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INDYMAC HOME EQUITY MORTGAGE LOAN ASSET-BACKED TRUST,
SERIES 2006-H3
$496,786,000
INDYMAC HOME EQUITY MORTGAGE LOAN ASSET-BACKED NOTES,
SERIES 2006-H3
INDYMAC MBS, INC.
(DEPOSITOR)
INDYMAC BANK, F.S.B.
(SPONSOR/SELLER)
UNDERWRITING AGREEMENT
September 27, 2006
Lehman Brothers Inc.
("Lehman") as an
Underwriter
(an
"Underwriter") named herein
745 Seventh Avenue
New York, New York 10019
Bear, Stearns & Co. Inc.
("Bear") as an
Underwriter
(an
"Underwriter") named herein
383 Madison Avenue
New York, New York 10179
Credit Suisse Securities (USA) LLC
("Credit
Suisse") as an Underwriter
(an
"Underwriter") named herein
Eleven Madison Avenue
New York, New York 10010
Goldman, Sachs & Co.
("Goldman") as
an Underwriter
(an
"Underwriter") named herein
85 Broad Street
New York, New York 10004
IndyMac Securities Corporation
("IndyMac") as
an Underwriter
(an
"Underwriter") named herein
155 N. Lake Avenue, 6th Floor
Pasadena, California 91101
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Ladies and Gentlemen:
1. Introductory. IndyMac MBS, Inc., a Delaware corporation (the
"Depositor") proposes to sell approximately $496,786,000 principal
amount of its
Class A IndyMac Home Equity Mortgage Loan Asset-Backed Notes,
Series 2006-H3
(the "Notes") issued by IndyMac Home Equity Mortgage Loan
Asset-Backed Trust,
Series 2006-H3 (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 September 14, 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 XL Capital
Assurance Inc. (the
"Insurer") pursuant to an Insurance and Indemnity Agreement, dated
as of
September 29, 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 September 19, 2006 (the "Trust Agreement" and as
amended and
restated on September 29, 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
September 29, 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 September 29, 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 September 14, 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 September 29, 2006 (the "Administration
Agreement"),
among the Issuing Entity, the Administrator, the Owner Trustee and
the
Depositor. An indemnification agreement, dated as of September 29,
2006 (the
"Indemnification Agreement"), among Lehman, Bear, Credit Suisse,
Goldman,
IndyMac, and the Insurer, will govern the liability of such parties
with respect
to the
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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:
(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
September 27, 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
September 25, 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
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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 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 as of the Closing
Date, 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
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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
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
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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.
(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
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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.
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, 1675 Broadway, 25th Floor, New York, New York
10019-5820 at
10:00 a.m., New York time on September 29, 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:
(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.
(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 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.
(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.
(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.
(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
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corporation in any jurisdiction in which it is not, on the date of
this
Agreement,
subject to such service or process or such taxation.
(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.
(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 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.
(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.
(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."
(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, societe 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.
(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.
(n) In connection with any ABS Informational and Computational
Materials
and Issuer Free Writing Prospectuses, the Sponsor will receive
a
letter
from 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.
(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.
(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.
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
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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 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:
(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.
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.
(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
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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.
(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 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.
(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.
(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
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(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.
(e) All Issuer Free Writing Prospectuses and Underwriter Free
Writing
Prospectuses shall contain legends similar to the following
legends in
all material respects and may contain additional legends as
permitted
by law:
(i) The depositor has filed a registration statement
