Exhibit 99.3
Item 1115 Agreement dated as of August 28, 2006 (this "Agreement"),
between IndyMac Bank, F.S.B.., a federal savings bank ("IndyMac Bank"),
IndyMac MBS, Inc., a Delaware corporation ("IndyMac MBS"), IndyMac ABS, Inc.,
a Delaware corporation ("IndyMac ABS"), and Swiss Re Financial Products
Corporation, as counterparty (the "Counterparty").
RECITALS
WHEREAS, IndyMac MBS and IndyMac ABS each have filed Registration
Statements on Form S-3 (each, a "Registration Statement") with the Securities
and Exchange Commission (the "Commission") for purposes of offering mortgage
backed or asset-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 or an underwriter or dealer with
respect to the Transaction, 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 either 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 and IndyMac ABS with respect to the
related Registration Statement for which the entity is the registrant.
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.
IFRS: Has the meaning set forth in Section 3(a)(ii).
Master Agreement: The ISDA Master Agreement between the
Counterparty and SPV, or if no such Master Agreement exists, 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 related Depositor such
information regarding the Counterparty, as a derivative
instrument counterparty, as is reasonably requested by the
related Depositor for the purpose of compliance with Item
1115(a)(1) of Regulation AB. Such information shall include,
at a minimum:
(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 or relationship (as
set forth in Item 1119) between the Counterparty and
any of the following parties:
(1) IndyMac Bank (or any other sponsor identified to
the Counterparty by IndyMac Bank);
(2) the related Depositor (as identified to the
Counterparty by IndyMac Bank);
(3) the SPV;
(4) IndyMac Bank (or any other servicer or master
servicer identified to the Counterparty by
IndyMac Bank);
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(5) Deutsche Bank National Trust Company (or any
other trustee identified to the Counterparty by
IndyMac Bank);
(6) any originator identified to the Counterparty by
IndyMac Bank;
(7) any enhancement or support provider identified
to the Counterparty by IndyMac Bank; and
(8) any other material transaction party identified
to the Counterparty by IndyMac Bank.
(ii) if requested by the related Depositor for the purpose of
compliance with Item 1115(b) with respect to a Transaction
(prior to the related Depositor taking the steps necessary
to suspend its obligation to file Exchange Act Reports with
respect to the SPV under Sections 13 and 15(d) of the
Exchange Act, in accordance with the requirements of
Regulation AB) the Counterparty shall:
(A) provide the financial data required by Item 1115(b)(1)
or (b)(2) of Regulation AB (as specified by the
related Depositor to the Counterparty) with respect to
the Counterparty, any affiliated entities providing
derivative instruments to the SPV and any entities
guaranteeing the obligations of the Counterparty or
any affiliate entity providing derivative instruments
to the SPV (a "Counterparty Guarantor") (the "Company
Financial Information"), in a form appropriate for use
in the Prospectus Supplement and in an
XXXXX-compatible form; and
(B) if applicable, cause its accountants to issue their
consent to the filing of such financial statements in
the Registration Statement.
(b) Following the Closing Date with respect to a Transaction, and
until the related Depositor takes the steps necessary to suspend
its obligation to file Exchange Act Reports with respect to the
SPV under Sections 13 and 15(d) of the Exchange Act,
(i) no later than March 1 of each calendar year, the
Counterparty shall (1) notify the related Depositor in
writing of any affiliations or relationships 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 identified in writing by the related
Depositor) and (2) provide to the related Depositor a
description of such affiliations or relationships as
described in Section 2(b)(i)(1);
(ii) if the Counterparty provided Company Financial Information
to the related Depositor for the Prospectus Supplement,
within 5 Business Days of the release of any updated
financial data, the Counterparty shall (1)
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provide current Company Financial Information (including
Company Financial Information of any Counterparty Guarantor)
as required under Item 1115(b) of Regulation AB to the
related Depositor in an XXXXX-compatible form, and (2) if
applicable, cause its accountants (and, if applicable, the
accountants of any Counterparty Guarantor) to issue their
consent to filing of such financial statements in the
Exchange Act Reports of the SPV; and
(iii) if the related Depositor requests Company Financial
Information from the Counterparty, for the purpose of
compliance with Item 1115(b) of Regulation AB following the
Closing Date, the Counterparty shall upon five Business Days
written notice either (A), (1) provide current Company
Financial Information (including Company Financial
Information of any Counterparty Guarantor) as required under
Item 1115(b) of Regulation AB to the related Depositor in an
XXXXX-compatible form, (2) if applicable, cause its
accountants (and, if applicable, the accountants of any
Counterparty Guarantor) 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 (including
Company Financial Information of any Counterparty Guarantor)
as required under Item 1115(b) of Regulation AB to the
related Depositor in an XXXXX-compatible form and if
applicable, cause its accountants (and, if applicable, the
accountants of any Counterparty Guarantor) to issue their
consent to filing or incorporation by reference of such
financial statements in the Exchange Act Reports of the SPV
or (B) assign the Derivative Agreement as provided below.
(c) Prior to printing of any Prospectus Supplement, IndyMac Bank and
Depositor will inform the Counterparty of the scope and extent of
the information that they need to receive from the Counterparty
for use in the related Prospectus Supplement for the purpose of
compliance with Item 1115 of Regulation AB (the "Scope of
Information") by informing the Counterparty of `the aggregate
significance percentage' (as defined in Regulation AB) of the
related Derivative Agreement.
Section 3. Representations and Warranties and Covenants of the Counterparty.
(a) The Counterparty represents and warrants to the related Depositor,
as of the date on which information is first provided to the
related Depositor under Section 2(a)(ii), Section 2(b)(ii) or
Section 2(b)(iii)(A), that, except as disclosed in writing the
related Depositor prior to such date:
(i) The accountants who certify the financial statements and
supporting schedules included in the Company Financial
Information (including Company Financial Information of any
Counterparty Guarantor) (if
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applicable) are independent registered public accountants as
required by the Securities Act.
(ii) If applicable, with respect to the Counterparty and each
Counterparty Guarantor, either (I) the financial statements
included in the Company Financial Information present fairly
the consolidated financial position of the Counterparty or
such Counterparty Guarantor, as applicable 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 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 or (II) if the
Counterparty or Counterparty Guarantor has adopted
International Financial Reporting Standards and
International Accounting Standards (collectively "IFRS") for
the purpose of preparing its financial statements, the
Company Financial Information present fairly the
consolidated financial position of the Counterparty or such
Counterparty Guarantor, as applicable 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 statements have been
prepared in conformity with IFRS applied on a consistent
basis; and the supporting schedules included in the Company
Financial Information present fairly in accordance with IFRS
the information required to be stated therein and such
Company Financial Information has been reconciled with GAAP.
(iii) 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.
(iv) 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 respects with the
requirements of Item 1115(b) 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) The Counterparty agrees that the terms of this Agreement shall be
incorporated by reference into any Derivative Agreement so that
each SPV who is a beneficiary of
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a Derivative Agreement shall be an express third party beneficiary
of this Agreement.
Section 4. Indemnification; Remedies
(a) The Counterparty shall indemnify IndyMac Bank and the related
Depositor, each person responsible for the preparation, execution
or filing of any report required to be filed with the Commission
with respect to such SPV, or for execution of a certification
pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange
Act; 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 or any Counterparty Guarantor (collectively,
the "Company Information"), or (B) the 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;
(ii) any failure by the Counterparty or any Counterparty
Guarantor to deliver any information, report, certification,
accountants' consent or other material required to be
delivered by it under Section 2, but only to the extent
described in the last paragraph of this Section 4(a); or
(iii) any breach by the Counterparty or any Counterparty Guarantor
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 or any Counterparty Guarantor
of a representation or warranty pursuant to Section 3 to the
extent made as of a date subsequent to the Closing Date.
In the case of any failure or such Counterparty Guarantor of
performance described in clause (a)(ii) of this Section, the
Counterparty shall promptly reimburse the related Depositor and
each Person responsible for the preparation, execution or filing
of any report required to be filed with the Commission with
respect to such 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,
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certification, accountants' consent or other material not
delivered as required by the Counterparty.
(b) (i) Any failure by the Counterparty or any Counterparty
Guarantor to deliver any information, report, accountants'
consent or other material when and in any case only as
required under Section 2 or any breach by the Counterparty
or any Counterparty Guarantor of a representation or
warranty set forth in Section 3 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 in the case of information
needed for purposes of printing the Prospectus Supplement,
the date of printing of the Prospectus Supplement), shall,
except as provided in clause (ii) of this paragraph,
immediately and automatically, without notice or grace
period, constitute an Additional Termination Event (as
defined in the Master Agreement) with the Counterparty as
the sole Affected Party (as defined in the Master Agreement)
under the Derivative Agreement. Following such termination,
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, with Market Quotation and
Second Method being the applicable method for determining
the termination payment (notwithstanding anything in the
Derivative Agreement to the contrary).
(ii) If the Counterparty or any Counterparty Guarantor has failed
to deliver any information, report, or accountants' consent
when and as required under Section 2, which continues
unremedied 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 if
the Counterparty has provided Company Information any breach
by the Counterparty or any Counterparty Guarantor of a
representation or warranty pursuant to Section 3 to the
extent made as of a date subsequent to such closing date,
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 Depositors
substantially in the form of this Agreement, (ii) has agreed
to deliver any information, report, certification or
accountants' consent when and as required under Section 2
hereof and (iii) is approved by the Depositor (which
approval shall not be unreasonably withheld) and any rating
agency, if applicable, on terms substantially similar to the
Derivative Agreement or (B) only if permissable under
Regulation AB, post collateral satisfactory to IndyMac Bank
and the Depositor in an amount sufficient to reduce the
aggregate significance percentage to 5% in the case that
financials have been requested for the purpose of compliance
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with Item 1115(b)(1) and to 15% in the case that financials
have been requested for the purpose of compliance with Item
1115(b)(2), then an Additional Termination Event (as defined
in the Master Agreement) shall have occurred with the
Counterparty as the sole Affected Party. In the event that
an Early Termination Date is designated in connection with
such Additional Termination Event, a termination payment (if
any) shall be payable by the applicable party as of the
Early Termination Date as determined by the application of
Section 6(e)(ii) of the Master Agreement, with Market
Quotation and Second Method being the applicable method for
determining the termination payment (notwithstanding
anything in the Derivative Agreement to the contrary).
(iii) In the event that the Counterparty or the SPV has found a
replacement entity in accordance with Section 4(b)(ii), 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 and the related Depositor shall indemnify the
Counterparty, each person who controls 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 (A) any untrue statement of a material fact contained or
alleged to be contained in the related Prospectus Supplement
(other than the Company Information), or (B) the omission or
alleged omission to state in related Prospectus Supplement (other
than the Company Information) a material fact required to be
stated in the Prospectus Supplement or necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading.
Section 5. Miscellaneous.
(a) Company Financial Information. Notwithstanding anything to the
contrary contained herein, if Regulation AB is amended, or the
Commission has issued interpretive guidance uniformly applicable
to registrants of Asset-Backed Securities allowing the
presentation of the financial information required by Item 1115 of
Regulation AB with respect to an affiliate of the Counterparty
rather than the Counterparty and any affiliated entities providing
derivatives to the SPV,
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"Company Financial Information" shall be deemed to refer to the
financial information of such permitted entity provided the
Counterparty has received written confirmation from IndyMac Bank
that no amendment to this Agreement is necessary. The parties
shall reasonably cooperate with respect to any amendments to this
Agreement to reflect such amendment or interpretation.
(b) 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 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.
(c) 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.
(d) 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.
(e) 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.
(f) 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.
(g) 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.
(h) 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 reasonably necessary or expedient
to effectuate and carry out this Agreement.
(i) 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.
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(j) 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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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: /s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
Title: Vice President
INDYMAC ABS, INC.
By: /s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
Title: Vice President
INDYMAC BANK, F.S.B.
By: /s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
Title: Vice President
SWISS RE FINANCIAL PRODUCTS
CORPORATION
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Managing Director
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