Exhibit 99.4
Item 1115 Agreement dated as of February 27, 2006 (this
"Agreement"), between IndyMac Bank, F.S.B., a federal savings bank ("IndyMac
Bank"), IndyMac MBS, Inc., a Delaware corporation ("IndyMac MBS") and Xxxxxx
Xxxxxxx Capital Services Inc., as counterparty (the "Counterparty").
RECITALS
WHEREAS, IndyMac MBS has filed a Registration Statement on Form
S-3 (a "Registration Statement") with the Securities and Exchange Commission
(the "Commission") for purposes of offering mortgage backed notes and/or
certificates (the "Securities") through special purpose vehicles (each, an
"SPV").
WHEREAS, from time to time, on the closing date (the "Closing
Date") of a transaction pursuant to which Securities are offered (each, a
"Transaction"), the Counterparty and the SPV enter into certain derivative
agreements (each, a "Derivative Agreement"), including interest rate or
currency swaps, for purposes of providing certain yield enhancements to the
SPV or the related trustee on behalf of the SPV or a swap or corridor contract
administrator (each, an "Administrator").
NOW, THEREFORE, in consideration of the mutual agreements set
forth herein and for other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereby agree as follows:
Section 1. Definitions
Company Information: As defined in Section 4(a)(i).
Company Financial Information: As defined in Section 2(a)(ii).
Depositor: Means IndyMac MBS .
GAAP: As defined in Section 3(a)(v).
XXXXX: The Commission's Electronic Data Gathering, Analysis and
Retrieval system.
Exchange Act: The Securities Exchange Act of 1934, as amended
and the rules and regulations promulgated thereunder.
Exchange Act Reports: All Distribution Reports on Form 10-D,
Current Reports on Form 8-K and Annual Reports on Form 10-K that are to be
filed with respect to the related SPV pursuant to the Exchange Act.
IndyMac Information: Information other than Company Information
in any Prospectus Supplement or other offering document for a Transaction or
in any Exchange Act Report.
Master Agreement: The ISDA Master Agreement assumed to apply to
the Derivative Agreement pursuant to its terms.
Prospectus Supplement: The prospectus supplement prepared in
connection with the public offering and sale of the related Securities.
Regulation AB: Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended
from time to time, and subject to such clarification and interpretation as
have been provided by the Commission in the adopting release (Asset-Backed
Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531
(Jan. 7, 2005)) or by the staff of the Commission, or as may be provided by
the Commission or its staff from time to time.
Securities Act: The Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
Section 2. Information to be Provided by the Counterparty.
(a) Prior to printing the related Prospectus Supplement,
(i) the Counterparty shall provide to the Depositor such
information regarding the Counterparty, as a derivative
instrument counterparty, as is reasonably requested by the
Depositor for the purpose of compliance with Item
1115(a)(1) of Regulation AB, but only to the extent
required by Item 1115(a) of Regulation AB (as determined
by the Depositor). Such information shall include, at a
minimum, the following information:
(A) the Counterparty's legal name (and any d/b/a);
(B) the organizational form of the Counterparty;
(C) a description of the general character of the
business of the Counterparty;
(D) a description of any affiliation between the
Counterparty and any of the following parties:
(1) Deutsche Bank National Trust Company (or any
other trustee identified to the Counterparty by
IndyMac Bank in writing at least ten business
days prior to such printing);
(2) any originator contemplated by Item 1110 of
Regulation AB and identified to the
Counterparty by IndyMac Bank in writing at
least ten business days prior to such printing;
(3) any enhancement or support provider
contemplated by Items 1114 or 1115 of
Regulation AB and identified to the
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Counterparty by IndyMac Bank in writing at
least ten business days prior to such printing;
and
(4) any other material transaction party
contemplated by Item 1100(d)(1) of Regulation
AB and identified to the Counterparty by
IndyMac Bank in writing at least ten business
days prior to such printing.
(ii) if requested by the Depositor for the purpose of
compliance with Item 1115(b) with respect to a
Transaction, as a result of IndyMac Bank's determination
of the significance percentage of the Derivative Agreement
in accordance with Item 1115 of Regulation AB (the
"Significance Percentage"), the Counterparty shall:
(A) provide the financial data required by Item
1115(b)(1) or (b)(2) of Regulation AB (as determined
by IndyMac Bank and as specified by the Depositor to
the Counterparty in writing promptly upon (I) the
determination that a Derivative Agreement will be
required to be entered into in connection with the
related Transaction prior to such printing or (II) if
sooner, upon the request by the Counterparty as to
whether such financial data will be required with
respect to such Derivative Agreement) with
respect to the Counterparty (or any entity that
consolidates the Counterparty) and any affiliated
entities providing derivative instruments to the SPV
(the "Company Financial Information"), in a form
appropriate for use in the Prospectus Supplement and
in an XXXXX-compatible format (if not incorporated by
reference) and hereby authorizes the Depositor to
incorporate by reference the financial data required
by Item 1115(b)(2) of Regulation AB; and
(B) if applicable, cause its accountants to issue their
consent to the filing or the incorporation by
reference of such financial statements in the
Registration Statement;
provided, however, that in lieu of providing the information
specified in clauses (A) and (B) above, the Counterparty may,
in its sole discretion, either cause another entity to replace
the Counterparty pursuant to clause (A) of Section 5(b)(i) or,
if effective to eliminate (in IndyMac Bank's reasonable
determination) the information reporting requirement set forth
in clause (A) herein, post collateral pursuant to clause (B) of
Section 5(b)(i).
(b) Following the Closing Date with respect to a Transaction, but
only with respect to Exchange Act Reports required to be filed
under the Exchange Act for the applicable SPV,
(i) the Counterparty shall, within ten business days after the
applicable event, (1) notify the Depositor in writing of
any affiliations that develop following the Closing Date
between the Counterparty and any of the parties specified
in Section 2(a)(i)(D) (and any other parties with respect
to the
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Transaction contemplated by clauses (1) through (6)
of Item 1119(a) of Regulation AB and identified in writing
by the Depositor at least ten business days prior to the
Counterparty's furnishing such notice and (2) provide to
the Depositor a description of the nature of such
affiliations;
(ii) if the Counterparty provided Company Financial Information
to the Depositor for the Prospectus Supplement, within 5
Business Days of the release of any updated financial
data, the Counterparty shall, in the Company's sole
discretion, either (A) (1) provide current Company
Financial Information as required under Item 1115(b) of
Regulation AB to the Depositor in an XXXXX-compatible
format (if not incorporated by reference) and hereby
authorizes the Depositor to incorporate by reference the
financial data required by Item 1115(b)(2) of Regulation
AB, and provided, however, for the avoidance of doubt,
that the Counterparty shall not be obligated to provide
such updated financial data or any related accountants'
consent if and for so long as the Significance Percentage
has been reduced below the percentage for which such
updated financial data and/or related accountants' consent
are required, as set forth in Section 4(a)(ii) below, (2)
if applicable, cause its accountants to issue their
consent to filing or incorporation by reference of such
financial statements in the Exchange Act Reports of the
SPV; or (B) either cause another entity to replace the
Counterparty pursuant to clause (A) of Section 5(b)(i) or,
if effective to eliminate (in IndyMac Bank's reasonable
determination) the information reporting requirement set
forth in clause (A) herein, post collateral pursuant to
clause (B) of Section 5(b)(i), and
(iii) if the Depositor requests Company Financial Information
from the Counterparty for the purpose of compliance with
Item 1115(b) of Regulation AB following the Closing Date,
as a result of IndyMac Bank's determination of the
Significance Percentage, the Counterparty shall promptly
upon determination that Company Financial Information will
be required from the Counterparty, but in no event later
than within 5 Business Days after its receipt of written
notice requesting same either, in the Counterparty's sole
discretion, (A)(1) provide current Company Financial
Information as required under Item 1115(b)(1) or (b)(2) of
Regulation AB (as reasonably determined by IndyMac Bank)
to the Depositor in an XXXXX-compatible format (if not
incorporated by reference) and hereby authorizes the
Depositor to incorporate by reference the financial data
required by Item 1115(b)(2) of Regulation AB, (2) if
applicable, cause its accountants to issue their consent
to filing or incorporation by reference of such financial
statements in the Exchange Act Reports of the SPV and (3)
within 5 Business Days of the release of any updated
financial data, provide current Company Financial
Information as required under Item 1115(b) of Regulation
AB to the Depositor in an XXXXX-compatible format and if
applicable, cause its accountants to issue their consent
to filing or incorporation by reference of such financial
statements in the
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Exchange Act Reports of the SPV provided, however, for the
avoidance of doubt, that the Counterparty shall not be
obligated to provide such updated financial data or any
related accountants' consent if and for so long as the
Significance Percentage has been reduced below the
percentage for which such updated financial data and/or
related accountants' consent are required, as set forth in
Section 4(a)(ii) below, or (B) in its sole discretion,
either cause another entity to replace the Counterparty
pursuant to clause (A) of Section 5(b)(i) or, if effective
to eliminate (in IndyMac Bank's reasonable determination)
the information reporting requirement set forth in clause
(A) herein, post collateral pursuant to clause (B) of
Section 5(b)(i).
Section 3. Representations and Warranties and Covenants of the Counterparty.
(a) The Counterparty represents and warrants to the Depositor, as
of the date on which information is first provided to the
Depositor under Section 2(a)(ii), Section 2(b)(ii) or Section
2(b)(iii)(A), that, except as disclosed in writing the
Depositor prior to such date:
(i) The Counterparty or the entity that consolidates the
Counterparty is required to file reports with the
Commission pursuant to section 13(a) or 15(d) of the
Exchange Act.
(ii) The Counterparty or the entity that consolidates the
Counterparty has filed all reports and other materials
required to be filed by such requirements during the
preceding 12 months (or such shorter period that such
party was required to file such reports and materials).
(iii) The reports filed by the Counterparty, or entity that
consolidates the Counterparty, include (or properly
incorporate by reference) the financial statements of the
Counterparty (or the financial statements of the entity
that consolidates the Counterparty to the extent the
Counterparty properly determines that only the financial
statements of such consolidating entity are required
pursuant to the Rule 3-10 of Regulation S-X under the
Securities Act and the Exchange Act).
(iv) The accountants who certify the financial statements and
supporting schedules included in the Company Financial
Information (if applicable) are independent registered
public accountants as required by the Securities Act.
(v) If applicable, the financial statements included in the
Company Financial Information present fairly the
consolidated financial position of the Counterparty (or
the entity that consolidates the Counterparty) and its
consolidated subsidiaries as at the dates indicated and
the consolidated results of their operations and cash
flows for the periods specified; except as otherwise
stated in the Company Financial Information, said
financial
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statements have been prepared in conformity with generally
accepted accounting principles ("GAAP") applied on a
consistent basis; and the supporting schedules included in
the Company Financial Information present fairly in
accordance with GAAP the information required to be stated
therein. The selected financial data and summary financial
information included in the Company Financial Information
present fairly the information shown therein and have been
compiled on a basis consistent with that of the audited
financial statements of the Counterparty.
(vi) The Company Financial Information and other Company
Information included or incorporated by reference in the
Registration Statement (including through filing on an
Exchange Act Report), at the time they were or hereafter
are filed with the Commission, complied in all material
respects with the requirements of Item 1115(b)(1) or
(b)(2), as applicable, of Regulation AB (in the case of
the Company Financial Information) and, did not and will
not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading.
(b) If the Counterparty has provided Company Financial Information
that is incorporated by reference into the Registration
Statement of the Depositor, the Counterparty, so long as the
Depositor is required to file Exchange Act Reports with respect
to the SPV, will file promptly all documents required to be
filed with the Commission pursuant to Section 13 or 14 of the
1934 Act.
(c) If at any time the representations and warranties set forth in
3(a)(i) through (iii) are no longer true and correct, the
Counterparty shall provide notice to the Depositor, and if any
Company Financial Information is required to be included in the
Registration Statement, or the Exchange Act Reports of the SPV,
will provide to the Depositor such Company Financial
Information in XXXXX-compatible format no later than ten
calendar days after any of the representations or warranties in
Section 3(a)(i) through (iii) ceased to be correct, it being
understood that providing such Company Financial Information
shall be deemed to cure any breach of such representations and
warranties.
(d) The Counterparty agrees that Section 5(b)(i) of this Agreement
shall be incorporated by reference into any Derivative
Agreement so that each SPV who is a beneficiary of a Derivative
Agreement shall be an express third party beneficiary of this
Agreement; provided, however, that the obligations of the
Counterparty under this Agreement shall not be covered by any
guaranty of the Derivative Agreement.
Section 4. Covenants of the Depositor.
(a) If the Depositor requires the Counterparty to either
furnish Company Financial Information or post collateral pursuant to clause (B)
of Section 5(b)(i), and
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the obligation to file such Company Financial Information is not, in IndyMac
Bank's determination, suspended upon the Significance Percentage being reduced
below the percentage that trigger such reporting requirement, IndyMac Bank
hereby covenants with the Counterparty as follows:
(i) IndyMac Bank shall calculate the Significance
Percentage on a monthly basis in accordance with Item 1115 of Regulation AB,
and shall be solely responsible for such calculation (including, without
limitation, any adjustments thereto resulting from the posting of collateral);
(ii) IndyMac Bank shall promptly notify the Counterparty
(A) when the Significance Percentage has subsequently reduced below (x) 20%, if
applicable (in which event the Company Financial Information required to be
provided by the Counterparty pursuant to Section 2(b)(iii), subject to clause
(B) thereof, shall be the information required under Item 1115(b)(1) of
Regulation AB, or (y) 10%, if applicable (in which event IndyMac Bank shall
cause Exchange Act Reports thereafter filed not to include or incorporate by
reference any Company Financial Information and IndyMac Bank shall promptly
return all collateral, if any, previously posted by the Counterparty); and
(iii) Upon reasonable request, IndyMac shall provide the
Counterparty its calculation of the Significance Percentage.
(b) IndyMac is solely responsible for calculation of the
Significance Percentage on a monthly basis in accordance with Item 1115 of
Regulation AB (including, without limitation, any adjustments thereto
resulting from the posting of collateral).
Upon delivery to IndyMac Bank the Company Financial
Information, the Counterparty shall not be responsible for errors in IndyMac
Bank's filing of or incorporation by reference of such information into its
registration statement.
Section 5. Indemnification; Remedies
(a) The Counterparty shall indemnify IndyMac Bank and the
Depositor, each person responsible for the execution of a
certification pursuant to Rule 13a-14(d) or Rule 15d-14(d)
under the Exchange Act; each broker dealer acting as
underwriter, each person who controls any of such parties
(within the meaning of Section 15 of the Securities Act and
Section 20 of the Exchange Act); and the respective present and
former directors, officers, employees and agents of each of the
foregoing, and shall hold each of them harmless from and
against any losses, damages, penalties, fines, forfeitures,
legal fees and expenses and related costs, judgments, and any
other costs, fees and expenses that any of them may sustain
arising out of or based upon:
(i) (A) any untrue statement of a material fact contained or
alleged to be contained in any information, report,
accountants' consent or other material provided in written
or electronic form under Section 2 by or on behalf of the
Counterparty (collectively, the "Company Information"), or
(B) the
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omission or alleged omission to state in the Company
Information a material fact required to be stated in the
Company Information or necessary in order to make the
statements therein, in the light of the circumstances
under which they were made, not misleading; or
(ii) any failure by the Counterparty to deliver any
information, report, certification, accountants' consent
or other material or to assign the Derivative Agreement
when and as required under Section 2; or
(iii) any breach by the Counterparty of a representation or
warranty set forth in Section 3(a) and made as of a date
prior to the Closing Date, to the extent that such breach
is not cured by the Closing Date, or any breach by the
Counterparty of a representation or warranty pursuant to
Section 3 to the extent made as of a date subsequent to
the Closing Date, that is not cured in accordance with
Section 3(c) hereunder.
In the case of any failure of performance described in clause
(a)(ii) of this Section, the Counterparty shall promptly reimburse the
Depositor and each Person responsible for the preparation, execution or filing
of any report required to be filed with the Commission with respect to the
SPV, or for execution of a certification pursuant to Rule 13a-14(d) or Rule
15d-14(d) under the Exchange Act with respect to the SPV, for all costs
reasonably incurred by each such party in order to obtain the information,
report, certification, accountants' consent or other material not delivered as
required by the Counterparty.
(b) (i) If the Counterparty has failed to deliver, or elects
not to deliver, any information, report, or accountants'
consent when and as required under Section 2, or if there
is a material breach by the Counterparty of a
representation or warranty set forth in Section 3, which
continues for the lesser of ten calendar days after the
date on which such information, report, or accountants'
consent was required to be delivered or such period in
which the applicable Exchange Act Report for which such
information is required can be timely filed (without
taking into account any extensions permitted to be filed)
or after such material breach occurs, and the Counterparty
has not, at its own cost, within the period in which the
applicable Exchange Act Report for which such information
is required can be timely filed, either (A) caused another
entity (which meets any applicable ratings threshold in
the Derivative Agreement) to replace the Counterparty as
party to the Derivative Agreement that (i) has signed an
agreement with IndyMac Bank and the Depositor
substantially in the form of this Agreement, and (ii) has
agreed to deliver any information, report, certification
or accountants' consent when and as required under Section
2 hereof or (B) collateralize its obligations under the
Derivative Agreement such that in IndyMac Bank's
determination the Significance Percentage (which such
determination may, for the avoidance of doubt, take into
account any and all uncertainties or ambiguities
applicable to the determination of such percentage in
accordance with Item 1115) is reduced below the applicable
percentage that would require the provision
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of financial data with respect to the Counterparty under
Regulation AB, then an Additional Termination Event (as
defined in the Master Agreement) shall immediately and
automatically be deemed to have occurred with the
Counterparty as the sole Affected Party (as defined in the
Master Agreement). In the event of a termination resulting
from such Additional Termination Event, a termination
payment (if any) shall be payable by the applicable party
as determined by the application of Section 6(e)(ii) of
the Master Agreement.
(ii) In the event that the Counterparty or the SPV has found a
replacement entity in accordance with clause (i) above,
the Counterparty shall promptly reimburse the SPV for all
reasonable incidental expenses incurred by the SPV, as
such are incurred, in connection with the termination of
the Counterparty as counterparty and the entry into a new
Derivative Agreement. The provisions of this paragraph
shall not limit whatever rights the SPV may have under
other provisions of this Agreement or otherwise, whether
in equity or at law, such as an action for damages,
specific performance or injunctive relief.
(c) IndyMac Bank shall indemnify the Counterparty, each person who
controls any of the Counterparty (within the meaning of Section
15 of the Securities Act and Section 20 of the Exchange Act),
and the respective present and former directors, officers,
employees and agents of each of the foregoing, and shall hold
each of them harmless from and against any losses, damages,
penalties, fines, forfeitures, legal fees and expenses and
related costs, judgments, and any other costs, fees and
expenses that any of them may sustain arising out of or based
upon:
(i) any untrue statement of a material fact contained or
alleged to be contained in any IndyMac Information, or (B)
the omission or alleged omission to state in the IndyMac
Information a material fact required to be stated in the
IndyMac Information or necessary in order to make the
statements therein, in the light of the circumstances
under which they were made, not misleading; provided,
however, for the avoidance of doubt, that any such
indemnity must relate to IndyMac Information with respect
to the Transaction to which the related Derivative
Agreement relates.
(ii) any breach by IndyMac of any covenant set forth in Section
4.
Section 6. Miscellaneous.
(a) Construction. Throughout this Agreement, as the context
requires, (a) the singular tense and number includes the
plural, and the plural tense and number includes the singular;
(b) the past tense includes the present, and the present tense
includes the past; and (c) references to parties, sections,
schedules, and exhibits mean the parties, sections, schedules,
and exhibits of and to this Agreement. The
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section headings in this Agreement are inserted only as a matter
of convenience, and in no way define, limit, extend, or interpret
the scope of this Agreement or of any particular section.
(b) Assignment. None of the parties may assign their rights under
this Agreement without the prior written consent of the other
parties. Subject to the foregoing, this Agreement shall be
binding on and inure to the benefit of the parties and their
respective successors and permitted assigns.
(c) No Third-Party Benefits Except as Specified. None of the
provisions of this Agreement are intended to benefit, or to be
enforceable by, any third-party beneficiaries except the
related SPV and any trustee of an SPV or any Administrator, in
each case, not in their individual capacities, but solely in
their capacities as trustee or Administrator, as applicable, to
the extent expressly set forth herein.
(d) Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of
New York without regard to the conflict of laws principles
thereof.
(e) Amendment and Waiver. This Agreement may not be modified or
amended except by an instrument in writing signed by the
parties hereto. No waiver of any provision of this Agreement or
of any rights or obligations of any party under this Agreement
shall be effective unless in writing and signed by the party or
parties waiving compliance, and shall be effective only in the
specific instance and for the specific purpose stated in that
writing.
(f) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same
instrument.
(g) Additional Documents. Each party hereto agrees to execute any
and all further documents and writings and to perform such
other actions which may be or become necessary or expedient to
effectuate and carry out this Agreement.
(h) Severability. Any provision hereof which is prohibited or
unenforceable shall be ineffective only to the extent of such
prohibition or unenforceability without invalidating the
remaining provisions hereof.
(i) Integration. This Agreement contains the entire understanding
of the parties with respect to the subject matter hereof. There
are no restrictions, agreements, promises, representations,
warranties, covenants or undertakings with respect to the
subject matter hereof other than those expressly set forth or
referred to herein. This Agreement supersedes all prior
agreements and understandings between the parties with respect
to its subject matter.
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(j) Notices. All notices hereunder shall be in writing and shall be
deemed to have been duly given when delivered by mail or by
facsimile transmission to: (a) in the case of the Counterparty,
Xxxxxx Xxxxxxx Capital Services Inc.
00 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Chief Legal Officer
Facsimile No.: 000-000-0000
and (b) in the case of IndyMac Bank and the Depositor,
-------------------------
-------------------------
-------------------------.
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IN WITNESS WHEREOF, the parties hereto have caused their names
to be signed hereto by their respective officers thereunto duly authorized as
of the day and year first above written.
INDYMAC MBS, INC.
By:
---------------------------------
Name:
Title:
INDYMAC BANK, F.S.B.
By:
--------------------------------
Name:
Title:
XXXXXX XXXXXXX CAPITAL SERVICES INC.
By:
---------------------------------
Name:
Title:
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