].
Collateral Term Sheets: As defined in the No-Action
Letters.
Computational Materials: As defined in the No-Action
Letters.
Derived Information: As to any Broker-Dealer, such information,
if
any, in the Series Term Sheets, Collateral Term Sheets, Structural
Term Sheets
and/or Computational Materials that is not contained in (i) the
Prospectus, the
Registration Statement, the Memorandum or amendments or supplements
to either,
taking into account information incorporated therein by reference
(other than
information incorporated by reference from the Series Term Sheets,
Collateral
Term Sheets, Structural Term Sheets and/or Computational Materials)
or (ii) any
Seller Mortgage Loan Information; provided, however, that Derived
Information
shall not include any error or omission or alleged error or alleged
omission
that results from a Pool Error.
Exchange Act: The
Securities Exchange Act of 1934, as amended.
Form 8-K: Any of the Current Reports on Form 8-K filed by or on
behalf of IndyMac MBS with respect to the Mortgage Loans and
including any
Collateral Term Sheet, Computational Materials, Series Term Sheet
or Structural
Term Sheet furnished by one or more of the Broker-Dealers.
IndyMac MBS: IndyMac MBS, Inc., a Delaware corporation and its
successors in interest.
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IndyMac MBS Memorandum Information: All information contained
or
incorporated in the Memorandum other than the Purchaser
Information.
IndyMac MBS Prospectus Information: All information contained
or
incorporated in the Prospectus other than the Senior Underwriter
Information,
the Subordinate Underwriter Information and the PO Underwriter
Information.
IndyMac MBS Registration Information: All information contained
or
incorporated in the Registration Statement.
Memorandum: The Confidential Private Placement Memorandum, if
any,
dated the Closing Date, as the same may be amended or supplemented,
of IndyMac
MBS relating to the Private Certificates other than the Private
Certificates
that are Retained Certificates.
No-Action Letters: The no-action letter dated May 20, 1994 issued
by
the Division of Corporation Finance of the Securities and Exchange
Commission
("SEC") to Kidder, Peabody Acceptance Corporation I, Kidder Peabody
& Co.
Incorporated, and Kidder Structured Asset Corporation; the
no-action letter
dated May 27, 1994 issued by the Division of Corporation Finance of
the SEC to
the Public Securities Association; the no-action letter dated
February 17, 1995
issued by the SEC to the Public Securities Association; the letter
of Cleary
Gottlieb, Steen & Hamilton on behalf of the Public Securities
Association (which
letter and the SEC staff's response thereto are publicly
available); and the
no-action letter issued by the SEC addressed to Greenwood Trust
Company,
Discover Card Master Trust 1 dated April 5, 1996.
Offered Certificates:
The Public
Certificates
and the Private
Certificates.
Pool Error: Any error
in the Seller Mortgage Loan Information.
PO Spread: The excess, if any, of (i) the purchase prices paid
by
investors to the PO Underwriter for the Class PO Certificates over
(ii) the
purchase price paid by the PO Underwriter to IndyMac MBS for the
Class PO
Certificates pursuant to the Underwriting Agreement.
PO Underwriter: The Broker-Dealer, if any, which is purchasing
the
Class PO Certificates, if any, pursuant to the Underwriting
Agreement.
PO Underwriter Information: As to the PO Underwriter, the
written
information furnished by or on behalf of the PO Underwriter to
IndyMac MBS
specifically for use in connection with the preparation of the
Registration
Statement or the Prospectus, such information being (i) the
information relating
to the PO Underwriter set forth in the Prospectus Supplement under
the caption
"Method of Distribution" therein and (ii) any Computational
Materials prepared
by the PO Underwriter, furnished to IndyMac MBS and included in the
Form 8-K;
provided, however, that such Derived Materials shall not include
any Seller
Mortgage Loan Information or any errors in the mathematical
calculations
reflected in such Computational Materials to the extent such errors
result from
such Seller Mortgage Loan Information.
Private Certificates:
The [
] Certificates.
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Prospectus: The Base
Prospectus
together with the Prospectus
Supplement.
Prospectus Supplement:
The Prospectus
Supplement dated the
date
hereof, as the same
may be amended or
supplemented, of
IndyMac MBS relating
to the offering of the Public Certificates.
Public Certificates:
The Senior
Certificates and the Subordinate
Certificates.
Purchase Agreement: The Purchase Agreement, if any, dated the
Closing Date, between IndyMac MBS and the Purchaser providing for
the purchase
and sale of the Private Certificates, other than the Retained
Certificates that
are Private Certificates.
Purchase Spread: The excess, if any, of (i) the purchase prices
paid
by investors to the Purchaser for the Private Certificates other
than the
Private Certificates that are Retained Certificates over (ii) the
purchase price
paid by the Purchaser to IndyMac MBS for the Private Certificates
other than the
Private Certificates that are Retained Certificates pursuant to the
Purchase
Agreement.
Purchaser: The Broker-Dealer that is purchasing the Private
Certificates other than the Private Certificates that are Retained
Certificates
pursuant to the Purchase Agreement.
Purchaser Information: The only written information furnished by
or
on behalf of the Purchaser to IndyMac MBS specifically for use in
connection
with the preparation of the Memorandum, such information being the
information
relating to the Purchaser set forth in the Memorandum under the
caption "Method
of Placement."
Registration Statement: As defined in the Underwriting
Agreement.
Retained Certificates: The Class [ ]
Certificates.
Seller: IndyMac Bank,
F.S.B., a federal savings bank, and its
successors in interest.
Seller Mortgage
Loan Information: Information relating to the
Mortgage Loans furnished by or on behalf of the Seller to any
Broker-Dealer.
Senior Certificates:
The [
] Certificates.
Senior Spread: The excess, if any, of (i) the purchase prices
paid
by investors to the Senior Underwriter for the Senior Certificates
over (ii) the
purchase price paid by the Senior Underwriter to IndyMac MBS for
such Senior
Certificates pursuant to the Underwriting Agreement.
Senior Underwriter: The Broker-Dealer which is purchasing the
Senior
Certificates, pursuant to the Underwriting Agreement.
Senior Underwriter Information: The written information furnished
by
or on behalf of the Senior Underwriter to IndyMac MBS specifically
for use in
connection with the
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preparation of the Registration Statement or the Prospectus, such
information
being (i) the information relating to the Senior Underwriter set
forth in the
Prospectus Supplement under the caption "Method of Distribution"
therein and
(ii) any Derived Information of such Senior Underwriter, furnished
to IndyMac
MBS and included in a Form 8-K.
Subordinate Certificates: The [
] Certificates.
Subordinate Spread: The excess, if any, of (i) the purchase
prices
paid by investors to the Subordinate Underwriter for the
Subordinate
Certificates, over (ii) the purchase price paid by the Subordinate
Underwriter
to IndyMac MBS for such Subordinate Certificates pursuant to the
Underwriting
Agreement.
Subordinate Underwriter: The Broker-Dealer, if any, which is
purchasing the Subordinate Certificates, if any, pursuant to the
Underwriting
Agreement.
Subordinate Underwriter Information: The only written
information
furnished by or on behalf of the Subordinate Underwriter to IndyMac
MBS
specifically for use in connection with the preparation of the
Registration
Statement or the Prospectus, such information being (i) the
information relating
to the Subordinate Underwriter set forth in the Prospectus
Supplement under the
caption "Method of Distribution" therein and (ii) any Derived
Information of
such Subordinate Underwriter, furnished to IndyMac MBS and included
in a Form
8-K.
Underwriting Agreement: The Underwriting Agreement, dated the
date
hereof, among IndyMac MBS, the Senior Underwriter, the PO
Underwriter and the
Subordinate Underwriter providing for the purchase and sale of the
Public
Certificates, other than the Retained Certificates that are Public
Certificates.
1.2.
Other Terms.
Capitalized terms used but not defined herein shall have the
meanings assigned to such terms in the Underwriting Agreement or
the Purchase
Agreement, as applicable.
1.3.
Interpretive
Principle.
A Broker-Dealer may be acting in more than one capacity, e.g.,
the
Senior Underwriter also may be the PO Underwriter. References
herein to a
Broker-Dealer acting in a particular capacity shall refer to such
Broker-Dealer
in such capacity only and shall not refer to other capacities, if
any, being
served by such Broker-Dealer.
ARTICLE II
Representations and Warranties
2.1.
Mutual
Representation.
Each party hereto represents to the other parties hereto that:
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(a) the execution, performance and delivery of this Agreement
has
been duly authorized by such party;
(b) this Agreement has been duly executed and delivered by such
party; and
(c) this Agreement constitutes the legal and valid obligations
of
such party.
2.2.
Other
Representations.
(a) IndyMac MBS has all requisite corporate power and authority
to
execute, deliver and perform its obligations under this Agreement;
and
(b) The Seller has all requisite corporate power and authority
to
execute, deliver and perform its obligations under this
Agreement.
(c) In relation to each Member State of the European Economic
Area
that has implemented the Prospectus Directive (each, a "Relevant
Member State"),
each Broker-Dealer represents and agrees with the Depositor that
with effect
from and including the date on which the Prospectus Directive is
implemented in
that Relevant Member State (the "Relevant Implementation Date") and
with respect
to any Class of Certificates with a minimum denomination of less
than $100,000
that is purchased by such Broker-Dealer it has not made and will
not make an
offer of Certificates of that Class to the public in that Relevant
Member State
prior to the publication of a prospectus in relation to the
Certificates of that
Class which has been approved by the competent authority in that
Relevant Member
State or, where appropriate, approved in another Relevant Member
State and
notified to the competent authority in that Relevant Member State,
all in
accordance with the Prospectus Directive, except that it may, with
effect from
and including the Relevant Implementation Date, make an offer of
Certificates of
that Class to the public in that Relevant Member State at any
time:
(i) to legal entities which are authorized or regulated to
operate
in
the financial markets or, if not so authorized or regulated,
whose
corporate purpose is solely to invest in securities;
(ii) to any legal entity which has two or more of (1) an average
of
at
least 250 employees during the last fiscal year; (2) total assets
of
more
than (euro)43,000,000 and (3) an annual net revenue of more
than
(euro)50,000,000, as shown in its last annual or consolidated
financial
statements; or
(iii) in any other circumstances that do not require the
publication
by
the Depositor of a prospectus pursuant to Article 3 of the
Prospectus
Directive.
For the purposes of
this provision, the expression an "offer of
Certificates of that Class to the public"
