INDYMAC HOME EQUITY MORTGAGE LOAN ASSET-BACKED
TRUST,
SERIES 2006-H2
$486,654,000
INDYMAC HOME EQUITY MORTGAGE LOAN ASSET-BACKED NOTES,
SERIES 2006-H2
INDYMAC MBS, INC.
(DEPOSITOR)
INDYMAC BANK, F.S.B.
(SPONSOR/SELLER)
UNDERWRITING AGREEMENT
June 26, 2006
Lehman Brothers, Inc.
(“ Lehman ”) as an
Underwriter
(a “ Underwriter
”) named herein
745 Seventh Avenue
New York, New York 10019
Bear, Stearns & Co. Inc.
(“ Bear ”) as an
Underwriter
(a “ Underwriter
”) named herein
383 Madison Avenue
New York, New York 10179
UBS Securities LLC
(“ UBS ”) as an
Underwriter
(a “ Underwriter
”) named herein
1285 Avenue of the Americas
New York, New York 10019
IndyMac Securities
Corporation
(“ IndyMac ”) as
an Underwriter
(a “ Underwriter
”) named herein
155 N. Lake Avenue, 6 th Floor
Pasadena, California 91101
Ladies and Gentlemen:
1.
Introductory . IndyMac MBS, Inc., a Delaware corporation
(the “ Depositor ”) proposes to sell
approximately $486,654,000 principal amount of its Class A IndyMac
Home Equity Mortgage Loan Asset-Backed Notes, Series 2006-H2 (the
“ Notes ”) issued by cause IndyMac Home Equity
Mortgage Loan Asset-Backed Trust, Series 2006-H2 (the
“ Issuing Entity
”) to the Underwriters named in Schedule I attached hereto
pursuant to this underwriting agreement (the “
Agreement ”). The assets of the Issuing Entity
include, among other things, a pool of adjustable rate home equity
line of credit loans made or to be made in the future under certain
home equity revolving credit line loan agreements (the “
HELOCs ”) secured by first or junior lien deeds of
trust or mortgages on properties that are primarily one- to
four-family residential properties to be delivered on the Closing
Date (as defined below) (the “ Mortgage Loans ”)
and all monies due under the HELOCs after the close of business on
June 19, 2006 (the “ Cut-off Date ”) (exclusive
of payments in respect of accrued interest due on or prior to the
Cut-off Date) and property that secured a Mortgage Loan which has
been acquired by foreclosure or deed in lieu of foreclosure. In
addition, the Notes will have the benefit of an irrevocable and
unconditional note guaranty insurance policy (the “
Policy ”) to be issued by AMBAC Assurance Corporation
(the “ Insurer ”) pursuant to an Insurance and
Indemnity Agreement, dated as of June 27, 2006 (the “
Insurance Agreement ”) among the Insurer, the
Depositor, IndyMac Bank, F.S.B. (the “ Sponsor
”), as seller and servicer, the Issuing Entity and Deutsche
Bank National Trust Company as indenture trustee (the “
Indenture Trustee ”).
The
Issuing Entity will be formed pursuant to a Trust Agreement, dated
as of June 13, 2006 (the “ Trust Agreement ” and
as amended and restated on June 27, 2006, the “ Amended
and Restated Trust Agreement ”), among the Depositor,
Wilmington Trust Company (the “ Owner Trustee ”)
and Deutsche Bank National Trust Company, as administrator (the
“ Administrator ”) and the Notes will be issued
pursuant to an Indenture (the “ Indenture ”),
dated as of June 19, 2006, between the Issuing Entity and the
Indenture Trustee. The Mortgage Loans and certain other assets of
the Issuing Entity will be sold by the Sponsor to the Depositor
pursuant to a separate Mortgage Loan Purchase Agreement, dated as
of June 19, 2006 (the “ Purchase Agreement ”)
between the Depositor and the Sponsor, and by the Depositor to the
Issuing Entity pursuant to the Sale and Servicing Agreement, dated
as of June 19, 2006 (the “ Sale and Servicing
Agreement ”), among the Issuing Entity, the Depositor,
IndyMac Bank, F.S.B., as seller and as servicer (the “
Servicer ”) and the Indenture Trustee. The Issuing
Entity will be administered pursuant to the administration
agreement, dated as of June 19, 2006 (the “ Administration
Agreement ”), among the Issuing Entity, the
Administrator, the Owner Trustee and the Depositor. An
indemnification agreement, dated as of June 27, 2006 (the “
Indemnification Agreement ”), among Lehman, Bear, UBS,
IndyMac and the Insurer, will govern the liability of such parties
with respect to the losses resulting from material misstatements or
omissions contained in the Prospectus Supplement (as defined
below).
This
Agreement, the Insurance Agreement, the Trust Agreement, the
Amended and Restated Trust Agreement, the Indenture, the Purchase
Agreement, the Sale and Servicing Agreement, the Administration
Agreement, the Indemnification Agreement and the Policy are
collectively referred to herein as the “ Basic
Documents .”
Capitalized
terms used and not otherwise defined herein shall have the meanings
given them in the Sale and Servicing Agreement.
2.
Representations and Warranties of the Depositor and the
Sponsor .
(a)
The Depositor represents and warrants to and agrees with the
Underwriters that:
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(i)
The Depositor has filed with the Securities and Exchange Commission
(the “ Commission ”), a registration statement
(No. 333-132042) on Form S-3 for the registration under the
Securities Act of 1933, as amended (the “ Act
”), in conformity with the rules and regulations (the “
Rules and Regulations ”) of the Commission, of
Mortgage Pass Through Certificates and Mortgage Pass-Through Notes
(issuable in series), which registration statement, as amended at
the date hereof, has become effective. Such registration statement,
as amended to the date of this Agreement, meets the requirements
set forth in Rule 415(a)(1)(vii) or (x) under the Act and complies
in all other material respects with such Rule. As used in this
Underwriting Agreement, “ Effective Time ” means
the date and the time as of which the latter of (i) such
Registration Statement, or the most recent post effective amendment
thereto, if any, was declared effective by the Commission or (ii)
the document most recently filed with the Commission was
incorporated into such Registration Statement; “ Effective
Date ” means the date of the Effective Time; “
Registration Statement ” means such registration
statement, at the Effective Time, including any documents
incorporated by reference therein at such time; and “
Prospectus ” means the final prospectus, as first
supplemented by a prospectus supplement dated June 26, 2006 (the
“ Prospectus Supplement ”) relating to the
Notes, as first filed with the Commission pursuant to paragraph (1)
or (4) or (5) of Rule 424(b) of the Rules and Regulations; and
“ Pricing Free Writing Prospectus ” means the
free writing prospectus relating to the Offered Notes dated June
23, 2006 that has been filed with the Commission pursuant to Rule
433 of the Rules and Regulations. Reference made herein to the
Prospectus shall be deemed to refer to and include any documents
incorporated by reference therein pursuant to Item 12 of Form S-3
under the Act, as of the date of the Prospectus and any reference
to any amendment or supplement to the Prospectus shall be deemed to
refer to and include any document filed under the Securities
Exchange Act of 1934, as amended (the “ Exchange Act
”), after the date of the Prospectus and incorporated by
reference in the Prospectus on or prior to the Closing Date; and
any reference to any amendment to the Registration Statement shall
be deemed to include any report filed with the Commission with
respect to the Trust pursuant to Section 13(a) or 15(d) of the
Exchange Act as of the Effective Time that is incorporated by
reference in the Registration Statement. As of the date hereof and
at the Closing Date, there are no contracts or documents of the
Depositor which are required to be filed as exhibits to the
Registration Statement pursuant to the Act or the Rules and
Regulations on or prior to each such date which have not been so
filed or incorporated by reference therein on or prior to the
effective date of the Registration Statement. The conditions for
use as of the Effective Time by the Depositor of the Registration
Statement on Form S-3 under the Act have been satisfied.
(ii)
The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or
the Prospectus will, when they become effective, are used or are
filed with the Commission, as the case may be, conform in all
respects to the requirements of the Act and the Rules and
Regulations. The Pricing Free Writing Prospectus as of the date
hereof conforms in all respect to the requirements of the Act and
the Rules and Regulations. The Registration Statement, as of the
Effective Date thereof and as of the date of any amendment thereto,
did not contain an 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 (as defined herein), as of its date, did not
contain an 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. The Pricing Free
Writing
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Prospectus (including any
information provided by the Sponsor as contemplated by Item 1105 of
Regulation AB relating to securitized pools (“ Static Pool
Data ”) referred to therein), as of its date and as of
the date of each Contract of Sale, and the Prospectus (including
any Static Pool Data referred to therein), as of its date and as
amended or supplemented as of the Closing Date, do not and will not
contain any untrue statement of a material fact or omit 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; provided that no representation or warranty is made as
to (i) any Derived Information (as defined in Section 6(f) below
and (ii) the Underwriters’ Information (as defined in Section
8(a) below).
(iii)
The Notes meet the requirements for the public offering thereof to
be registered on Form S-3 under the Act.
(iv)
Since the respective dates as of which information is given in the
Prospectus, there has not been any material adverse change in the
general affairs, management, financial condition, or results of
operations of the Depositor, otherwise than as set forth or
contemplated in the Prospectus as supplemented or amended as of the
Closing Date.
(v)
The Depositor has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of
Delaware, is duly qualified to do business and is in good standing
as a foreign corporation in each jurisdiction in which its
ownership or lease of property or the conduct of its business
requires such qualification and the failure to be so qualified
would have a material adverse effect on the financial condition or
operations of the Depositor, and has all power and authority
necessary to own or hold its properties, to conduct the business in
which it is engaged and to enter into and perform its obligations
under the Basic Documents and to cause the Notes to be
issued.
(vi)
Except as disclosed in the Pricing Free Writing Prospectus and the
Prospectus, there are no actions, proceedings or investigations
pending before or threatened by any court, administrative agency or
other tribunal to which the Depositor is a party or of which any of
its properties is the subject (a) which if determined adversely to
the Depositor would have a material adverse effect on the business
or financial condition of the Depositor, (b) asserting the
invalidity of the Agreements or the Notes, (c) seeking to prevent
the issuance of the Notes or the consummation by the Depositor of
any of the transactions contemplated by any of the Basic Documents,
or (d) which might adversely affect the performance by the
Depositor of its obligations under, or the validity or
enforceability of, any of the Basic Documents or the
Notes.
(vii)
This Agreement has been, and each other Basic Document to which it
is a party, when duly executed and delivered as contemplated hereby
and thereby will have been, duly authorized, executed and delivered
by the Depositor. The execution, delivery and performance of this
Agreement and each of the other Basic Documents to which it is a
party and the issuance and sale of the Notes and compliance with
the terms and provisions hereof will not result in a breach or
violation of any of the terms and provisions of, or constitute a
default under, any agreement or instrument to which the Depositor
is a party or by which the Depositor is bound or to which any of
the properties of the Depositor is subject which could reasonably
be expected to have a material adverse effect on the transactions
contemplated herein. The Depositor has full corporate power and
authority to (a) cause the Issuing Entity to authorize
the
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Indenture Trustee to execute and
deliver the Notes to the Depositor and (b) sell the Notes to the
Underwriters, all as contemplated by this Agreement.
(viii)
This Agreement constitutes, and each other Basic Document to which
it is a party, when executed and delivered as contemplated herein
will constitute legal, valid and binding instruments enforceable
against the Depositor in accordance with their respective terms,
subject as to enforceability to (x) applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws
affecting creditors rights generally, (y) general principles of
equity (regardless of whether enforcement is sought in a proceeding
in equity or at law) and (z) with respect to rights of indemnity
under this Agreement, limitations of public policy under applicable
securities laws.
(ix)
Neither the Depositor nor the trust created by the Trust Agreement
is an “investment company” within the meaning of such
term under the Investment Company Act of 1940 (the “ 1940
Act ”) and the rules and regulations of the Commission
thereunder.
(x)
The Notes, when duly and validly authorized by the Depositor and
when executed and authenticated as specified in the Indenture and
delivered and paid for pursuant hereto, will be validly issued and
outstanding and will be entitled to the benefits of the
Indenture.
(xi)
At the time of execution and delivery of the Indenture, the
Mortgage Loans and related property will have been duly and validly
assigned to the Indenture Trustee in accordance with the Basic
Documents; and when such assignment is effected, a duly and validly
perfected transfer of all such Mortgage Loans will have occurred,
subject to no prior lien, mortgage, security interest, pledge,
charge or other encumbrance created by the Depositor or the
Sponsor.
(xii)
Neither the transfer of the Mortgage Loans and other Issuing Entity
assets conveyed by it to the Issuing Entity pursuant to the Sale
and Servicing Agreement from the Depositor to the Issuing Entity,
nor the issuance, sale and delivery of the Notes, nor the
fulfillment of the terms of the Notes, will (A) conflict with, or
result in a breach, violation or acceleration of, or constitute a
default under, any term or provision of the Certificate of
Incorporation or the By-Laws of the Depositor, (B) conflict with or
result in a material breach or material violation of any indenture
or other agreement or instrument to which the Depositor is a party
or by which it or its properties is bound or (C) result in a
violation of or contravene the terms of any statute, order or
regulation applicable to the Depositor of any court, regulatory
body, administrative agency, governmental body or arbitrator having
jurisdiction over the Depositor or will result in the creation of
any lien upon any material property or assets of the
Depositor.
(xiii)
Any taxes, fees and other governmental charges in connection with
the execution, delivery and performance by the Depositor of the
Basic Documents to which it is a party and the execution, delivery
and sale of the Notes shall have been paid or will be paid by or on
behalf of the Depositor at or prior to the Closing Date to the
extent then due.
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(xiv)
At the Closing Date, the Notes and the Basic Documents will conform
in all material respects to the descriptions thereof contained in
the Pricing Free Writing Prospectus and the Prospectus.
(xv)
As of the date hereof, the Sponsor is not an “ineligible
issuer” as defined in Rule 405 of the Rules and
Regulations.
(xvi)
The initial effective date of the Registration Statement was within
three years of the Closing Date. If the third anniversary of the
initial effective date occurs during the time the Underwriters are
offering securities which have not been sold since the Closing
Date, the Sponsor will take such actions as may be necessary or
appropriate to permit the public offering and sale of the
securities as contemplated hereunder.
(b)
The Sponsor represents and warrants to and agrees with the
Underwriters that:
(i)
Since the respective dates as of which information is given in the
Pricing Free Writing Prospectus and the Prospectus, there has not
been any material adverse change in the general affairs,
management, financial condition, or results of operations of the
Sponsor, otherwise than as set forth or contemplated in the Pricing
Free Writing Prospectus and the Prospectus as supplemented or
amended as of the Closing Date.
(ii)
This Agreement constitutes, and each other Basic Document to which
it is a party, when executed and delivered as contemplated herein
will constitute legal, valid and binding instruments enforceable
against the Sponsor in accordance with their respective terms,
subject as to enforceability to (x) applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws
affecting creditors rights generally or the rights of creditors of
institutions, the deposits of which are insured by the Federal
Deposit Insurance Corporation (“ FDIC ”), (y)
general principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law) and (z) with respect to
rights of indemnity under this Agreement, limitations of public
policy under applicable securities laws.
(iii)
At the time of execution and delivery of the Purchase Agreement,
the representations of the Sponsor therein are true and correct in
all material respects on and as of the date made or as of any other
date provided therein; provided that the remedies available
to you for any breach of the representations and warranties set
forth in Section 3.01 of the Purchase Agreement shall be limited to
the remedies set forth in that Section.
3.
Purchase, Sale and Delivery of the Notes . On the basis of
the representations, warranties and agreements herein contained,
but subject to the terms and conditions herein set forth, the
Depositor agrees to sell to the Underwriters, and each of the
Underwriters agree, severally and not jointly, to purchase from the
Depositor, the entire principal amount of the Notes set forth
opposite the name of such Underwriter in Schedule I hereto at the
purchase price set forth in Schedule I, plus any additional
original principal amount of Notes which such Underwriter may be
obligated to purchase pursuant to Section 10 hereof.
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The
Depositor will deliver the Notes to the Underwriters, against
payment of the purchase price to or upon the order of the Depositor
by wire transfer or check in Federal (same day) Funds, at the
offices of Mayer, Brown, Rowe & Maw LLP, 350 South Grand
Avenue, 25th Floor, Los Angeles, California 90071 at 10:00 a.m.,
New York time on June 27, 2006, or at such other time not later
than seven full business days thereafter as each of the
Underwriters and the Depositor determine, such time being herein
referred to as the “ Closing Date ”. The Notes
to be so delivered will be initially represented by one or more
Notes registered in the name of Cede & Co., the nominee of The
Depository Trust Company (“ DTC ”). The
interests of beneficial owners of the Notes will be represented by
book entries on the records of DTC and participating members
thereof. Definitive Notes will be available only under the limited
circumstances specified in the Indenture.
4.
Offering by the Underwriters . It is understood that the
Underwriters propose to offer the Notes for sale to the public
(which may include selected dealers), on the terms set forth in the
Prospectus and that the Underwriters will not offer, sell or
otherwise distribute such Notes (except for the sale thereof in
exempt transactions) in any state in which such Notes are not
exempt from registration under “blue sky” or state
securities laws (except where such Notes will have been qualified
for offering and sale at the Underwriter’s direction under
such “blue sky” or state securities laws).
5.
Covenants of the Depositor . The Depositor covenants and
agrees with the several Underwriters that:
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(a)
The Depositor will file the Prospectus, properly completed, with
the Commission pursuant to and in accordance with Rule 424(b) not
later than the time required thereby. The Depositor shall advise
each of the Underwriters promptly of any such filing pursuant to
Rule 424(b), and will make no further amendment or any supplement
to the Registration Statement or to the Prospectus prior to the
Closing Date except as permitted herein.
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(b)
The Depositor will furnish promptly to each of the Underwriters and
to counsel for the Underwriters a signed copy of the Registration
Statement as filed with the Commission, including all consents and
exhibits filed therewith.
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(c)
The Depositor shall advise each of the Underwriters promptly of any
proposal to amend or supplement the Registration Statement as filed
or the Prospectus within 30 days of the date of this Agreement or
the earlier termination of the offering and will not effect such
amendment or supplementation (other than and amendment or
supplement specifically relating to one or more series of
asset-backed securities other than the series that includes the
Notes) unless (i) the Depositor has given reasonable notice to the
Underwriters of its intention to file such amendment or supplement,
(ii) the Depositor 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; and the Depositor will also advise each of
the Underwriters promptly of (x) the effectiveness of the
Registration Statement (if the effective date thereof is subsequent
to the execution of this Agreement) and of any amendment or
supplement to the Registration Statement that occurs within 30 days
of this Agreement or (y) the filing of any supplement to the
Prospectus
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or of any amended Prospectus and
in each case to furnish each of the Underwriters with copies
thereof within 30 days or earlier termination of offering; the
Sponsor will advise each of the Underwriters upon its receipt of
notice thereof of the issuance by the Commission of any stop order
with respect to the Prospectus or: (i) any order preventing or
suspending the use of the Prospectus; (ii) the suspension of the
qualification of the Notes for offering or sale in any
jurisdiction; and (iii) the initiation of or threat of any
proceeding for any such purpose. In the event of the issuance of
any stop order or of any order preventing or suspending the use of
the Prospectus or suspending any such qualification, the Depositor
promptly shall use its best efforts to obtain the withdrawal of
such an order by the Commission.
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(d)
If, at any time when a Prospectus relating to the Notes is required
to be delivered under the Act, any event occurs as a result of
which the Prospectus as then amended or supplemented would contain
an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend or
supplement the Prospectus to comply with the Act, the TIA or the
rules thereunder, the Depositor promptly shall prepare and file
with the Commission, subject to paragraph (c) of this Section, an
amendment or supplement which will correct such statement or
omission, or an amendment or supplement which will effect such
compliance.
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(e)
The Depositor shall timely prepare and file, with the Commission,
on behalf of the Issuing Entity, all periodic reports required to
be filed pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of the Prospectus and, for so
long as the delivery of a prospectus is required in connection with
the offering or sale of the Notes.
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(f)
The Depositor will use its reasonable efforts, in cooperation with
the Underwriters, to arrange for the qualification of the Notes for
sale under the laws of such jurisdictions as the Underwriters
designate and will continue such qualifications in effect so long
as required for the distribution to be fully completed;
provided , however , that the Depositor shall not be
required to qualify to do business in any jurisdiction where it is
not qualified on the date of this 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 this Agreement,
subject to such service or process or such taxation.
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(g)
For a period from the date of this Agreement until the retirement
of the Notes, or until such time as the Underwriters shall cease to
maintain a secondary market in the Notes, whichever occurs first,
the Depositor shall deliver to each of the Underwriters, as soon as
such statements are furnished to the Indenture Trustee, the annual
statements of compliance and the annual independent certified
public accountants’ reports furnished to the Indenture
Trustee pursuant to the Sale and Servicing Agreement, as soon as
such statements and reports are furnished to the Indenture Trustee
and the Monthly Statement to the Noteholders pursuant to the Sale
and Servicing Agreement.
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(h)
So long as any of the Notes are outstanding, the Depositor shall
furnish to each of the Underwriters (i) as soon as practicable
after the end of the fiscal year
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all documents required to be
distributed to Noteholders or filed with the Commission on behalf
of the Issuing Entity pursuant to the Exchange Act, or any order of
the Commission thereunder and (ii) from time to time, any other
information concerning the Depositor as the Underwriters may
reasonably request only insofar as such information reasonably
relates to the transactions contemplated by the Basic Documents,
and which may be furnished by the Depositor or the Servicer without
any undue expense and without violation of applicable
law.
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(i)
To the extent, if any, that any of the ratings provided with
respect to the Notes by the rating agency or agencies that
initially rate the Notes are conditional upon the furnishing of
documents or the taking of any other actions by the Depositor, the
Depositor shall use its best efforts to cause such documents to be
furnished and such actions to be taken.
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(j)
The Depositor shall apply the net proceeds of the sale of the Notes
that it receives in the manner set forth in the Prospectus under
the caption “Use of Proceeds.”
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(k)
As between the Depositor and the Underwriters, the Depositor shall
pay or cause to be paid all costs and expenses incident to the
performance of its obligations under this Agreement, including but
not limited to (i) the printing and filing of the Registration
Statement and Prospectus and the printing of the Basic Documents,
but not any expenses associated with the delivery of such
documents, (ii) the preparation, issuance and delivery of the Notes
to the Underwriters, (iii) the fees and disbursements of the
Depositor’s counsel and accountants, (iv) the qualification
of the Notes under securities laws in accordance with the
provisions of Section 5(h), including filing fees and the fees and
disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of any blue sky or
legal investment survey, if any is requested, (v) the printing and
delivery to the Underwriters of copies of any blue sky or legal
investment survey prepared in connection with the Notes, (vi) any
fees charged by rating agencies for the rating of the Notes, (vii)
the fees and expenses of the Insurer and its counsel, (viii) any
fees and expenses of the Indenture Trustee or the Indenture
Trustee’s counsel and the Owner Trustee and the Owner
Trustee’s counsel incurred in connection with the
transactions described herein and (ix) any fees and expenses
associated with the registering the Notes with DTC, Clearstream
Banking, société anonyme or the Euroclear
System.
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(l)
On or prior to the date of issuance of the Notes, the Depositor
will obtain the Policy issued by the Insurer for the benefit of the
holders of the Notes.
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(m)
The Depositor will file with the Commission, in accordance with the
Rules and Regulations, tabular information concerning the Mortgage
Loans to the extent that the information set forth in the
Prospectus relates to a statistical cut-off date pool of mortgage
loans and also to file with the Commission, in accordance with the
Rules and Regulations, all ABS Informational and Computational
Materials and Issuer Free Writing Prospectuses (as each is defined
in Section 6 hereof) required to be filed within the applicable
time periods allotted for such filing pursuant to the Rules and
Regulations.
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(n)
In connection with any ABS Informational and Computational
Materials and Issuer Free Writing Prospectuses, the Sponsor will
receive a letter from
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Deloitte & Touche LLP
certified public accountants, satisfactory in form and substance to
the Sponsor, to the effect that such accountants have performed
certain specified procedures, all of which have been agreed to by
the Sponsor, as a result of which they have determined that the
information included in the ABS Informational and Computational
Materials and Issuer Free Writing Prospectuses (if any), is
accurate except as to such matters that are not deemed by the
Sponsor to be material. The foregoing letter shall be obtained at
the expense of the Sponsor.
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(o)
The Depositor shall not be required to file (1) any Issuer Free
Writing Prospectus, if the information included therein is included
or incorporated by reference in a prospectus or Issuer Free Writing
Prospectus previously filed with the Commission that relates to the
offering of the Notes or (2) any Issuer Free Writing Prospectus or
portion thereof that contains a description of the Notes or the
offering of the Notes which does not reflect the final terms
thereof.
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(p)
In connection with the Pricing Free Writing Prospectus (including
any Static Pool Data referred to therein that relates to
information after December 31, 2005 (“ Post December 31,
2005 Static Pool Data ”)), the Underwriters shall have
received, and in connection with the Prospectus (including any post
December 31, 2005 Static Pool Data), will receive, a letter from
Deloitte & Touche LLP certified public accountants,
satisfactory in form and substance to the Underwriters, to the
effect that such accountants have performed certain specified
procedures, all of which have been agreed to by the Underwriters,
as a result of which they have determined that the information
included in the Pricing Free Writing Prospectus and the Prospectus,
is accurate except as to such matters that are not deemed by the
Underwriter to be material. The foregoing letter shall be obtained
at the expense of the Underwriters.
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6.
Investor Information . Each Underwriter represents and
agrees with the Sponsor that not less than 24 hours prior (or such
shorter time as may be agreed upon between such Underwriter and the
Sponsor) to entering into any “contract of sale” as
defined in Rule 159 of the Act (each a “ Contract of
Sale ”), the Underwriter has conveyed the Pricing Free
Writing Prospectus to each prospective investor. Each Underwriter
shall keep sufficient records to document its conveyance of the
Pricing Free Writing Prospectus to each potential investor prior to
the related Contract of Sale and shall maintain such records as
required by the Rules and Regulations. An Underwriter may prepare
and have provided, and with respect to (ii) below, the Sponsor may
prepare and have provided, to prospective investors in connection
with its offering of the Notes (i) “ABS informational and
computational materials” as defined in Item 1101(a) of
Regulation AB promulgated by the Commission, which may include both
an Issuer Free Writing Prospectus and Derived Information
(collectively, “ ABS Informational and Computational
Materials ”), (ii) any “free writing
prospectus” within the meaning of Rule 405 under the Act that
describes the Notes and/or the Mortgage Loans and contains
information described in the definition of “ABS informational
and computational materials” in Item 1101(a) of Regulation AB
but which does not include information described in paragraph (5)
of such definition and does not include Derived Information (each,
an “ Issuer Free Writing Prospectus ”) or (iii)
any “free writing prospectus” within the meaning of
Rule 405 under the Act that includes only the information described
in paragraph (5) of the definition of “ABS informational and
computational materials” in Item 1101(a) of Regulation AB
(each, an “ Underwriter Free
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Writing Prospectus,
” and any ABS Informational
and Computational Material, Issuer Free Writing Prospectus and
Underwriter Free Writing Prospectus shall be referred to herein as
a “ Free Writing Prospectus ”), subject to the
following conditions:
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(a)
An Underwriter may furnish ABS Informational and Computational
Materials or an Issuer Free Writing Prospectus 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 Pricing Free Writing Prospectus to
such potential investor not less than 24 hours prior (or such
shorter time as may be agreed upon between such Underwriter and the
Sponsor) to such Contract of Sale and (y) such Underwriter shall
deliver a copy of the proposed ABS Informational and Computational
Materials or Issuer Free Writing Prospectus, not otherwise provided
by the Sponsor, to the Sponsor and its counsel at least 24 hours
prior to the anticipated first use.
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Unless
preceded or accompanied by a prospectus satisfying the requirements
of Section 10(a) of the Act, an Underwriter shall not convey any
written communication to any person in connection with the initial
offering of the Notes, 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 an Issuer Free Writing Prospectus, an Underwriter Free
Writing Prospectus or ABS Informational and Computational
Materials.
If
an Underwriter does not furnish ABS Informational and Computational
Materials or an Issuer Free Writing Prospectus to the
Sponsor’s counsel prior to the scheduled print date of the
Prospectus Supplement, such Underwriter will be deemed to have
represented that it did not convey any ABS Informational and
Computational Materials or Issuer Free Writing Prospectus to any
potential investor.
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(b)
An Underwriter may furnish an Underwriter Free Writing Prospectus
to (x) a potential investor not less than 24 hours prior (or such
shorter time as may be agreed upon between such Underwriter and the
Sponsor) 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 such Underwriter has
conveyed the Pricing Free Writing Prospectus to such potential
investor not less than 24 hours prior (or such shorter time as may
be agreed upon between such Underwriter and the Sponsor) to such
Contract of Sale and (y) to an investor after a Contract of Sale;
provided, that such Underwriter has conveyed the Pricing Free
Writing Prospectus to such investor not less than 24 hours (or such
shorter time as may be agreed between such Underwriter and the
Sponsor) prior to such Contract of Sale. Each Underwriter agrees
that it shall not broadly disseminate any Underwriter Free Writing
Prospectus.
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(c)
The Underwriters shall provide to the Sponsor any ABS Informational
and Computational Materials, not otherwise provided by the Sponsor,
which are provided to investors, together, in the case of any ABS
Informational and Computational Materials, with a letter,
reasonably acceptable to the Underwriters and the Sponsor, from
Deloitte & Touche LLP with regard to such ABS Informational and
Computational Materials, no later than the two Business Days
following the date such ABS Informational and Computational
Materials
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are conveyed. The Underwriters
may provide copies of the foregoing in a consolidated or aggregated
form including all information required to be filed. The materials
so furnished shall be furnished to the Sponsor in hard copy and on
computer disk.
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(d)
In the event that any Underwriter or the Sponsor becomes aware
that, as of the time of the Contract of Sale, any Free Writing
Prospectus delivered to a purchaser of a Note 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, a “ Defective
Free Writing Prospectus ”), such Underwriter or the
Sponsor, as applicable, shall notify the other parties to this
Agreement thereof within one business day after discovery. If the
untrue statement or omission from the Defective Free Writing
Prospectus was not contained in or omitted from any Derived
Information in such Defective Free Writing Prospectus and if any
Underwriter shall incur any costs in connection with the
reformation or termination of the Contract of Sale, the Sponsor
agrees to reimburse such Underwriter for such costs promptly. Each
Underwriter agrees to use reasonable efforts to mitigate such
costs.
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(i)
If such Defective Free Writing Prospectus is an Issuer Free Writing
Prospectus, the Sponsor shall prepare an Issuer Free Writing
Prospectus with corrective information that corrects the material
misstatement in or omission from such Defective Free Writing
Prospectus, and if such Defective Free Writing Prospectus is an
Underwriter Free Writing Prospectus, the Underwriter shall prepare
an Underwriter Free Writing Prospectus with corrective information
that corrects the material misstatement in or omission from such
Defective Free Writing Prospectus (each such corrected Free Writing
Prospectus, a “ Corrected Free Writing Prospectus
”);
(ii)
The Underwriters shall deliver the Corrected Free Writing
Prospectus to each purchaser of a Note which received the Defective
Free Writing Prospectus prior to entering into an agreement to
purchase any Offered Notes and the terms of which have been revised
in the Corrected Free Writing Prospectus;
(iii)
The Underwriters shall notify such purchaser in a prominent fashion
that the prior agreement to purchase Notes has been terminated, and
of such purchaser’s rights as a result of termination of such
agreement; and
(iv)
The Underwriters shall provide such purchaser with an opportunity
to affirmatively agree to purchase such Notes on the terms
described in the Corrected Free Writing Prospectus.
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(e)
All Issuer Free Writing Prospectuses and Underwriter Free Writing
Prosp
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