Exhibit 99.6
Item 1115 Agreement dated as of December 28, 2006 (this "Agreement"),
between IndyMac Bank, F.S.B., a federal savings bank ("IndyMac Bank"), IndyMac
MBS, Inc., a Delaware corporation ("IndyMac MBS" or the "Depositor"), and
Credit Suisse International, as counterparty (the "Counterparty").
RECITALS
WHEREAS, IndyMac MBS has filed a Registration Statement on Form S-3
(the "Registration Statement") with the Securities and Exchange Commission
(the "Commission") for purposes of offering mortgage backed notes and/or
certificates (the "Securities") through Residential Asset Securitization Trust
2006-A41 (the "SPV").
WHEREAS, on the closing date (the "Closing Date") of the transaction
pursuant to which the Securities are offered (the "Transaction"), the
Counterparty and the SPV will enter a derivative agreement (the "Derivative
Agreement"), pursuant to which Counterparty and the SPV will enter into one or
more interest rate swaps (caps) 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 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)(v).
Master Agreement: The ISDA Master Agreement between the Counterparty
and SPV (or on behalf of the SPV), dated December 28, 2006.
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. 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) if requested in writing by IndyMac Bank, a description of
any affiliation or relationship (as set forth in Item
1119) between the Counterparty and any of the following
parties:
(1) Deutsche Bank National Trust Company;
(2) any originator identified to the Counterparty by
IndyMac Bank;
(3) any enhancement or support provider identified to the
Counterparty by IndyMac Bank; and
(4) any other material transaction party identified to
the Counterparty by IndyMac Bank.
(ii) if requested by the Depositor in the event the "significance
percentage" under Regulation AB equals or exceeds 8% (as
determined by IndyMac Bank in good faith) for the purpose of
compliance with Item 1115(b) with
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respect to a Transaction (prior to the 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 in form and substance required
by Item 1115(b)(1) or (b)(2) of Regulation AB (as
specified by the 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 either 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 or incorporation by reference in the Prospectus
Supplement and, if applicable, in a form suitable for
conversion into an XXXXX-compliant 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 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) if requested by IndyMac Bank in writing, then no later than
March 1 of each calendar year, the Counterparty shall (1)
notify the 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
Depositor) and (2) provide to the 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 Depositor for the Prospectus Supplement, within 5 Business
Days of the release of any updated financial data, the
Counterparty shall (1) provide current Company Financial
Information (including Company Financial Information of any
Counterparty Guarantor) in form and substance as required under
Item 1115(b) of Regulation AB to the Depositor for
incorporation by reference in the Exchange Act reports of the
Depositor or in a form suitable for conversion into an
XXXXX-compliant 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 Depositor requests Company Financial Information from
the Counterparty, for the purpose of compliance with Item
1115(b) of Regulation AB following the Closing Date in the
event the "significance
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percentage" under Regulation AB equals or exceeds 8% (as
determined by IndyMac Bank in good faith), 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) in
form and substance as required under Item 1115(b) of Regulation
AB to the Depositor for incorporation by reference in the
Exchange Act Reports of the Depositor or in an XXXXX-compliant
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) in form and substance as required under
Item 1115(b) of Regulation AB to the Depositor for
incorporation by reference in the Exchange Act Reports of the
Depositor or in a form suitable for conversion into an
XXXXX-compliant 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 or (c) if permissible under Regulation AB,
procure a guarantee of Counterparty's obligations under the
Derivative Agreement that meets the requirements of Regulation
AB.
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 accountants who certify the financial statements and
supporting schedules included in the Company Financial
Information (including Company Financial Information of any
Counterparty Guarantor) (if 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
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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 the ISDA Master Agreement so that the
SPV who is a beneficiary of the ISDA Master Agreement shall be an
express third party beneficiary of this Agreement.
Section 4. Indemnification; Remedies
(a) Each of the Counterparty and any Counterparty Guarantor shall
indemnify IndyMac Bank and the 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 the
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,
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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 or to assign or procure a guarantee
of (if permitted under Regulation AB) the Derivative Agreement
when and as required under Section 2; provided that this
indemnity shall have effect only in the event that the
"significance percentage under Regulation AB equals or exceeds
10% (as determined by IndyMac Bank in good faith).
In the case of any failure by Counterparty or Counterparty Guarantor
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 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, certification, accountants' consent or
other material not delivered as required by the Counterparty.
(b) In addition to the indemnification provisions above, the SPV (as a
third party beneficiary of this Agreement) will have the additional
remedies set forth in the Derivative Agreement.
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, "Company Financial Information" shall be deemed to refer to
the financial information of such permitted entity provided the
Counterparty has received
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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 the SPV or any Administrator.
(e) Governing Law. This Agreement and, to the fullest extent permitted
by applicable law, all matters arising out of or relating in any way
to 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.
(k) Waiver of Trial By Jury. Insofar as is permitted by law, each party
irrevocably waives any and all rights to trial by jury in any legal
proceeding in connection with this Agreement, and acknowledges that
this waiver is a material inducement to the other party's entering
into this Agreement hereunder.
(l) Jurisdiction. With respect to any suit, action or proceeding
relating to this Agreement, each party irrevocably submits to the
jurisdiction of courts in the State of New York and the United
States District Court located in the Borough of Manhattan in New
York City.
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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
--------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
INDYMAC BANK, F.S.B.
By: /s/ Xxxx Xxxxxxxx
--------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
CREDIT SUISSE INTERNATIONAL
By: /s/ Xxxxxx Xxxxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Authorized Signatory
By: /s/ Xxxxx Xxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
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