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Exhibit 10.1
WaMu ASSET ACCEPTANCE CORP.
WaMu Mortgage Pass-Through Certificates
Series [___]
SUPPLEMENTAL INDEMNIFICATION
AGREEMENT
[Underwriter
1]
Dated as of [Date]
[Underwriter 2]
Ladies and Gentlemen:
1.
Introductory . WaMu Asset Acceptance Corp., a Delaware
corporation (the “ Company ”), proposes to sell,
pursuant to the terms of an Underwriting Agreement of even date
herewith (the “ Underwriting Agreement ”), and a
Purchase Agreement of even date herewith (the “ Purchase
Agreement ”), and each of [Underwriter 1] (“[
Underwriter 1 ]”) and [Underwriter 2] (“[
Underwriter 2 ],” and collectively with [Underwriter
1], the “ Acquirers ”) severally proposes to
purchase the aggregate principal amount (or notional amount, as
applicable) of the (i) Offered Certificates (as such term is
defined in Underwriting Agreement) set forth opposite its name on
Schedule 2 to the Underwriting Agreement and (ii) Purchased
Certificates (as such term is defined in Purchase Agreement) set
forth opposite its name on Schedule B to the Purchase Agreement, of
the $[__________] aggregate principal balance (subject to an upward
or downward variance not to exceed 5.0%) of the WaMu Mortgage
Pass-Through Certificates, Series [___]. In furtherance of
the transactions described above, Washington Mutual Bank (“
WMB ”) desires to enter into this Supplemental
Indemnification Agreement (this “ Agreement ”)
for the purposes of (i) providing indemnification to
(a) the Underwriters (as such term is defined in Underwriting
Agreement) and (b) the Purchasers (as such term is defined in
Purchase Agreement) and (ii) receiving indemnification from
(a) the Underwriters and (b) the Purchasers. Capitalized
terms not otherwise defined herein shall have the meanings assigned
to them in the Underwriting Agreement or the Purchase Agreement, as
the case may be, as in effect on the date hereof.
The obligations, representations and
covenants of the Underwriters under this Agreement shall be several
and not joint.
2.
Representations and Warranties of WMB . WMB hereby
represents and warrants to, and agrees with, each Acquirer
that:
(i)
The performance by WMB of its obligations under Section 3 of
this Agreement will not result in a material breach or violation of
any of the terms or provisions of or constitute a material default
under any statute, any indenture, mortgage, deed of trust, note
agreement or other agreement or instrument to which WMB is a party
or by which it is bound, WMB's Charter or By-laws, or any order,
rule or regulation of any court or governmental agency or body
having jurisdiction over WMB or any of its properties.
(ii)
No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation by WMB
of the transactions contemplated by Section 3 of this
Agreement, except for such as will have been obtained prior to the
Closing Date.
(iii) WMB
is validly existing under the laws of the United States and its
Charter is in full force and effect and WMB has all requisite
corporate power and corporate authority to enter into and perform
its obligations under the Section 3 of this
Agreement.
(iv) This
Agreement has been duly authorized, executed and delivered by
WMB.
(v)
There is no action, suit or proceeding before or by any court or
governmental agency or body now pending, or to the best knowledge
of WMB, threatened, against WMB which separately or in the
aggregate could reasonably be expected to have a material adverse
effect on the ability of WMB to perform its obligations under
Section 3 of this Agreement or on the validity or
enforceability of the provisions of Section 3 of this
Agreement.
3.
Indemnification and Contribution .
(a)
Indemnification Relating to the Offered
Certificates
(i)
In addition to the indemnification provided by the Company in
Section 8 of the Underwriting Agreement, and without
duplication of any amounts paid by the Company to any Underwriter
or Controlling Person in connection therewith, WMB agrees to
indemnify and hold harmless each Underwriter and their respective
officers and directors, and each Person, if any, who controls such
Underwriter within the meaning of Section 15 of the Act (for
purposes of this Section 3(a), each, a “ Controlling
Person ”), against any losses, claims, damages,
liabilities or expenses (including the reasonable cost of
investigating and defending against any claims therefor and counsel
fees incurred in connection therewith, except as otherwise provided
herein), joint or several, which may be based upon the Act, or any
other statute or at common law, on the ground or alleged ground
that the Registration Statement, as from time to time amended or
supplemented (including, without limitation, any information
incorporated by reference therein), 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 Prospectus, as from time to time amended or
supplemented (including, without limitation, any information
incorporated by reference therein), included any 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, unless such statement
or omission was made in reliance upon, and in conformity with,
written information furnished to the Company or WMB by any
Underwriter or any affiliate of any Underwriter, or information
electronically transmitted to the Company or WMB by any Underwriter
or any affiliate of any Underwriter, specifically for use in the
preparation thereof (including, without limitation, any information
in any Evaluation Models-Materials or ABS Term Sheets, but
excluding Company Provided Information and any untrue statement of
material fact in any Evaluation Models-Materials or ABS Term Sheets
resulting from an untrue statement in the Company Provided
Information, required to be provided by the Underwriters pursuant
to Section 5(a) of the Underwriting Agreement); provided ,
that in no case will WMB be liable with respect to any claims made
against any Underwriter or any Controlling Person unless such
Underwriter or Controlling Person shall have notified WMB in
writing, giving notice of the nature of the claim, within a
reasonable time after service of a summons or other first legal
process that shall have been served upon such Underwriter or
Controlling Person, but failure to notify WMB of any such claim
shall not relieve WMB from any liability which WMB may have to such
Underwriter or Controlling Person, except to the extent that WMB
has been materially prejudiced by such failure and provided further
that the failure to notify WMB of such claim shall not relieve WMB
from any liability which it may have to such Underwriter or such
related Controlling Person otherwise than on account of the
indemnity agreement contained in this paragraph. WMB will be
entitled to participate at its own expense in the defense, or, if
WMB so elects, to assume the defense of any suit brought to enforce
any such liability, but, if WMB elects to assume the defense, such
defense shall be conducted by counsel chosen by WMB. In the
event that WMB elects to assume the defense of any such suit and
retain such counsel, the Underwriters or Controlling Person,
defendant or defendants in the suit, may retain additional counsel
but shall bear the fees and expenses of such counsel unless (i)
WMB, on the one hand, and the Underwriters or Controlling Person,
on the other hand, shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include WMB and the Underwriters
or Controlling Person and representation of both parties by the
same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that WMB
shall not, in connection with any proceeding or related proceedings
in the same jurisdiction, be liable for the fees and expenses of
more than one counsel for the Underwriters and Controlling Persons
requesting indemnification and that all such fees and expenses
shall be reimbursed as they are incurred. WMB shall not be
liable to indemnify any Person for any settlement of any claim
effected without the WMB’s prior written consent, which
consent shall not be unreasonably withheld. WMB shall not,
without the prior written consent of the Underwriters or
Controlling Person, which consent will not be unreasonably
withheld, effect any settlement of any pending or threatened
proceeding in respect of which the Underwriters or Controlling
Person is or could have been a party and indemnity is or could have
been sought hereunder by the Underwriters or Controlling Person
unless such settlement includes an unconditional release of the
Underwriters or Controlling Person from all liability on claims
that are the subject matter of such proceeding and does not include
a statement as to or an admission of fault, culpability or failure
to act by, or on behalf of, such indemnified party. This
indemnity agreement will be in addition to any liability which WMB
might otherwise have.
(ii)
In addition to the indemnification provided by each Underwriter in
Section 8 of the Underwriting Agreement, and without
duplication of any amounts paid by the Underwriters to the Company
or Company Controlling Person in connection therewith, each
Underwriter agrees to indemnify and hold harmless WMB, each of its
officers and directors and each Person, if any, who controls WMB
within the meaning of Section 15 of the Act (for purposes of this
Section 3(a), each, a “ WMB Controlling Person
”) against any losses, claims, damages, liabilities or
expenses (including the reasonable cost of investigating and
defending against any claims therefor and counsel fees incurred in
connection therewith, except as otherwise provided herein), joint
or several, which may be based upon the Act, or any other statute
or at common law, on the ground or alleged ground that the
Registration Statement, as from time to time amended or
supplemented (including, without limitation, any information
incorporated by reference therein), 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 Prospectus, as from time to time amended or
supplemented (including, without limitation, any information
incorporated by reference therein), included any 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, but only insofar as any
such statement or omission was made in reliance upon, and in
conformity with, written information furnished to the Company or
WMB by any Underwriter or any affiliate of any Underwriter, or
information electronically transmitted to the Company or WMB by any
Underwriter or any affiliate of any Underwriter, specifically for
use in the preparation thereof (including, without limitation, any
Evaluation Models-Materials or ABS Term Sheets, but excluding
Company Provided Information and any untrue statement of a material
fact in any Evaluation Models-Materials or ABS Term Sheets
resulting from an untrue statement in the Company Provided
Information, required to be provided by the Underwriters pursuant
to Section 5(a) of the Underwriting Agreement); provided ,
however , that in no case are the Underwriters to be liable
with respect to any claims made against WMB or any such Person
against whom the action is brought unless WMB or such Person shall
have notified the Underwriters in writing, giving notice of the
nature of the claim, within a reasonable time after service of a
summons or other first legal process that shall have been served
upon WMB or any such Person, but failure to notify the Underwriters
of such claim shall not relieve them from any liability which they
may have to WMB or any such Person except to the extent that they
have been materially prejudiced by such failure and provided
further that the failure to notify the Underwriters of such claim
shall not relieve them from any liability which they may have to
WMB or such Person otherwise than on account of their indemnity
agreement contained in this paragraph. The Underwriters shall be
entitled to participate at their own expense in the defense, or, if
they so elect, to assume the defense of any suit brought to enforce
any such liability, but, if the Underwriters elect to assume the
defense, such defense shall be conducted by counsel chosen by the
Underwriters. In the event that the Underwriters elect to
assume the defense of any such suit and retain such counsel, WMB,
its officers and directors or any WMB Controlling Person, defendant
or defendants in the suit, shall bear the fees and expenses of any
additional counsel retained by them, respectively unless (i) WMB,
its officers and directors or any WMB Controlling Person and the
Underwriters or Controlling Person shall have mutually agreed to
the retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both WMB, its
officers and directors or any WMB Controlling Person on the one
hand and the Underwriters or Controlling Person on the other hand
and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests
between them. It is understood that the Underwriters or
Controlling Person shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the
fees and expenses of more than one counsel for WMB, its officers
and directors or any WMB Controlling Person requesting
indemnification and that all such fees and expenses shall be
reimbursed as they are incurred. The Underwriters shall not
be liable to indemnify any Person for any settlement of any such
claim effected without the Underwriters’ consent, which
consent shall not be unreasonably withheld. The Underwriters
shall not, without the prior written consent of WMB, its officers
and directors or any WMB Controlling Person, as applicable, effect
any settlement of any pending or threatened proceeding in respect
of which WMB, its officers and directors or any WMB Controlling
Person, as applicable, is or could have been a party and indemnity
is or could have been sought hereunder by WMB, its officers and
directors or any WMB Controlling Person unless such settlement
includes an unconditional release of WMB, its officers and
directors or any WMB Controlling Person, as applicable, from all
liability on claims that are the subject matter of such proceeding
and does not include a statement as to or an admission of fault,
culpability or failure to act by, or on
