EXHIBIT 99.3
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The Schedule to the ISDA Master Agreement
SCHEDULE
to the
Master Agreement
dated as of April 27, 2007
between
Deutsche Bank National Trust Company, not individually, but
solely as supplemental interest trustee (the "Supplemental
and Interest Trustee") of the Supplemental Interest Trust (the
Credit Suisse International "Supplemental Interest Trust") created under the Pooling and
Servicing Agreement for IndyMac INDX Mortgage Loan Trust
2007-FLX3, Mortgage Pass-Through Certificates, Series 2007-FLX3
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("Party A") ("Party B")
Part 1. Termination Provisions.
For the purposes of this Agreement:-
(a) "Specified Entity" will not apply to Party A or Party B for any
purpose.
(b) "Specified Transaction" will have the meaning specified in Section 14.
(c) Events of Default.
The statement below that an Event of Default will apply to a specific
party means that upon the occurrence of such an Event of Default with
respect to such party, the other party shall have the rights of a
Non-defaulting Party under Section 6 of this Agreement; conversely, the
statement below that such event will not apply to a specific party
means that the other party shall not have such rights.
(i) The "Failure to Pay or Deliver" provisions of Section 5(a)(i)
will apply to Party A and will apply to Party B; provided,
however, that notwithstanding anything to the contrary in
Section 5(a)(i), any failure by Party A to comply with or
perform any obligation to be complied with or performed by
Party A under the Credit Support Annex shall not constitute an
Event of Default under Section 5(a)(i) unless (A) a Required
Ratings Downgrade Event has occurred and been continuing for
30 or more Local Business Days and (B) such failure is not
remedied on or before the third Local Business Day after
notice of such failure is given to Party A.
(ii) The "Breach of Agreement" provisions of Section 5(a)(ii) will
apply to Party A and will not apply to Party B.
(iii) The "Credit Support Default" provisions of Section 5(a)(iii)
will apply to Party A and will not apply to Party B except
that Section 5(a)(iii)(1) will apply to Party B solely in
respect of Party B's obligations under Paragraph 3(b) of the
Credit Support Annex; provided, however, that notwithstanding
anything to the contrary in Section 5(a)(iii)(1), any failure
by Party A to comply with or perform any obligation to be
complied with or performed by Party A under the Credit Support
Annex shall not constitute an Event of Default under Section
5(a)(iii) unless (A) a Required Ratings
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Downgrade Event has occurred and been continuing for 30 or
more Local Business Days and (B) such failure is not remedied
on or before the third Local Business Day after notice of such
failure is given to Party A.
(iv) The "Misrepresentation" provisions of Section 5(a)(iv) will
apply to Party A and will not apply to Party B.
(v) The "Default under Specified Transaction" provisions of
Section 5(a)(v) will not apply to Party A and will not apply
to Party B.
(vi) The "Cross Default" provisions of Section 5(a)(vi) will apply
to Party A and will not apply to Party B. For purposes of
Section 5(a)(vi), solely with respect to Party A:
"Specified Indebtedness" will have the meaning specified in
Section 14.
"Threshold Amount" means with respect to Party A an amount
equal to three percent (3%) of the Shareholders' Equity of
Party A or, if applicable, the Eligible Guarantor.
"Shareholders' Equity" means with respect to an entity, at any
time, the sum (as shown in the most recent annual audited
financial statements of such entity) of (i) its capital stock
(including preferred stock) outstanding, taken at par value,
(ii) its capital surplus and (iii) its retained earnings,
minus (iv) treasury stock, each to be determined in accordance
with generally accepted accounting principles.
(vii) The "Bankruptcy" provisions of Section 5(a)(vii) will apply to
Party A and will apply to Party B except that the provisions
of Section 5(a)(vii)(2), (6) (to the extent that such
provisions refer to any appointment contemplated or effected
by the Pooling and Servicing Agreement or any appointment to
which Party B has not become subject), (7) and (9) will not
apply to Party B; provided that, with respect to Party B only,
Section 5(a)(vii)(4) is hereby amended by adding after the
words "against it" the words "(excluding any proceeding or
petition instituted or presented by Party A or its
Affiliates)", and Section 5(a)(vii)(8) is hereby amended by
deleting the words "to (7) inclusive" and inserting lieu
thereof ", (3), (4) as amended, (5), (6) as amended, or (7)".
(viii) The "Merger Without Assumption" provisions of Section
5(a)(viii) will apply to Party A and will apply to Party B.
(d) Termination Events.
The statement below that a Termination Event will apply to a specific
party means that upon the occurrence of such a Termination Event, if
such specific party is the Affected Party with respect to a Tax Event,
the Burdened Party with respect to a Tax Event Upon Merger (except as
noted below) or the non-Affected Party with respect to a Credit Event
Upon Merger, as the case may be, such specific party shall have the
right to designate an Early Termination Date in accordance with Section
6 of this Agreement; conversely, the statement below that such an event
will not apply to a specific party means that such party shall not have
such right; provided, however, with respect to "Illegality" the
statement that such event will apply to a specific party means that
upon the occurrence of such a Termination Event with respect to such
party, either party shall have the right to designate an Early
Termination Date in accordance with Section 6 of this Agreement.
(i) The "Illegality" provisions of Section 5(b)(i) will apply to
Party A and will apply to Party B.
(ii) The "Tax Event" provisions of Section 5(b)(ii) will apply to
Party A except that, for purposes of the application of
Section 5(b)(ii) to Party A, Section 5(b)(ii) is hereby
amended by deleting the words "(x) any action taken by a
taxing authority, or brought in a court of competent
jurisdiction, on or after the date on which a Transaction is
entered into (regardless of whether such action is taken or
brought with respect to a party to this Agreement) or (y)",
and the "Tax Event" provisions of Section 5(b)(ii) will apply
to Party B.
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(iii) The "Tax Event Upon Merger" provisions of Section 5(b)(iii)
will apply to Party A and will apply to Party B, provided that
Party A shall not be entitled to designate an Early
Termination Date by reason of a Tax Event upon Merger in
respect of which it is the Affected Party.
(iv) The "Credit Event Upon Merger" provisions of Section 5(b)(iv)
will not apply to Party A and will not apply to Party B.
(e) The "Automatic Early Termination" provision of Section 6(a) will not
apply to Party A and will not apply to Party B.
(f) Payments on Early Termination. For the purpose of Section 6(e) of this
Agreement:
(i) Market Quotation will apply, provided, however, that, in the
event of a Derivative Provider Trigger Event, the following
provisions will apply:
(A) The definition of Market Quotation in Section 14
shall be deleted in its entirety and replaced with
the following:
"Market Quotation" means, with respect to one or more
Terminated Transactions, a Firm Offer which is (1)
made by a Reference Market-maker that is an Eligible
Replacement, (2) for an amount that would be paid to
Party B (expressed as a negative number) or by Party
B (expressed as a positive number) in consideration
of an agreement between Party B and such Reference
Market-maker to enter into a Replacement Transaction,
and (3) made on the basis that Unpaid Amounts in
respect of the Terminated Transaction or group of
Transactions are to be excluded but, without
limitation, any payment or delivery that would, but
for the relevant Early Termination Date, have been
required (assuming satisfaction of each applicable
condition precedent) after that Early Termination
Date is to be included.
(B) The definition of Settlement Amount shall be deleted
in its entirety and replaced with the following:
"Settlement Amount" means, with respect to any Early
Termination Date, an amount (as determined by Party
B) equal to:
(a) If a Market Quotation for the relevant
Terminated Transaction or group of
Terminated Transactions is accepted by Party
B so as to become legally binding on or
before the day falling ten Local Business
Days after the day on which the Early
Termination Date is designated, or such
later day as Party B may specify in writing
to Party A, but in either case no later than
one Local Business Day prior to the Early
Termination Date (such day, the "Latest
Settlement Amount Determination Day"), the
Termination Currency Equivalent of the
amount (whether positive or negative) of
such Market Quotation;
(b) If, on the Latest Settlement Amount
Determination Day, no Market Quotation for
the relevant Terminated Transaction or group
of Terminated Transactions has been accepted
by Party B so as to become legally binding
and one or more Market Quotations from
Approved Replacements have been made and
remain capable of becoming legally binding
upon acceptance, the Settlement Amount shall
equal the Termination Currency Equivalent of
the amount (whether positive or negative) of
the lowest of such Market Quotations (for
the avoidance of doubt, the lowest of such
Market Quotations shall be the lowest Market
Quotation of such Market Quotations
expressed as a positive number or, if any of
such Market Quotations is expressed as a
negative number, the Market Quotation
expressed as a negative number with the
largest absolute value); or
(c) If, on the Latest Settlement Amount
Determination Day, no Market Quotation for
the relevant Terminated Transaction or group
of Terminated Transactions is accepted by
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Party B so as to become legally binding and
no Market Quotation from an Approved
Replacement remains capable of becoming
legally binding upon acceptance, the
Settlement Amount shall equal Party B's Loss
(whether positive or negative and without
reference to any Unpaid Amounts) for the
relevant Terminated Transaction or group of
Terminated Transactions.
(C) If Party B requests Party A in writing to obtain
Market Quotations, Party A shall use its reasonable
efforts to do so before the Latest Settlement Amount
Determination Day.
(D) If the Settlement Amount is a negative number,
Section 6(e)(i)(3) shall be deleted in its entirety
and replaced with the following:
"(3) Second Method and Market Quotation. If the
Second Method and Market Quotation apply, (I) Party B
shall pay to Party A an amount equal to the absolute
value of the Settlement Amount in respect of the
Terminated Transactions, (II) Party B shall pay to
Party A the Termination Currency Equivalent of the
Unpaid Amounts owing to Party A and (III) Party A
shall pay to Party B the Termination Currency
Equivalent of the Unpaid Amounts owing to Party B;
provided, however, that (x) the amounts payable under
the immediately preceding clauses (II) and (III)
shall be subject to netting in accordance with
Section 2(c) of this Agreement and (y)
notwithstanding any other provision of this
Agreement, any amount payable by Party A under the
immediately preceding clause (III) shall not be
netted-off against any amount payable by Party B
under the immediately preceding clause (I)."
(E) At any time on or before the Latest Settlement Amount
Determination Day at which two or more Market
Quotations from Approved Replacements remain capable
of becoming legally binding upon acceptance, Party B
shall be entitled to accept only the lowest of such
Market Quotations (for the avoidance of doubt, the
lowest of such Market Quotations shall be the lowest
Market Quotation of such Market Quotations expressed
as a positive number or, if any of such Market
Quotations is expressed as a negative number, the
Market Quotation expressed as a negative number with
the largest absolute value).
(ii) The Second Method will apply.
(g) "Termination Currency" means USD.
(h) Additional Termination Events. Additional Termination Events will apply
as provided in Part 5(c).
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Part 2. Tax Matters.
(a) Tax Representations.
(i) Payer Representations. For the purpose of Section 3(e) of this
Agreement:
(A) Party A makes the following representation(s):
None.
(B) Party B makes the following representation(s):
None.
(ii) Payee Representations. For the purpose of Section 3(f) of this
Agreement:
(A) Party A makes the following representation(s):
None.
(B) Party B makes the following representation(s):
None.
(b) Tax Provisions.
(i) Gross Up. Section 2(d)(i)(4) shall not apply to Party B as X,
and Section 2(d)(ii) shall not apply to Party B as Y, in each
case such that Party B shall not be required to pay any
additional amounts referred to therein.
(ii) Indemnifiable Tax. The definition of "Indemnifiable Tax" in
Section 14 is deleted in its entirety and replaced with the
following:
"Indemnifiable Tax" means, in relation to payments by Party A,
any Tax and, in relation to payments by Party B, no Tax.
INDX 2007-FLX3 Schedule 5
Part 3. Agreement to Deliver Documents.
(a) For the purpose of Section 4(a)(i), tax forms, documents, or certificates
to be delivered are:
Party required to Form/Document/ Date by which to
deliver document Certificate be delivered
Party A An original properly completed and executed (i) upon execution of this Agreement, (ii) on
United States Internal Revenue Service Form or before the first payment date under this
W-8IMY including applicable attachments (or any Agreement, including any Credit Support
successor thereto) with respect to any payments Document, (iii) promptly upon the reasonable
received or to be received by Party A that demand by Party B, (iv) prior to the
eliminates U.S. federal withholding and backup expiration or obsolescence of any previously
withholding Tax on payments to Party A under this delivered form, and (v) promptly upon the
Agreement. information on any such previously delivered
form becoming inaccurate or incorrect.
Party B (i) Upon execution of this Agreement, a United (i) upon execution of this Agreement, (ii) on
States Internal Revenue Service Form W-9 (or any or before the first payment date under this
successor thereto) with respect to any payments Agreement, including any Credit Support
received or to be received by the initial Document, (iii) in the case of a tax
beneficial owner of payments to Party B under certification form other than a Form W-9,
this Agreement, and (ii) thereafter, the before December 31 of each third succeeding
appropriate tax certification form (i.e., IRS calendar year, (iv) promptly upon the
Form W-9 or IRS Form X-0XXX, X-0XXX, X-0XXX or reasonable demand by Party B, (v) prior to the
W-8ECI, as applicable (or any successor form expiration or obsolescence of any previously
thereto)) with respect to any payments received delivered form, and (vi) promptly upon the
or to be received by the beneficial owner of knowledge that information on any such
payments to Party B under this Agreement from previously delivered form becoming inaccurate
time to time. or incorrect.
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(b) For the purpose of Section 4(a)(ii), other documents to be delivered are:
Party required to Form/Document/ Date by which to Covered by
deliver document Certificate be delivered Section 3(d)
Representation
Party A and Any documents required by the Upon the execution and delivery of Yes
Party B receiving party to evidence the this Agreement
authority of the delivering party or
its Credit Support Provider, if any,
for it to execute and deliver the
Agreement, this Confirmation, and any
Credit Support Documents to which it
is a party, and to evidence the
authority of the delivering party or
its Credit Support Provider to perform
its obligations under the Agreement,
this Confirmation and any Credit
Support Document, as the case may be
Party A and A certificate of an authorized officer Upon the execution and delivery of Yes
Party B of the party, as to the incumbency and this Agreement
authority of the respective officers
of the party signing the Agreement,
this Confirmation, and any relevant
Credit Support Document, as the case
may be
Party A A copy of the annual report for Party Promptly upon becoming publicly Yes
A containing audited or certified available
financial statements for the most
recently ended financial year
Party A An opinion of counsel to Party A as Upon the execution and delivery of No
to the enforceability of this this Agreement
Agreement in a form that is reasonably
satisfactory to Party B.
Party B An opinion of counsel to Party B as to Upon the execution and delivery of No
the enforceability of this Agreement this Agreement
in a form that is reasonably
satisfactory to Party A.
Party B An executed copy of the PSA . Promptly upon execution in final form No
Part 4. Miscellaneous.
(a) Address for Notices: For the purposes of Section 12(a) of this
Agreement:
Address for notices or communications to Party A:
Address: One Cabot Square Attention: (1) Head of Credit Risk
Management;
Xxxxxx X00 0XX (2) Managing Director -
England Operations Department;
(3) Managing Director - Legal
Department
Telex No.: 264521 Answerback: CSI G
(For all purposes)
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Address for notices or communications to Party B:
Address: IndyMac Mortgage Loan Trust 2007-FLX3
c/o Deutsche Bank National Trust Company
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, XX 00000
Attention: Trust Administration IN07-F3
Facsimile: (000) 000-0000
Phone: (000) 000-0000
(For all purposes)
(b) Process Agent. For the purpose of Section 13(c):
Party A appoints as its Process Agent:
Credit Suisse Securities (USA) LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
Legal and Compliance Department
Party B appoints as its Process Agent: Not applicable.
(c) Offices. The provisions of Section 10(a) will apply to this Agreement;
neither Party A nor Party B has any Offices other than as set forth in
the Notices Section and Party A agrees that, for purposes of Section
6(b) of this Agreement, it shall not in the future have any Office
other than one in the United States.
(d) Multibranch Party. For the purpose of Section 10(c) of this Agreement:
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
(e) Calculation Agent. The Calculation Agent is Party A.
(f) Credit Support Document.
Party A: The Credit Support Annex, and any guarantee in support of
Party A's obligations under this Agreement.
Party B: The Credit Support Annex, solely in respect of Party B's
obligations under Paragraph 3(b) of the Credit Support
Annex.
(g) Credit Support Provider.
Party A: The guarantor under any guarantee in support of Party A's
obligations under this Agreement.
Party B: None.
(h) Governing Law. The parties to this Agreement hereby agree that the law
of the State of New York shall govern their rights and duties in whole,
without regard to the conflict of law provisions thereof other than New
York General Obligations Law Sections 5-1401 and 5-1402.
(i) Netting of Payments. The parties agree that subparagraph (ii) of
Section 2(c) will apply to each Transaction hereunder.
INDX 2007-FLX3 Schedule 8
(j) Affiliate. "Affiliate" shall have the meaning assigned thereto in
Section 14; provided, however, that Party B shall be deemed to have no
Affiliates for purposes of this Agreement, including for purposes of
Section 6(b)(ii) and Party A shall be deemed to have no Affiliates for
purposes of Section 3(c) of this Agreement.
INDX 2007-FLX3 Schedule 9
Part 5. Other Provisions.
(a) Definitions. Unless otherwise specified in a Confirmation, this
Agreement and each Transaction under this Agreement are subject to the
2000 ISDA Definitions as published and copyrighted in 2000 by the
International Swaps and Derivatives Association, Inc. (the
"Definitions"), and will be governed in all relevant respects by the
provisions set forth in the Definitions, without regard to any
amendment to the Definitions subsequent to the date hereof. The
provisions of the Definitions are hereby incorporated by reference in
and shall be deemed a part of this Agreement, except that (i)
references in the Definitions to a "Swap Transaction" shall be deemed
references to a "Transaction" for purposes of this Agreement, and (ii)
references to a "Transaction" in this Agreement shall be deemed
references to a "Swap Transaction" for purposes of the Definitions.
Each term capitalized but not defined in this Agreement shall have the
meaning assigned thereto in the Pooling and Servicing Agreement
In the event of any inconsistency among any of the following documents,
the relevant document first listed shall govern: (i) the Confirmation
entered into between Party A and Party B on April 27, 2007; (ii) the
Credit Support Annex; (iii) the provisions set forth in this Schedule;
(iv) the Definitions; and (v) the ISDA Master Agreement.
Each reference herein to a "Section" (unless specifically referencing
the Pooling and Servicing Agreement) or to a "Section" "of this
Agreement" will be construed as a reference to a Section of the ISDA
Master Agreement; each herein reference to a "Part" will be construed
as a reference to the provisions herein deemed incorporated in a
Schedule to the ISDA Master Agreement; each reference herein to a
"Paragraph" will be construed as a reference to a Paragraph of the
Credit Support Annex..
(b) Amendments to ISDA Master Agreement.
(i) Single Agreement. Section 1(c) is hereby amended by the adding
the words "including, for the avoidance of doubt, the Credit
Support Annex" after the words "Master Agreement".
(ii) Conditions Precedent. Section 2(a)(iii) is hereby amended by
adding the following at the end thereof:
Notwithstanding anything to the contrary in Section
2(a)(iii)(1), if an Event of Default with respect to Party B
or Potential Event of Default with respect to Party B has
occurred and been continuing for more than 30 Local Business
Days and no Early Termination Date in respect of the Affected
Transactions has occurred or been effectively designated by
Party A, the obligations of Party A under Section 2(a)(i)
shall cease to be subject to the condition precedent set forth
in Section 2(a)(iii)(1) with respect to such specific
occurrence of such Event of Default or such Potential Event of
Default (the "Specific Event"); provided, however, for the
avoidance of doubt, the obligations of Party A under Section
2(a)(i) shall be subject to the condition precedent set forth
in Section 2(a)(iii)(1) (subject to the foregoing) with
respect to any subsequent occurrence of the same Event of
Default with respect to Party B or Potential Event of Default
with respect to Party B after the Specific Event has ceased to
be continuing and with respect to any occurrence of any other
Event of Default with respect to Party B or Potential Event of
Default with respect to Party B that occurs subsequent to the
Specific Event.
(iii) Change of Account. Section 2(b) is hereby amended by the
addition of the following after the word "delivery" in the
first line thereof:
"to another account in the same legal and tax jurisdiction as
the original account".
(iv) Representations. Section 3 is hereby amended by adding at the
end thereof the following subsection (g):
"(g) Relationship Between Parties.
(1) Nonreliance. (i) It is not relying on any
statement or representation of the other
party regarding the Transaction (whether
written or oral), other than the
representations expressly made in this
Agreement or the Confirmation in respect of
that Transaction
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and (ii) it has consulted with its own
legal, regulatory, tax, business,
investment, financial and accounting
advisors to the extent it has deemed
necessary, and it has made its own
investment, hedging and trading decisions
based upon its own judgment and upon any
advice from such advisors as it has deemed
necessary and not upon any view expressed by
the other party.
(2) Evaluation and Understanding. (i) It has the
capacity to evaluate (internally or through
independent professional advice) the
Transaction and has made its own decision to
enter into the Transaction and (ii) It
understands the terms, conditions and risks
of the Transaction and is willing and able
to accept those terms and conditions and to
assume those risks, financially and
otherwise.
(3) Purpose. It is entering into the Transaction
for the purposes of managing its borrowings
or investments, hedging its underlying
assets or liabilities or in connection with
a line of business.
(4) Status of Parties. The other party is not
acting as an agent, fiduciary or advisor for
it in respect of the Transaction.
(5) Eligible Contract Participant. It is an
"eligible swap participant" as such term is
defined in, Section 35.1(b)(2) of the
regulations (17 C.F.R. 35) promulgated
under, and an "eligible contract
participant" as defined in Section 1(a)(12)
of the Commodity Exchange Act, as amended."
(v) Transfer to Avoid Termination Event. Section 6(b)(ii) is
hereby amended by (i) deleting the words "or if a Tax Event
Upon Merger occurs and the Burdened Party is the Affected
Party," and (ii) by deleting the words "to transfer" and
inserting the words "to effect a Permitted Transfer" in lieu
thereof.
(vi) Jurisdiction. Section 13(b) is hereby amended by: (i) deleting
in the second line of subparagraph (i) thereof the word
"non-", (ii) deleting "; and" from the end of subparagraph (i)
and inserting "." in lieu thereof, and (iii) deleting the
final paragraph thereof.
(vii) Local Business Day. The definition of Local Business Day in
Section 14 is hereby amended by the addition of the words "or
any Credit Support Document" after "Section 2(a)(i)" and the
addition of the words "or Credit Support Document" after
"Confirmation".
(c) Additional Termination Events.
(i) Each of the following shall constitute an Additional
Termination Event with Party A as Affected Party:
(A) First Rating Trigger Collateral. If (A) it is not the
case that a Xxxxx'x Second Trigger Ratings Event has
occurred and been continuing for 30 or more Local
Business Days and (B) Party A fails to comply with or
perform any obligation to be complied with or
performed by Party A under the Credit Support Annex.
(B) Second Rating Trigger Replacement. If (A) a Required
Ratings Downgrade Event has occurred and been
continuing for 30 or more Local Business Days and (B)
(i) at least one Eligible Replacement has made a Firm
Offer to be the transferee of all of Party A's rights
and obligations under this Agreement (and such Firm
Offer remains an offer that will become legally
binding upon such Eligible Replacement upon
acceptance by the offeree) and/or (ii) an Eligible
Guarantor has made a Firm Offer to provide an
Eligible Guarantee (and such Firm Offer remains an
offer that will become legally binding upon such
Eligible Guarantor immediately upon acceptance by the
offeree).
(C) Failure to Comply with Item 1115 Agreement. Any
failure by Party A to comply with the Item 1115
Agreement (as defined below, and for the avoidance of
doubt, in addition to any indemnity that may arise
thereunder as a result of any such failure).
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(ii) Each of the following shall constitute an Additional
Termination Event with Party B as Affected Party:
(A) Amendment of Pooling and Servicing Agreement. If,
without the prior written consent of Party A where
such consent is required under the Pooling and
Servicing Agreement (such consent not to be
unreasonably withheld), an amendment is made to the
Pooling and Servicing Agreement.
(B) Optional Termination of Securitization. An Additional
Termination Event shall occur upon the notice to
Certificateholders of an optional termination
becoming unrescindable in accordance with Article 9
of the Pooling and Servicing Agreement (such notice,
the "Optional Termination Notice"). With respect to
such Additional Termination Event: (A)
Notwithstanding anything to the contrary in Section
6(b)(iv) or Section 6(c)(i), the final Distribution
Date specified in the Optional Termination Notice is
hereby designated as the Early Termination Date for
this Additional Termination Event in respect of all
Affected Transactions; (B) Section 2(a)(iii)(2) shall
not be applicable to any Affected Transaction in
connection with the Early Termination Date resulting
from this Additional Termination Event;
notwithstanding anything to the contrary in Section
6(c)(ii), payments and deliveries under Section
2(a)(i) or Section 2(e) in respect of the Terminated
Transactions resulting from this Additional
Termination Event will be required to be made through
and including the Early Termination Date designated
as a result of this Additional Termination Event;
provided, for the avoidance of doubt, that any such
payments or deliveries that are made on or prior to
such Early Termination Date will not be treated as
Unpaid Amounts in determining the amount payable in
respect of such Early Termination Date; (C)
notwithstanding anything to the contrary in Section
6(d)(i), (I) if, no later than 4:00 pm New York City
time on the day that is four Business Days prior to
the final Distribution Date specified in the Optional
Termination Notice, the Trustee requests the amount
of the Estimated Swap Termination Payment, Party A
shall provide to the Trustee in writing (which may be
done in electronic format) the amount of the
Estimated Swap Termination Payment no later than 2:00
pm New York City time on the following Business Day
and (II) if the Trustee provides written notice
(which may be done in electronic format) to Party A
no later than two Business Days prior to the final
Distribution Date specified in the Optional
Termination Notice that all requirements of the
Optional Termination have been met, then Party A
shall, no later than one Business Day prior to the
final Distribution Date specified in the Optional
Termination Notice, make the calculations
contemplated by Section 6(e) of the ISDA Master
Agreement (as amended herein) and provide to the
Trustee in writing (which may be done in electronic
format) the amount payable by either Party B or Party
A in respect of the related Early Termination Date in
connection with this Additional Termination Event;
provided, however, that the amount payable by Party
B, if any, in respect of the related Early
Termination Date shall be the lesser of (x) the
amount calculated to be due from Party B pursuant to
Section 6(e) and (y) the Estimated Swap Termination
Payment; and (D) notwithstanding anything to the
contrary in this Agreement, any amount due from Party
B to Party A in respect of this Additional
Termination Event will be payable on the final
Distribution Date specified in the Optional
Termination Notice and any amount due from Party A to
Party B in respect of this Additional Termination
Event will be payable one Business Day prior to the
final Distribution Date specified in the Optional
Termination Notice.
The Trustee shall be an express third party
beneficiary of this Agreement as if a party hereto to
the extent of the Trustee's rights specified herein.
(d) Required Ratings Downgrade Event. In the event that no Relevant Entity
has credit ratings at least equal to the Required Ratings Threshold,
Party A shall, as soon as reasonably practicable and so long as a
Required Ratings Downgrade Event is in effect, at its own expense,
using commercially reasonable efforts, procure either (A) a Permitted
Transfer or (B) an Eligible Guarantee.
(e) Item 1115 Agreement. Party A and Party B hereby agree that the terms of
the Item 1115 Agreement, dated as of April 27, 2007 (the "Item 1115
Agreement"), among Party A, IndyMac Bank, F.S.B. and IndyMac MBS, Inc,
shall be incorporated by reference into this Agreement and Party B
shall be an express third party beneficiary of the Item 1115 Agreement.
A copy of the Item 1115 Agreement is annexed hereto at Annex B.
INDX 2007-FLX3 Schedule 12
(f) Transfers.
(i) Section 7 is hereby amended to read in its entirety as
follows:
"Except with respect to any Permitted Transfer pursuant to
Section 6(b)(ii), Part 5(d), Part 5(e), or the following
paragraph, neither Party A nor Party B is permitted to assign,
novate or transfer (whether by way of security or otherwise)
as a whole or in part any of its rights, obligations or
interests under the Agreement or any Transaction unless (a)
the prior written consent of the other party is obtained, and
(b) the Rating Agency Condition has been satisfied with
respect to S&P; provided, however, that nothing herein shall
prohibit Party B from assigning its rights, obligations, or
interest hereunder to another person in connection with a
transfer pursuant to Section 8.09 of the Pooling and Servicing
Agreement; provided, further, that Party A may transfer this
Agreement to any Person that is an office or branch of Party A
(any such Person, office or branch, a Transferee) on at least
five Business Days' prior written notice to Party B, provided
that (A) as of the date of such transfer the Transferee will
not be required to withhold or deduct on account of a Tax from
any payments under this Agreement unless the Transferee will
be required to make payments of additional amounts pursuant to
Section 2(d)(i)(4) of this Agreement in respect of such Tax;
(B) a Termination Event or Event of Default does not occur
under this Agreement as a result of such transfer; (C) such
notice is accompanied by a written instrument pursuant to
which the Transferee acquires and assumes the rights and
obligations of Party A so transferred; (D) either (I) Xxxxx'x
has been given prior written notice of such transfer and the
Rating Agency Condition is satisfied with respect to S&P or
(II) each Swap Rating Agency has been given prior written
notice of such transfer and such transfer is without
modification of the terms of this Agreement, other than party
names, dates relevant to the effective date of such transfer,
tax representations (provided that the representations in Part
2(a)(i) are not modified) and any other representations
regarding the status of the substitute counterparty of the
type included in Part 5(b)(iv), Part 5(v)(i)(2) or Part
5(v)(ii), notice information and account details; and (E)
Party A will be responsible for any costs or expenses incurred
in connection with any transfer described in this paragraph;
Party B will execute such documentation as is reasonably
deemed necessary by Party A for the effectuation of any such
transfer.
At any time at which no Relevant Entity has credit ratings at
least equal to the Approved Ratings Threshold, Party A may
make a Permitted Transfer In addition, in the event that Party
A is required to provide any disclosure pursuant to the Item
1115 Agreement, Party A may transfer this Agreement to an
Affiliate that is able to provide the relevant disclosures
without obtaining the written consent of the Trustee on behalf
of Party B pursuant to a Permitted Transfer. Party A, having
given prior written notice to S&P, may make a Permitted
Transfer of this Agreement pursuant to a consolidation or
amalgamation with, or merger with or into, or transfer of
substantially all of its assets to, another entity. Party A
will be responsible for any costs or expenses incurred in
connection with any transfer described in this paragraph;
Party B will execute such documentation as is reasonably
deemed necessary by Party A for the effectuation of any such
transfer."
(ii) If an Eligible Replacement has made a Firm Offer (which
remains an offer that will become legally binding upon
acceptance by Party B) to be the transferee pursuant to a
Permitted Transfer, Party B shall, at Party A's written
request and at Party A's expense, take any reasonable steps
required to be taken by Party B to effect such transfer.
(g) Non-Recourse. Party A acknowledges and agrees that, notwithstanding any
provision in this Agreement to the contrary, the obligations of Party B
hereunder are limited recourse obligations of Party B, payable solely
from the Supplemental Interest Trust and the proceeds thereof, in
accordance with the priority of payments and other terms of the Pooling
and Servicing Agreement and that Party A will not have any recourse to
any of the directors, officers, agents, employees, shareholders or
affiliates of the Party B with respect to any claims, losses, damages,
liabilities, indemnities or other obligations in connection with any
transactions contemplated hereby. In the event that the Supplemental
Interest Trust and the proceeds thereof, should be insufficient to
satisfy all claims outstanding and following the realization of the
account held by the Supplemental Interest Trust and the proceeds
thereof, any claims against or obligations of Party B under the ISDA
Master Agreement or any other confirmation thereunder still outstanding
shall be extinguished and thereafter not revive. The Supplemental
INDX 2007-FLX3 Schedule 13
Interest Trustee shall not have liability for any failure or delay in
making a payment hereunder to Party A due to any failure or delay in
receiving amounts in the account held by the Supplemental Interest
Trust from the Trust created pursuant to the Pooling and Servicing
Agreement. This provision will survive the termination of this
Agreement.
(h) Timing of Payments by Party B upon Early Termination. Notwithstanding
anything to the contrary in Section 6(d)(ii), to the extent that all or
a portion (in either case, the "Unfunded Amount") of any amount that is
calculated as being due in respect of any Early Termination Date under
Section 6(e) from Party B to Party A will be paid by Party B from
amounts other than any upfront payment paid to Party B by an Eligible
Replacement that has entered a Replacement Transaction with Party B,
then such Unfunded Amount shall be due on the next subsequent
Distribution Date following the date on which the payment would have
been payable as determined in accordance with Section 6(d)(ii), and on
any subsequent Distribution Dates until paid in full (or if such Early
Termination Date is the final Distribution Date, on such final
Distribution Date); provided, however, that if the date on which the
payment would have been payable as determined in accordance with
Section 6(d)(ii) is a Distribution Date, such payment will be payable
on such Distribution Date.
(i) Rating Agency Notifications. Notwithstanding any other provision of
this Agreement, no Early Termination Date shall be effectively
designated hereunder by Party B and no transfer of any rights or
obligations under this Agreement shall be made by either party unless
each Swap Rating Agency has been given prior written notice of such
designation or transfer.
(j) No Set-off. Except as expressly provided for in Section 2(c), Section 6
or Part 1(f)(i)(D) hereof, and notwithstanding any other provision of
this Agreement or any other existing or future agreement, each party
irrevocably waives any and all rights it may have to set off, net,
recoup or otherwise withhold or suspend or condition payment or
performance of any obligation between it and the other party hereunder
against any obligation between it and the other party under any other
agreements. Section 6(e) shall be amended by deleting the following
sentence: "The amount, if any, payable in respect of an Early
Termination Date and determined pursuant to this Section will be
subject to any Set-off.".
(k) Amendment. Notwithstanding any provision to the contrary in this
Agreement, no amendment of either this Agreement or any Transaction
under this Agreement shall be permitted by either party unless each of
the Swap Rating Agencies has been provided prior written notice of the
same and such amendment satisfies the Rating Agency Condition with
respect to S&P.
(l) Notice of Certain Events or Circumstances. Each Party agrees, upon
learning of the occurrence or existence of any event or condition that
constitutes (or that with the giving of notice or passage of time or
both would constitute) an Event of Default or Termination Event with
respect to such party, promptly to give the other Party and to each
Swap Rating Agency notice of such event or condition; provided that
failure to provide notice of such event or condition pursuant to this
Part 5(l) shall not constitute an Event of Default or a Termination
Event.
(m) Proceedings. No Relevant Entity shall institute against, or cause any
other person to institute against, or join any other person in
instituting against Party B, the Supplemental Interest Trust, or the
trust formed pursuant to the Pooling and Servicing Agreement, in any
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings or other proceedings under any federal or state bankruptcy
or similar law for a period of one year (or, if longer, the applicable
preference period) and one day following payment in full of the
Certificates and any Notes. This provision will survive the termination
of this Agreement.
(n) Supplemental Interest Trustee Liability Limitations. It is expressly
understood and agreed by the parties hereto that (i) any such
documentation is executed and delivered by Deutsche Bank National Trust
Company, not individually or personally but solely as Supplemental
Interest Trustee of the Supplemental Interest Trust under the Pooling
and Servicing Agreement pursuant to which the Supplemental Interest
Trust was formed, in the exercise of the powers and authority conferred
upon and vested in it, and pursuant to instructions set forth therein,
(ii) each of the representations, undertakings and agreements by
Deutsche Bank National Trust Company is made and intended not as a
personal representation, undertaking or agreement of Deutsche Bank
National Trust Company, but solely for the purpose of binding only the
Supplemental Interest Trust, (iii) nothing herein contained shall be
construed as imposing any liability upon Deutsche Bank National Trust
INDX 2007-FLX3 Schedule 14
Company, individually or personally, to perform any covenant (either
express or implied) contained herein, and all such liability, if any,
is hereby expressly waived by the parties hereto, and such waiver shall
bind any third party making a claim by or through one of the parties
hereto, and (iv) under no circumstances shall Deutsche Bank National
Trust Company be personally liable for the payment of any indebtedness
or expenses of the Supplemental Interest Trust, or be liable for the
breach or failure of any obligation, representation, warranty or
covenant made or undertaken by the Trust under this Confirmation, the
Agreement or any related document.
In order to comply with laws, rules, regulations and executive orders
in effect from time to time applicable to banking institutions,
including those relating to the funding of terrorist activities and
money laundering ("Applicable Law"), Deutsche Bank National Trust
Company is required to obtain, verify and record certain information
relating to individuals and entities which maintain a business
relationship with Deutsche Bank National Trust Company. Accordingly,
each of the parties agrees to provide to Deutsche Bank National Trust
Company upon its request from time to time such identifying information
and documentation as may be available for such party in order to enable
Deutsche Bank National Trust Company to comply with Applicable Law.
(o) Severability. If any term, provision, covenant, or condition of this
Agreement, or the application thereof to any party or circumstance,
shall be held to be invalid or unenforceable (in whole or in part) in
any respect, the remaining terms, provisions, covenants, and conditions
hereof shall continue in full force and effect as if this Agreement had
been executed with the invalid or unenforceable portion eliminated, so
long as this Agreement as so modified continues to express, without
material change, the original intentions of the parties as to the
subject matter of this Agreement and the deletion of such portion of
this Agreement will not substantially impair the respective benefits or
expectations of the parties; provided, however, that this severability
provision shall not be applicable if any provision of Section 2, 5, 6,
or 13 (or any definition or provision in Section 14 to the extent it
relates to, or is used in or in connection with any such Section) shall
be so held to be invalid or unenforceable.
The parties shall endeavor to engage in good faith negotiations to
replace any invalid or unenforceable term, provision, covenant or
condition with a valid or enforceable term, provision, covenant or
condition, the economic effect of which comes as close as possible to
that of the invalid or unenforceable term, provision, covenant or
condition.
(p) Agent for Party B. Party A acknowledges that the Depositor has
appointed the Supplemental Interest Trustee as agent under the Pooling
and Servicing Agreement to carry out certain functions on behalf of
Party B, and that the Supplemental Interest Trustee shall be entitled
to give notices and to perform and satisfy the obligations of Party B
hereunder on behalf of Party B.
(q) Escrow Payments. If (whether by reason of the time difference between
the cities in which payments or deliveries are to be made or otherwise)
it is not possible for simultaneous payments or deliveries to be made
on any date on which both parties are required to make payments or
deliveries hereunder, either party may at its option and in its sole
discretion notify the other party (section 2(b) of this Agreement
notwithstanding) that payments or deliveries on that date are to be
made in escrow (such party being the "Appointing Party"). In this case,
deposit of the payment or delivery due earlier on that date will be
made by 2.00 pm (local time at the place for the earlier payment or
delivery) on that date with an escrow agent selected by the Appointing
Party, accompanied by irrevocable payment or delivery instructions (i)
to release the deposited payment or delivery to the intended recipient
upon receipt by the escrow agent of the required deposit of the
corresponding payment or delivery from the other party on the same date
accompanied by irrevocable payment or delivery instructions to the same
effect, or (ii) if the required deposit of the corresponding payment or
delivery is not made on that same date, to return the payment or
delivery deposited to the party that paid or delivered it into escrow.
The Appointing Party will pay all costs of the escrow arrangements. The
Appointing Party will bear the risk of any failure of the bank it
nominates to be its escrow agent to fully and promptly perform the
obligations of such escrow agent as contemplated in this Part 5(q) Any
amounts payable or deliveries to be made under this Agreement by the
Appointing Party which are not received by the other party hereto on
the due date will remain due and payable or to be made by the
Appointing Party as of such date (assuming timely payment or delivery
on the due date of amounts payable or deliveries to be made by the
other party hereto). Any amounts or deliveries due from the other
party, which have been paid or delivered to the escrow agent in
accordance with this Part 5(q) (and any instructions in connection
therewith given to the other party by the Appointing Party) shall be
INDX 2007-FLX3 Schedule 15
treated as having been paid or delivered by such other party and
received by the Appointing Party as of the date on which they were paid
or delivered to the Appointing Party's escrow agent. The Appointing
Party shall cause the escrow arrangements to provide that the other
party shall be entitled to interest on any payment due to be deposited
first for each day in the period of its deposit at the rate offered by
the escrow agent for that day for overnight deposits in the relevant
currency in the office where it holds that deposited payment (at 11:00
a.m. local time on that day) if that payment is not released by to the
other party 5:00 p.m. local time on the date it is deposited for any
reason other than the intended recipient's failure to make the escrow
deposit it is required to make under this paragraph in a timely
fashion..
(r) Consent to Recording. Each party hereto consents to the monitoring or
recording, at any time and from time to time, by the other party of any
and all communications between trading, marketing, and operations
personnel of the parties and their Affiliates, waives any further
notice of such monitoring or recording, and agrees to notify such
personnel of such monitoring or recording.
(s) Waiver of Jury Trial. Each party waives any right it may have to a
trial by jury in respect of any suit, action or proceeding relating to
this Agreement or any Credit Support Document.
(t) Form of ISDA Master Agreement. Party A and Party B hereby agree that
the text of the body of the ISDA Master Agreement is intended to be the
printed form of the ISDA Master Agreement (Multicurrency - Crossborder)
as published and copyrighted in 1992 by the International Swaps and
Derivatives Association, Inc.
(u) Payment Instructions. Party A hereby agrees that, unless notified in
writing by Party B of other payment instructions, any and all amounts
payable by Party A to Party B under this Agreement shall be paid to the
account specified in Item 4 of this Confirmation, below.
(v) Additional representations.
(i) Representations of Party A. Party A represents to Party B on
the date on which Party A enters into each Transaction that:--
(1) Party A's obligations under this Agreement rank pari
passu with all of Party A's other unsecured,
unsubordinated obligations except those obligations
preferred by operation of law.
(2) Party A is an English bank and is regulated as a
European Union credit institution by the Financial
Services Authority under the Financial Servicers and
Markets Xxx 0000.
(ii) Capacity. Party A represents to Party B on the date on which
Party A enters into this Agreement that it is entering into
the Agreement and the Transaction as principal and not as
agent of any person. Deutsche Bank National Trust Company
represents to Party A on the date on which Deutsche Bank
National Trust Company executes this Agreement that it is
executing the Agreement not in its individual capacity but
solely as Supplemental Interest Trustee.
(w) Acknowledgements.
(i) Substantial financial transactions. Each party hereto is
hereby advised and acknowledges as of the date hereof that the
other party has engaged in (or refrained from engaging in)
substantial financial transactions and has taken (or refrained
from taking) other material actions in reliance upon the entry
by the parties into the Transaction being entered into on the
terms and conditions set forth herein and in the Pooling and
Servicing Agreement relating to such Transaction, as
applicable. This paragraph shall be deemed repeated on the
trade date of each Transaction.
(ii) Bankruptcy Code. Subject to Part 5(m), without limiting the
applicability if any, of any other provision of the U.S.
Bankruptcy Code as amended (the "Bankruptcy Code") (including
without limitation Sections 362, 546, 556, and 560 thereof and
the applicable definitions in Section 101 thereof), the
parties acknowledge and agree that all Transactions entered
into hereunder will constitute "forward contracts" or "swap
agreements" as defined in Section 101 of the Bankruptcy Code
or "commodity contracts" as defined in Section 761 of the
Bankruptcy Code, that the rights of the parties
INDX 2007-FLX3 Schedule 16
under Section 6 of this Agreement will constitute contractual
rights to liquidate Transactions, that any margin or
collateral provided under any margin, collateral, security,
pledge, or similar agreement related hereto will constitute a
"margin payment" as defined in Section 101 of the Bankruptcy
Code, and that the parties are entities entitled to the rights
under, and protections afforded by, Sections 362, 546, 556,
and 560 of the Bankruptcy Code.
(x) Additional Definitions.
As used in this Agreement, the following terms shall have the meanings
set forth below, unless the context clearly requires otherwise:
"Approved Ratings Threshold" means each of the S&P Approved
Ratings Threshold and the Moody's First Trigger Ratings
Threshold.
"Approved Replacement" means, with respect to a Market
Quotation, an entity making such Market Quotation, which
entity would satisfy conditions (a), (b), (c) and (d) of the
definition of Permitted Transfer (as determined by Party B in
its sole discretion, acting in a commercially reasonable
manner) if such entity were a Transferee, as defined in the
definition of Permitted Transfer.
"Derivative Provider Trigger Event" means (i) an Event of
Default with respect to which Party A is a Defaulting Party,
(ii) a Termination Event with respect to which Party A is the
sole Affected Party or (iii) an Additional Termination Event
with respect to which Party A is the sole Affected Party.
"Eligible Guarantee" means an unconditional and irrevocable
guarantee of all present and future obligations (for the
avoidance of doubt, not limited to payment obligations) of
Party A (or an Eligible Replacement) to Party B under this
Agreement that is provided by an Eligible Guarantor as
principal debtor rather than surety and that is directly
enforceable by Party B, the form and substance of which
guarantee are subject to the Rating Agency Condition with
respect to S&P, and either (A) a law firm has given a legal
opinion confirming that none of the guarantor's payments to
Party B under such guarantee will be subject to Tax collected
by withholding or (B) such guarantee provides that, in the
event that any of such guarantor's payments to Party B are
subject to Tax collected by withholding, such guarantor is
required to pay such additional amount as is necessary to
ensure that the net amount actually received by Party B (free
and clear of any Tax collected by withholding) will equal the
full amount Party B would have received had no such
withholding been required.
"Eligible Guarantor" means an entity that (A) has credit
ratings from S&P at least equal to the S&P Approved Ratings
Threshold, and (B) has credit ratings from Moody's at least
equal to the Moody's Second Trigger Ratings Threshold,
provided, for the avoidance of doubt, that an Eligible
Guarantee of an Eligible Guarantor with credit ratings below
the Moody's First Trigger Ratings Threshold will not cause a
Collateral Event (as defined in the Credit Support Annex) not
to occur or continue with respect to Moody's. All credit
ratings described in this definition of Eligible Guarantor
shall be provided to Party B in writing upon Party B's
request.
"Eligible Replacement" means an entity (A) (i) (a) that has
credit ratings from S&P at least equal to the S&P Approved
Ratings Threshold, and (b) has credit ratings from Moody's at
least equal to the Moody's Second Trigger Ratings Threshold,
provided, for the avoidance of doubt, that an Eligible
Replacement with credit ratings below the Moody's First
Trigger Ratings Threshold will not cause a Collateral Event
(as defined in the Credit Support Annex) not to occur or
continue with respect to Moody's, or (ii) the present and
future obligations (for the avoidance of doubt, not limited to
payment obligations) of which entity to Party B under this
Agreement are guaranteed pursuant to an Eligible Guarantee and
(B) that has executed an Item 1115 Agreement with IndyMac
Bank, F.S.B. All credit ratings described in this definition
of Eligible Guarantor shall be provided to Party B in writing
upon Party B's request.
"Estimated Swap Termination Payment" means, with respect to an
Early Termination Date, an amount determined by Party A in
good faith and in a commercially reasonable manner as the
maximum
INDX 2007-FLX3 Schedule 17
payment that could be owed by Party B to Party A in respect of
such Early Termination Date pursuant to Section 6(e) of the
ISDA Master Agreement, taking into account then current market
conditions.
"Firm Offer" means (A) with respect to an Eligible
Replacement, a quotation from such Eligible Replacement (i) in
an amount equal to the actual amount payable by or to Party B
in consideration of an agreement between Party B and such
Eligible Replacement to replace Party A as the counterparty to
this Agreement by way of novation or, if such novation is not
possible, an agreement between Party B and such Eligible
Replacement to enter into a Replacement Transaction (assuming
that all Transactions hereunder become Terminated
Transactions), and (ii) that constitutes an offer by such
Eligible Replacement to replace Party A as the counterparty to
this Agreement or enter a Replacement Transaction that will
become legally binding upon such Eligible Replacement upon
acceptance by Party B, and (B) with respect to an Eligible
Guarantor, an offer by such Eligible Guarantor to provide an
Eligible Guarantee that will become legally binding upon such
Eligible Guarantor upon acceptance by the offeree.
"Moody's" means Xxxxx'x Investors Service, Inc., or any
successor thereto.
"Moody's First Trigger Ratings Event" means that no Relevant
Entity has credit ratings from Moody's at least equal to the
Moody's First Trigger Ratings Threshold.
"Moody's First Trigger Ratings Threshold" means, with respect
to Party A, the guarantor under an Eligible Guarantee or an
Eligible Replacement, (i) if such entity has a short-term
unsecured and unsubordinated debt rating from Moody's, a
long-term unsecured and unsubordinated debt rating or
counterparty rating from Moody's of "A2" and a short-term
unsecured and unsubordinated debt rating from Moody's of
"Prime-1", or (ii) if such entity does not have a short-term
unsecured and unsubordinated debt rating or counterparty
rating from Moody's, a long-term unsecured and unsubordinated
debt rating or counterparty rating from Moody's of "A1".
"Moody's Second Trigger Ratings Event" means that no Relevant
Entity has credit ratings from Moody's at least equal to the
Moody's Second Trigger Ratings Threshold.
"Moody's Second Trigger Ratings Threshold" means, with respect
to Party A, the guarantor under an Eligible Guarantee or an
Eligible Replacement, (i) if such entity has a short-term
unsecured and unsubordinated debt rating from Moody's, a
long-term unsecured and unsubordinated debt rating or
counterparty rating from Moody's of "A3" and a short-term
unsecured and unsubordinated debt rating from Moody's of
"Prime-2", or (ii) if such entity does not have a short-term
unsecured and unsubordinated debt rating from Moody's, a
long-term unsecured and unsubordinated debt rating or
counterparty rating from Moody's of "A3".
"Permitted Transfer" means a transfer by novation by Party A
pursuant to Section 6(b)(ii), Part 5(d), Part 5(e), or the
second paragraph of Section 7 (as amended herein) to a
transferee (the "Transferee") of all, but not less than all,
of Party A's rights, liabilities, duties and obligations under
this Agreement, with respect to which transfer each of the
following conditions is satisfied: (a) the Transferee is an
Eligible Replacement; (b) Party A and the Transferee are both
"dealers in notional principal contracts" within the meaning
of Treasury regulations section 1.1001-4; (c) as of the date
of such transfer the Transferee would not be required to
withhold or deduct on account of Tax from any payments under
this Agreement or would be required to gross up for such Tax
under Section 2(d)(i)(4); (d) an Event of Default or
Termination Event would not occur as a result of such
transfer; (e) pursuant to a written instrument (the "Transfer
Agreement"), the Transferee acquires and assumes all rights
and obligations of Party A under the Agreement and the
relevant Transaction; (f) Party B shall have determined, in
its sole discretion, acting in a commercially reasonable
manner, that such Transfer Agreement is effective to transfer
to the Transferee all, but not less than all, of Party A's
rights and obligations under the Agreement and all relevant
Transactions; (g) Party A will be responsible for any costs or
expenses incurred in connection with such transfer (including
any replacement cost of entering into a replacement
transaction); (h) either (A) Moody's has been given prior
written notice of such transfer and the Rating Agency
Condition is satisfied with respect to S&P or (B) each Swap
Rating Agency has been given prior written notice of such
transfer and such transfer is in connection with the
INDX 2007-FLX3 Schedule 18
assignment and assumption of this Agreement without
modification of its terms, other than party names, dates
relevant to the effective date of such transfer, tax
representations (provided that the representations in Part
2(a)(i) are not modified) and any other representations
regarding the status of the substitute counterparty of the
type included in Part 5(b)(iv), Part 5(v)(i)(2) or Part
5(v)(ii), notice information and account details; and (i) such
transfer otherwise complies with the terms of the Pooling and
Servicing Agreement.
"Rating Agency Condition" means, with respect to any
particular proposed act or omission to act hereunder and each
Swap Rating Agency specified in connection with such proposed
act or omission, that the party acting or failing to act must
consult with each of the specified Swap Rating Agencies and
receive from each such Swap Rating Agency a prior written
confirmation that the proposed action or inaction would not
cause a downgrade or withdrawal of the then current rating of
any Certificates or Notes.
"Ratings Downgrade Event" means that no Relevant Entity has
credit ratings equal to the Approved Ratings Threshold.
"Relevant Entity" means Party A and, to the extent applicable,
a guarantor under an Eligible Guarantee.
"Replacement Transaction" means, with respect to any
Terminated Transaction or group of Terminated Transactions, a
transaction or group of transactions that (i) would have the
effect of preserving for Party B the economic equivalent of
any payment or delivery (whether the underlying obligation was
absolute or contingent and assuming the satisfaction of each
applicable condition precedent) by the parties under Section
2(a)(i) in respect of such Terminated Transaction or group of
Terminated Transactions that would, but for the occurrence of
the relevant Early Termination Date, have been required after
that Date, and (ii) has terms which are substantially the same
as this Agreement, including, without limitation, rating
triggers, Regulation AB compliance, and credit support
documentation, save for the exclusion of provisions relating
to Transactions that are not Terminated Transaction, as
determined by Party B in its sole discretion, acting in a
commercially reasonable manner.
"Required Ratings Downgrade Event" means that no Relevant
Entity has credit ratings at least equal to the Required
Ratings Threshold.
"Required Ratings Threshold" means each of the S&P Required
Ratings Threshold and the Moody's Second Trigger Ratings
Threshold.
"S&P" means Standard & Poor's Rating Services, a division of
The XxXxxx-Xxxx Companies, Inc., or any successor thereto.
"S&P Approved Ratings Threshold" means, with respect to Party
A, the guarantor under an Eligible Guarantee or an Eligible
Replacement, a short-term unsecured and unsubordinated debt
rating from S&P of "A-1", or, if such entity does not have a
short-term unsecured and unsubordinated debt rating from S&P,
a long-term unsecured and unsubordinated debt rating or
counterparty rating from S&P of "A+".
"S&P Required Ratings Threshold" means, with respect to Party
A, the guarantor under an Eligible Guarantee or an Eligible
Replacement, a long-term unsecured and unsubordinated debt
rating or counterparty rating from S&P of "BBB+".
"Swap Rating Agencies" means, with respect to any date of
determination, each of S&P and Moody's, to the extent that
each such rating agency is then providing a rating for any of
the IndyMac INDX Mortgage Loan Trust 2007-FLX3, Mortgage
Pass-Through Certificates, Series 2007-FLX3 (the
"Certificates") or any notes backed by the Certificates (the
"Notes").
INDX 2007-FLX3 Schedule 19
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INDX 2007-FLX3 Schedule 20
IN WITNESS WHEREOF, the parties have executed this document by their duly
authorized officers with effect from the date so specified on the first page
hereof.
Deutsche Bank National Trust Company, not
individually, but solely as supplemental interest
trustee of the Supplemental Interest Trust created
under the Pooling and Servicing Agreement for
IndyMac INDX Mortgage Loan Trust 2007-FLX3,
Credit Suisse International Mortgage Pass-Through Certificates, Series 2007-FLX3
By: /s/ Xxxxxxx Xxxxxx By: /s/ Xxxxxx Xxxxx
------------------- ----------------
Name: Xxxxxxx Xxxxxx Name: Xxxxxx Xxxxx
Title: Authorized Signatory Title: Associate
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Name: Xxxxx X. Xxxxxxx
Title: Authorized Signatory
INDX 2007-FLX3 Schedule 21
