EXHIBIT 99.3
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The Schedule to the ISDA Master Agreement
EXECUTION VERSION
SCHEDULE
to the
Master Agreement
dated as of September 28, 2006
between
JPMORGAN CHASE BANK, N.A. and DEUTSCHE BANK NATIONAL TRUST COMPANY
("Xxxxxx") not in its individual capacity, but solely
as Swap Trustee for the Swap Trust for
IndyMac INDX Mortgage Loan Trust 2006-AR29
("Counterparty")
Part 1
Termination Provisions
In this Agreement:-
(1) "Specified Entity" shall not apply.
(2) The "Breach of Agreement" provisions of Section 5(a)(ii) will apply to
Xxxxxx and will not apply to the Counterparty.
(3) The "Credit Support Default" provisions of Section 5(a)(iii) will apply
to Xxxxxx and will not apply to the Counterparty.
(4) The "Misrepresentation" provisions of Section 5(a)(iv) will apply to
Xxxxxx and will not apply to the Counterparty.
(5) The "Default Under Specified Transaction" provisions of Section 5(a)(v)
will not apply to Xxxxxx and will not apply to the Counterparty.
(6) The "Cross Default" provisions of Section 5(a)(vi) will not apply to the
Counterparty. The "Cross Default" provisions of Section 5(a)(vi) will
apply to Xxxxxx and for such purpose:
(a) "Specified Indebtedness" will have the meaning specified in
Section 14, except that such term shall not include obligations
in respect of deposits received in the ordinary course of such
party's banking business.
(b) "Threshold Amount" means, with respect to Xxxxxx, an amount
equal to three percent of the shareholders' equity of Xxxxxx.
(7) The "Merger Without Assumption" provisions of Section 5(a)(viii) will
apply to Xxxxxx and will not apply to the Counterparty.
(8) The "Tax Event" provisions of Section 5(b)(ii) will apply to Xxxxxx and
will not apply to the Counterparty.
(9) The "Tax Event Upon Merger" provisions of Section 5(b)(iii) will apply
to Xxxxxx and will not apply to the Counterparty.
(10) The "Credit Event Upon Merger" provisions of Section 5(b)(iv) will not
apply to Xxxxxx and will not apply to the Counterparty.
(11) The "Additional Termination Event" provisions of Section 5(b)(v) will
apply as set forth in Part 1 (15) hereof.
(12) The "Automatic Early Termination" provisions of Section 6(a) will not
apply to Xxxxxx and will not apply to the Counterparty.
(13) "Termination Currency" means United States Dollars.
(14) For purposes of computing amounts payable on early termination:
(a) Market Quotation will apply to this Agreement; and
(b) The Second Method will apply to this Agreement.
(15) The occurrence of each of the following events shall constitute an
"Additional Termination Event" for purposes of Section 5(b)(v):
(a) [RESERVED];
(b) [RESERVED]
(c) If (i) any trust instrument is given effect, (ii) Xxxxxx has
not consented in writing to such trust instrument prior to the
date on which such trust instrument takes effect and (iii) any
provision of such trust instrument materially and adversely
affects the amount, timing or priority of payments due from the
Counterparty to Xxxxxx, as determined in Xxxxxx'x sole
discretion. If this Additional Termination Event occurs, then,
with effect from the date on which the swap trust instrument
took effect, the Counterparty shall be the sole Affected Party
and all Transactions then outstanding between the parties shall
be Affected Transactions; or
(d) the occurrence of an Additional Termination Event as forth
in Part 5 (10) hereof. If this Additional Termination Event
occurs, Xxxxxx shall be the sole Affected Party and all
Transactions then outstanding between the parties shall be
Affected Transactions.
In the case of the occurrence of an Additional Termination Event
described above (other than Part 1(15)(d) above), the provisions
of Section 6(b)(iv) shall be modified to provide that either
party may, by not more than 20 days notice to the other party
and provided that the relevant Additional Termination Event is
then continuing, designate a day no earlier than the day such
notice is effective as an Early Termination Date.
(16) Notwithstanding any other provision of the Agreement, clause (2) of the
"Bankruptcy" provision of Section 5(a)(vii) shall not apply to the
Counterparty.
Part 2
Tax Representations
(1) Payer Tax Representation:
For the purpose of Section 3(e) of this Agreement, Xxxxxx and
Counterparty each make the following representation:
It is not required by any applicable law, as modified by the practice of
any relevant governmental revenue authority, of any Relevant
Jurisdiction to make any deduction or withholding for or on account of
any Tax from any payment (other than interest under Section 2(e),
6(d)(ii) or 6(e) of this Agreement) to be made by it to the other party
under this Agreement. In making this representation, it may rely on:
(i) the accuracy of any representations made by the other party
pursuant to Section 3(f) of this Agreement;
(ii) the satisfaction of the agreement of the other party contained
in Section 4(a)(i) or 4(a)(iii) of this Agreement and the
accuracy and effectiveness of any document provided by the other
party pursuant to Section 4(a)(i) or 4(a)(iii) of this
Agreement; and
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(iii) the satisfaction of the agreement of the other party contained
in Section 4(d) of this Agreement,
provided that it shall not be a breach of this representation where
reliance is placed on clause (ii) and the other party does not deliver a
form or document under Section 4(a)(iii) of this Agreement by reason of
material prejudice to its legal or commercial position.
(2) Payee Tax Representation:
For the purpose of Section 3(f), Xxxxxx and Counterparty each represent,
respectively, that it is a United States Person for U.S. federal income
tax purposes and either (a) is a financial institution or (b) is not
acting as an agent for a person that is not a United States Person for
U.S. federal income tax purposes
Part 3
Agreement to Deliver Documents
For the purpose of Sections 4(a)(i) and (ii), each party agrees to deliver the
following documents, as applicable:
(1) Xxxxxx will, on demand, deliver a certificate (or, if available, the
current authorized signature book of Xxxxxx) specifying the names, title
and specimen signatures of the persons authorized to execute this
Agreement and each Confirmation on its behalf.
(2) The Counterparty will, on demand, deliver a certificate (or, if
available, the current authorized signature book of the Counterparty)
specifying the names, title and specimen signatures of the persons
authorized to execute this Agreement and each Confirmation on its
behalf.
(3) The Counterparty will, upon execution of this Agreement, deliver a
conformed copy of the Pooling Agreement.
(4) Each party will, upon execution of this Agreement, deliver a legal
opinion of counsel in form and substance satisfactory to the other party
regarding this Agreement and any other matters as such other party may
reasonably request.
(5) The Counterparty shall supply (and/or shall instruct the Swap Trustee to
supply) Xxxxxx with copies of all accountings and reports required to be
supplied to a party that is a Certificateholder (as defined in the
Pooling Agreement). Copies of such accountings and/or reports shall be
delivered to Xxxxxx at the following address:
JPMorgan Chase Bank, National Association
c/o Xxxx Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
e-mail address: xxxx.x.xxxxxx@xxxxxxxx.xxx
Each of the foregoing documents (other than the legal opinions described in (4)
above) is covered by the representation contained in Section 3(d) of this
Agreement.
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Part 4
Miscellaneous
(1) Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York without reference to
choice of law doctrine.
(2) Notices.
(a) In connection with Section 12(a), all notices to Xxxxxx shall,
with respect to any particular Transaction, be sent to the
address, telex number or facsimile number specified in the
relevant Confirmation and any notice for purposes of Sections 5
or 6 of the Agreement shall be sent to the address or telex
number specified below:
JPMorgan Chase Bank, N.A.
Attention: Legal Department-Derivatives Practice Group
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telex No.: 232337; Answerback: CBC UR
Facsimile No.: (000) 000-0000
(b) In connection with Section 12(a), all notices to the
Counterparty shall, with respect to any particular Transaction,
be sent to the address, telex number or facsimile number
specified in the relevant Confirmation and any notice for
purposes of Sections 5 or 6 of the Agreement shall be sent to
the address or telex number specified below:
Deutsche Bank AG, New York Branch
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: INDYMAC INDX MORTGAGE LOAN TRUST 2006-AR29
(3) Netting of Payments. Section 2(c)(ii) of this Agreement will apply, with
the effect that payment netting will not take place with respect to
amounts due and owing in respect of more than one Transaction.
(4) Offices; Multibranch Party. For purposes of Section 10:
(a) Section 10(a) will apply; and
(b) For the purpose of Section 10(c):
(i) Xxxxxx is a Multibranch Party and may act through its London
and New York Offices.
(ii) The Counterparty is not a Multibranch Party.
(5) Credit Support Documents.
With respect to Xxxxxx, if applicable, any Third Party Credit Support
Document delivered by Xxxxxx shall constitute a Credit Support Document.
With respect to Xxxxxx and the Counterparty, if applicable, any Approved
Credit Support Document shall constitute a Credit Support Document.
(6) Credit Support Provider.
With respect to Xxxxxx, the party guaranteeing Xxxxxx'x obligations
pursuant to a Third Party Credit Support Document, if any, shall be a
Credit Support Provider.
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(7) Process Agents. The Counterparty appoints as its Process Agent for the
purpose of Section 13(c):
Not applicable
Part 5
Other Provisions
(1) ISDA Definitions. Reference is hereby made to the 2000 ISDA Definitions
(the "ISDA Definitions") each as published by the International Swaps
and Derivatives Association, Inc., which are hereby incorporated by
reference herein. Any terms used and not otherwise defined herein which
are contained in the ISDA Definitions shall have the meaning set forth
therein.
(2) Scope of Agreement. Notwithstanding anything contained in the Agreement
to the contrary, if the parties enter into any Specified Transaction,
such Specified Transaction shall be subject to, governed by and
construed in accordance with the terms of this Agreement unless the
Confirmation relating thereto shall specifically state to the contrary.
Each such Specified Transaction shall be a Transaction for the purposes
of this Agreement.
(3) Inconsistency. In the event of any inconsistency between any of the
following documents, the relevant document first listed below shall
govern: (i) a Confirmation; (ii) the Schedule; (iii) the ISDA
Definitions; and (iv) the printed form of ISDA Master Agreement.
(4) Calculation Agent. The Calculation Agent will be Xxxxxx.
(5) Waiver of Jury Trial. Each party waives, to the fullest extent permitted
by applicable law, 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. Each party (i) certifies that no
representative, agent or attorney of the other party or any Credit
Support Provider has represented, expressly or otherwise, that such
other party would not, in the event of such a suit, action or
proceeding, seek to enforce the foregoing waiver and (ii) acknowledges
that it and the other party have been induced to enter into this
Agreement and provide for any Credit Support Document, as applicable,
by, among other things, the mutual waivers and certifications in this
Section.
(6) Severability. In the event any one or more of the provisions contained
in this Agreement should be held invalid, illegal, 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 to this Agreement;
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.
(7) No Gross-up for Counterparty. Section 2(d) of the Agreement shall not
apply with respect to the Counterparty so that the Counterparty shall
not be obligated to gross up pursuant thereto.
(8) Xxxxxx Acknowledgment. Notwithstanding anything to the contrary in this
Agreement, Xxxxxx hereby
(a) acknowledges and agrees that the Counterparty has pledged its rights
under this Agreement to the Swap Trustee pursuant to the Pooling
Agreement and that in the event of an Event of Default (as defined in
the Pooling Agreement) the Swap Trustee shall be entitled to exercise
all rights and remedies of a secured party with respect to this
Agreement; and
(b) agrees that, unless notified in writing by the Swap Trustee of other
payment instructions, any and all amounts payable by Xxxxxx to the
Counterparty shall be paid to the Swap Trustee.
(9) No Petition; Limited Recourse. Xxxxxx hereby agrees that it shall not
until a period of one year and one day (or if longer, the applicable
preference period) after all rated liabilities of the Trust have been
indefeasibly paid in full institute against, or join any other Person in
instituting against the Counterparty any bankruptcy, reorganization,
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arrangement, insolvency, moratorium or liquidation proceedings or other
proceedings under U.S. federal or state or other bankruptcy or similar
laws. Notwithstanding the foregoing, nothing herein shall prevent Xxxxxx
from participating in any such proceeding once commenced. This provision
shall survive termination of this Agreement.
Xxxxxx hereby acknowledges and agrees that the Counterparty's
obligations hereunder will be solely the limited recourse obligations of
the Counterparty, and that Xxxxxx will not have any recourse to any of
the directors, officers, employees, shareholders or affiliates of the
Counterparty with respect to any claims, losses, damages, liabilities,
indemnities or other obligations in connection with any transactions
contemplated hereby. Notwithstanding any other provisions hereof,
recourse in respect of any obligations of the Counterparty to Xxxxxx
hereunder or thereunder will be limited to the Collateral and on the
exhaustion thereof all claims against the Counterparty arising from this
Confirmation or any other transactions contemplated hereby or thereby
shall be extinguished.
(10) Ratings Downgrade Provisions. Unless written notification to the
contrary has been received from the Rating Agencies, following the
occurrence of a Ratings Event I and/or a Ratings Event II, the parties
shall comply with the following provisions, as applicable.
I. If a Ratings Event I shall occur and be continuing with respect to
Xxxxxx, then Xxxxxx shall, within 5 Local Business Days of the
occurrence of such Ratings Event I, give notice of the occurrence of
such Ratings Event I to Counterparty. Following the occurrence of such
Ratings Event I, Xxxxxx shall within 30 calendar days, at its own
expense, either:
(A) provide, or cause to be provided, a Third Party Credit
Support Document to Counterparty;
(B) transfer Xxxxxx'x rights and obligations under the Agreement
and all Confirmations to another party; or
(C) deliver Eligible Collateral to Counterparty in accordance
with the terms of an Approved Credit Support Document; provided,
however that Xxxxxx'x rights under this subparagraph (C) are
subject to the confirmation of the Rating Agencies.
Notwithstanding the foregoing, Xxxxxx'x obligations under this
Part 5(10)(I) to post Eligible Collateral under the Approved
Credit Support Document shall remain in effect only for so long
as a Ratings Event I is continuing with respect to Xxxxxx.
Each of I(A), I(B) and I(C) above shall be subject to satisfaction of
the Rating Agency Condition.
If, on or prior to the date that is 30 calendar days after the
occurrence of a Ratings Event I, Xxxxxx has provided a Third Party
Credit Support Document as provided in I(A) above and the Rating Agency
Condition has been satisfied, then, for so long as such Third Party
Credit Support Document is in effect and the Rating Agency Condition
continues to be satisfied, Xxxxxx shall have no further obligations in
respect of this Part 5(10)(I).
The failure by Xxxxxx to comply with the provisions hereof shall
constitute an Additional Termination Event, with Xxxxxx as the sole
Affected Party and all Transactions then outstanding between the parties
as Affected Transactions.
II. If a Ratings Event II shall occur and be continuing with respect to
Xxxxxx, then Xxxxxx shall, within 5 Local Business Days of the
occurrence of such Ratings Event II, give notice of the occurrence of
such Ratings Event II to Counterparty. Following the occurrence of such
Ratings Event II, Xxxxxx shall, within 10 business days, at its own
expense, either:
(A) to the extent that is has not already done so in accordance
with Part 5(10)(I), provide, or cause to be provided, a Third
Party Credit Support Document to Counterparty; or
(B) transfer Xxxxxx'x rights and obligations under the Agreement
and all Confirmations to another party.
Each of II(A) and II(B) above shall be subject to satisfaction of the
Rating Agency Condition.
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If, on or prior to the date that is 10 business days after the
occurrence of a Ratings Event II, Xxxxxx has provided a Third Party
Credit Support Document as provided in II(A) or I(A) above and the
Rating Agency Condition has been satisfied, then, for so long as such
Third Party Credit Support Document is in effect and the Rating Agency
Condition continues to be satisfied, then, (i) Xxxxxx shall have no
further obligations in respect of this Part 5(10)(II) and, (ii) if
Xxxxxx was delivering Eligible Collateral to Counterparty in accordance
with the terms of an Approved Credit Support Document pursuant to the
provisions of Part 5(10)(I) hereof, Xxxxxx shall have no further
obligations to deliver Eligible Collateral under the Approved Credit
Support Document.
If,
(i) on or prior to the date that is 10 business days after the
occurrence of a Ratings Event II, Xxxxxx has not provided a
Third Party Credit Support Document as provided in II(A) above
or transferred its rights and obligations as provided in II(B)
above, or
(ii) Xxxxxx has provided a Third Party Credit Support Document
as provided in II(A) or I(A) above but such Third Party Credit
Support Document has ceased to be in effect and/or the Rating
Agency Condition is no longer satisfied,
then, on the first Local Business Day following the date that is 10
business days after the occurrence of the Ratings Event II (in respect
of (i) above) or on the first Local Business Day following the date on
which the Third Party Credit Support Document referred to in (ii) above
has ceased to be in effect and/or fails to satisfy the Rating Agency
Condition, and only to the extent that Xxxxxx is not already delivering
Eligible Collateral to Counterparty in accordance with the terms of an
Approved Credit Support Document pursuant to the provisions of Part
5(10)(I) hereof, Counterparty shall demand that Xxxxxx deliver Eligible
Collateral to Counterparty in accordance with the terms of an Approved
Credit Support Document. Upon request and only if necessary to satisfy
the Rating Agency Condition, concurrently with such delivery of Eligible
Collateral, Xxxxxx shall cause its counsel to deliver to Counterparty an
opinion as to the enforceability of Counterparty's security interest in
such Eligible Collateral in all relevant jurisdictions. Notwithstanding
Xxxxxx'x posting of Eligible Collateral in accordance with the terms of
the Approved Credit Support Document, Xxxxxx shall use best efforts to
either transfer its rights and obligations to an acceptable third party
or to provide a Third Party Credit Support Document. Notwithstanding the
foregoing, Xxxxxx'x obligations under this Part 5(10)(II) to find a
transferee or provide a Third Party Credit Support Document and to post
Eligible Collateral under the Approved Credit Support Document shall
remain in effect only for so long as a Ratings Event II is continuing
with respect to Xxxxxx. Notwithstanding the foregoing, if such Ratings
Event II is of the type described in clause (a) of the definition
thereof, then Xxxxxx must follow subparagraph II(B) above.
The failure by Xxxxxx to comply with the provisions hereof II shall
constitute an Additional Termination Event, with Xxxxxx as the sole
Affected Party and all Transactions then outstanding between the parties
as Affected Transactions.
As used herein:
"Approved Credit Support Document" means a security agreement in the
form of the 1994 ISDA Credit Support Annex (ISDA Agreements Subject to
New York Law Only), as modified by the Paragraph 13 thereto, which
Paragraph 13 will be in the form of Annex A to this Agreement;
"Fitch" means Fitch Ratings, or its successor in interest thereto.
"Moody's" means Xxxxx'x Investors Service, Inc. or any successor
thereto;
"Rating Agencies" means S&P, Xxxxx'x and Xxxxx;
"Rating Agency Condition" means, with respect to any particular proposed
act or omission to act hereunder that the party acting or failing to act
must consult with any of the Rating Agencies then providing a rating of
the Certificates and receive from the Rating Agencies a prior written
confirmation that the proposed action or inaction would not cause a
downgrade or withdrawal of the then-current rating of the Certificates;
"Ratings Event I" shall occur with respect to Xxxxxx (to the extent that
Xxxxxx'x relevant obligations are rated by Moody's) if Xxxxxx'x
long-term senior unsecured debt rating by Xxxxx'x is lower than A1 or is
A1 on negative
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watch or Xxxxxx'x short-term senior unsecured debt rating by Xxxxx'x is
lower than P-1 or is P-1 on negative watch or if Xxxxxx'x short-term
senior unsecured debt rating by S&P is lower than A-1;
"Ratings Event II" shall occur with respect to Xxxxxx (to the extent
that Xxxxxx'x relevant obligations are rated by S&P and/or Moody's) if
(a) Xxxxxx'x long-term senior unsecured debt rating by S&P is BB+ or
lower or is withdrawn, (b) Xxxxxx'x long-term senior unsecured debt
rating by Xxxxx'x is A3 or lower or Xxxxxx'x short-term senior unsecured
debt rating by Xxxxx'x is P-2 or lower or (c) Xxxxxx'x long-term senior
unsecured debt rating by Fitch is A or lower or Xxxxxx'x short-term
senior unsecured debt rating by Fitch is F-2 or lower;
"Pooling Agreement" means the pooling and servicing agreement dated
September 1, 2006 among INDYMAC MBS, INC., a Delaware corporation, as
depositor (the "Depositor"), IndyMac Bank, F.S.B. ("IndyMac"), a federal
savings bank, as seller (in that capacity, the "Seller") and as servicer
(in that capacity, the "Servicer"), and Deutsche Bank National Trust
Company, a national banking association, as trustee (the "Trustee") and
as swap trustee (in that capacity, the "Swap Trustee");
"S&P" means by Standard & Poor's Ratings Service or any successor
thereto; and
"Third Party Credit Support Document" means any agreement or instrument
(including any guarantee, insurance policy, security agreement or pledge
agreement) whose terms provide for the guarantee of Xxxxxx'x obligations
under this Agreement by a third party.
(11) Additional Representations. Section 3 is hereby amended by adding at the
end thereof the following paragraphs:
"(g) It is an "eligible contract participant" under, and as defined in,
Section 1a(12) of the Commodity Exchange Act, as amended.
(h) Each party will be deemed to represent to the other party on the
date on which it enters into a Transaction that (absent a written
agreement between the parties that expressly imposes affirmative
obligations to the contrary for that Transaction):
(i) Non-Reliance. It is acting for its own account, and it has
made its own independent decisions to enter into that
Transaction and as to whether that Transaction is appropriate or
proper for it based upon its own judgment and upon advice from
such advisers as it has deemed necessary. It is not relying on
any communication (written or oral) of the other party as
investment advice or as a recommendation to enter into that
Transaction; it being understood that information and
explanations related to the terms and conditions of a
Transaction shall not be considered investment advice or a
recommendation to enter into that Transaction. No communication
(written or oral) received from the other party shall be deemed
to be an assurance or guarantee as to the expected results of
that Transaction.
(ii) Assessment and Understanding. It is capable of assessing
the merits of and understanding (on its own behalf or through
independent professional advice), and understands and accepts,
the terms, conditions and risks of that Transaction. It is also
capable of assuming, and assumes, the risks of that Transaction.
(iii) Status of Parties. The other party is not acting as a
fiduciary for or an adviser to it in respect of that
Transaction."
(12) Amendment to Section 7 of the Agreement. Section 7 of the Agreement is
hereby amended by:
(i) adding the words "and the confirmation of the Rating
Agencies" immediately following the word "party" in the third
line thereof; and
(ii) adding the following sentence immediately following
the final sentence thereof:
"In addition, each transfer effected in accordance with
this Section shall be effective only if the Rating
Agency Condition is satisfied and each transfer effected
pursuant to Section 6(b)(ii) shall be effective only if
the Ratings Agencies receive prior notice of such
transfer."
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(13) Amendment to Section 9(b) of the Agreement. Section 9(b) of the
Agreement is amended by adding the following sentence immediately
following the end of the first sentence thereof:
"In addition, no amendment modification or waiver in
respect of this Agreement will be effective unless the
Rating Agency Condition is satisfied."
(14) Set-off. Notwithstanding any 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. The provisions for Set-off set
forth in Section 6(e) of the Agreement shall not apply for this
Transaction.
(15) Amendment to Section 6(e) of the Agreement. Section 6(e) of the
Agreement is amended by deleting the last sentence of the introductory
paragraph thereof.
(16) Regulation AB Compliance. Xxxxxx and Counterparty agree that the terms
of the Item 1115 Agreement dated as of September 28, 2006 (the
"Regulation AB Agreement"), among IndyMac Bank, F.S.B., IndyMac MBS,
Inc., IndyMac ABS, Inc. and Xxxxxx shall be incorporated by reference
into this Agreement so that Party B shall be an express third party
beneficiary of the Regulation AB Agreement. A copy of the Regulation AB
Agreement is attached hereto as Exhibit A.
(17) [RESERVED]
Please confirm your agreement to the terms of the foregoing Schedule by
signing below.
JPMORGAN CHASE BANK, N.A.
By: /s/ Xxxxxx Xxxx
----------------
Name: Xxxxxx Xxxx
Title: VP
DEUTSCHE BANK NATIONAL TRUST COMPANY,
NOT IN ITS INDIVIDUAL CAPACITY, BUT
SOLELY AS SWAP TRUSTEE FOR THE SWAP
TRUST FOR THE INDYMAC INDX MORTGAGE LOAN
TRUST 2006-AR29
By: /s/ Xxxxxx Xxxxx
------------------
Name: Xxxxxx Xxxxx
Title: Associate
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ANNEX A
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PARAGRAPH 13 TO
CREDIT SUPPORT ANNEX
to the Schedule to the
Master Agreement
dated as of September 28, 2006
between
JPMORGAN CHASE BANK, N.A. and DEUTSCHE BANK NATIONAL TRUST COMPANY
("Xxxxxx") not in its individual capacity, but solely
as Swap Trustee for the Swap Trust for
IndyMac INDX Mortgage Loan Trust 2006-AR29
("Counterparty")
Paragraph 13. Elections and Variables
(a) Security Interest for "Obligations". The term "Obligations" as used in
this Annex includes no additional obligations with respect to either party.
(b) Credit Support Obligations.
(i) Delivery Amount, Return Amount and Credit Support Amount.
(A) "Delivery Amount" has the meaning specified in Paragraph 3(a).
(B) "Return Amount" has the meaning specified in Paragraph 3(b).
(C) "Credit Support Amount" shall not have the meaning specified
in Paragraph 3(b) and, instead, will have the following
meaning:
"Credit Support Amount" means, for any Valuation Date, (i) the
Secured Party's Modified Exposure for that Valuation Date
minus (ii) the Pledgor's Threshold; provided, however, that
the Credit Support Amount will be deemed to be zero whenever
the calculation of Credit Support Amount yields a number less
than zero.
(ii) Eligible Collateral. The following items will qualify as "Eligible
Collateral":
------------ ---------------------------------------------------------- --------------- ---------------
Xxxxxx "Valuation
Percentage"
------------ ---------------------------------------------------------- --------------- ---------------
(A) USD Cash X 100%
------------ ---------------------------------------------------------- --------------- ---------------
(B) Negotiable debt obligations issued by the U.S. Treasury X 98%
Department having a remaining maturity of one year or
less from the Valuation Date
------------ ---------------------------------------------------------- --------------- ---------------
(C) Negotiable debt obligations issued by the U.S. Treasury X 86%
Department having a remaining maturity of more than one
year but less than ten years from the Valuation Date
------------ ---------------------------------------------------------- --------------- ---------------
(D) Negotiable debt obligations issued by the U.S. Treasury X 79.2%
Department having a remaining maturity of ten years or
more from the Valuation Date
------------ ---------------------------------------------------------- --------------- ---------------
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------------ ---------------------------------------------------------- --------------- ---------------
(E) Agency Securities having a remaining maturity of one X 97.6%
year or less from the Valuation Date
------------ ---------------------------------------------------------- --------------- ---------------
(F) Agency Securities having a remaining maturity of more X 85.1%
than one year but less than ten years from the Valuation
Date
------------ ---------------------------------------------------------- --------------- ---------------
(G) Agency Securities having a remaining maturity of ten X 74.8%
years or more from the Valuation Date
------------ ---------------------------------------------------------- --------------- ---------------
(H) USD denominated Commercial Paper rated A-1/P1 by S&P and X 99%
Moody's respectively, that (a) settles within DTC, (b)
is not issued by Xxxxxx or any of its Affiliates and (c)
has a remaining maturity of 30 days or less from the
Valuation Date
------------ ---------------------------------------------------------- --------------- ---------------
For purposes of the foregoing:
(a) "Agency Securities" means negotiable debt obligations which are fully
guaranteed as to both principal and interest by the Federal National
Mortgage Association, the Government National Mortgage Association or the
Federal Home Loan Mortgage Corporation, but excluding (i) interest only
and principal only securities and (ii) Collateralized Mortgage
Obligations, Real Estate Mortgage Investment Conduits and similar
derivative securities.
(b) "DTC" shall mean The Depository Trust & Clearing Corporation, or
its successor.
(c) "Moody's" shall mean Xxxxx'x Investors Service, Inc., or its
successor.
(d) "S&P" shall mean Standard & Poor's Ratings Group, or its
successor.
(e) Eligible Collateral of the type described in Paragraph
13(b)(ii)(H) may never constitute more than 20% of the total Value
of Posted Collateral.
(f) With respect to Posted Collateral consisting of Eligible
Collateral of the type described in Paragraph 13(b)(ii)(H), the
aggregate Value of such Posted Collateral issued by the same issuer
may never be greater than 33% of the aggregate Value of all Posted
Collateral consisting of Eligible Collateral of the type described
in Paragraph 13(b)(ii)(H).
(iii) Other Eligible Support. There shall be no "Other Eligible Support"
for purposes of this Annex, unless agreed in writing between the
parties.
(iv) Thresholds.
(A) "Independent Amount" means zero.
(B) "Threshold" shall not apply with respect to the Counterparty
and, with respect to Xxxxxx, shall mean the amounts determined
on the basis of the lower of the Credit Ratings set forth in
the following table, provided, however, that if (i) Xxxxxx has
no Credit Rating, or (ii) an Event of Default has occurred and
is continuing with respect to Xxxxxx, Morgan's Threshold shall
be U.S.$0:
11
CREDIT RATING THRESHOLD
(S&P /Xxxxx'x/Fitch) Xxxxxx
S&P: A-1 or above. Infinity
Moody's (long-term senior unsecured debt of Xxxxxx): A1 or
above.
Moody's (short-term senior unsecured debt of Xxxxxx): P-1 or
above.
S&P: Below A-1. US$0
Moody's (long-term senior unsecured debt of Xxxxxx): Below A1
or A1 on negative watch.
Moody's (short-term senior unsecured debt of Xxxxxx): Below P-1
or P-1 on negative watch.
As used herein:
"Credit Rating" means, with respect to (a) S&P, the rating assigned by S&P
to the short-term senior unsecured debt of Xxxxxx, and (b) Moody's, the
rating assigned by Moody's to the long-term senior unsecured debt of
Xxxxxx or to the short-term senior unsecured debt of Xxxxxx, as
applicable.
(C) "Minimum Transfer Amount", with respect to a party on any Valuation
Date, means U.S. $100,000.
(D) Rounding. The Delivery Amount, rounded up, and with respect to the
Return Amount, rounded down to the nearest integral multiple of
$1,000, respectively.
(c) Valuation and Timing.
(i) "Valuation Agent" means Xxxxxx.
(ii) "Valuation Date" means weekly on the last Local Business Day of each
week or more frequently if agreed in writing by the parties.
(iii) "Valuation Time" means the close of business in the city of the
Valuation Agent on the Valuation Date or date of calculation, as
applicable.
(iv) "Notification Time" means 12:00 p.m., New York time, on a Local
Business Day.
(v) Xxxx-to-market Procedures. This Agreement shall be marked-to-market
no less than once per week and additional collateral should be
posted if necessary. For as long as the Xxxxxx'x rating is A-2/BBB+
or higher, the xxxx-to-market valuations can be based upon internal
marks. If Xxxxxx'x rating is BBB or lower, Xxxxxx shall get an
external verification of its xxxx on a monthly basis. The
verification of the xxxx can be obtained by an independent third
party (i.e. trustee, administrator, manager), and cannot be verified
by the same entity more than four times in any 12-month period. In
addition, the external xxxx-to-market valuations should reflect the
higher of two bids from counterparties that would be eligible and
willing to provide the swap in the absence of the current provider.
The collateral requirement should be based on the greater of the
internal and external marks, and any deficiencies in collateral
value must be cured within three days. Xxxxxx shall submit to
Standard & Poor's the internal xxxx-to-market calculations. Once
Xxxxxx has verified the xxxx-to-market valuation, it shall submit to
Standard & Poor's the two bids provided by external parties.
(d) Conditions Precedent. Not applicable.
(e) Substitution.
12
(i) "Substitution Date" has the meaning specified in Paragraph 4(d)(ii).
(ii) Consent. Inapplicable.
(f) Dispute Resolution.
(i) "Resolution Time" means 1:00 p.m., New York time, on the Local
Business Day following the date on which the notice is given that
gives rise to a dispute under Paragraph 5.
(ii) Value. For the purposes of Paragraphs 5(i)(C) and 5(ii), the Value
of Posted Credit Support other than Cash will be calculated as
follows:
(A) with respect to any Eligible Collateral except Cash, the
sum of (I) (x) the mean of the high bid and low asked prices quoted
on such date by any principal market maker for such Eligible
Collateral chosen by the Disputing Party, or (y) if no quotations
are available from a principal market maker for such date, the mean
of such high bid and low asked prices as of the first day prior to
such date on which such quotations were available, plus (II) the
accrued interest on such Eligible Collateral (except to the extent
Transferred to a party pursuant to any applicable provision of this
Agreement or included in the applicable price referred to in (I) of
this clause (A)) as of such date; multiplied by the applicable
Valuation Percentage.
(iii) Alternative. The provisions of Paragraph 5 will apply.
(g) Holding and Using Posted Collateral.
(i) Eligibility to Hold Posted Collateral; Custodians. Counterparty and
its Custodian will be entitled to hold Posted Collateral pursuant to
Paragraph 6(b); provided that the following conditions applicable to
it are satisfied:
(1) Counterparty is not a Defaulting Party and
(2) Posted Collateral may be held only in the following
jurisdictions: New York State.
Initially, the Custodian for Counterparty is: None
(ii) Use of Posted Collateral. The provisions of Paragraph 6(c)(i) will
not apply to Counterparty but the provisions of Paragraph 6(c)(ii)
will apply to the Counterparty.
(h) Distributions and Interest Amount.
(i) Interest Rate. "Interest Rate" will be the annualized rate of return
actually achieved on the Posted Collateral during the related
posting period.
(ii) Transfer of Interest Amount. The Transfer of the Interest Amount
will be made monthly on the second Local Business Day of each
calendar month.
(iii) Alternative to Interest Amount. The provisions of Paragraph 6(d)(ii)
will apply.
(i) Additional Representation(s). Not Applicable.
(j) Other Eligible Support and Other Posted Support.
(i) "Value" with respect to Other Eligible Support and Other Posted
Support means: Not Applicable.
(ii) "Transfer" with respect to Other Eligible Support and Other Posted
Support means: Not Applicable
(k) Demands and Notices.
13
All demands, specifications and notices under this Annex will be made pursuant
to the Notices Section of this Agreement, unless otherwise specified here:
Counterparty:
Deutsche Bank National Trust Company
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000-0000
Attention: Mortgage Administration [IN06AL], Series 2006-AR29
Xxxxxx:
[TO COME]
(l) Addresses for Transfers.
Counterparty: as set forth in notices to Xxxxxx from time to time
Xxxxxx:
[TO COME]
(m) Other Provisions:
(i) Modification to Paragraph 1: The following subparagraph (b) is
substituted for subparagraph (b) of this Annex:
(b) Secured Party and Pledgor. All references in this Annex to the
"Secured Party" will be to Counterparty and all corresponding
references to the "Pledgor" will be to Xxxxxx.
(ii) Modification to Paragraph 2: The following Paragraph 2 is
substituted for Paragraph 2 of this Annex:
Paragraph 2. Security Interest. The Pledgor hereby pledges to the
Secured Party, as security for its Obligations, and grants to the
Secured Party a first priority continuing security interest in, lien
on and right of Set-Off against all Posted Collateral Transferred to
or received by the Secured Party hereunder. Upon the Transfer by the
Secured Party to the Pledgor of Posted Collateral, the security
interest and lien granted hereunder on that Posted Collateral will
be released immediately and, to the extent possible, without any
further action by either party.
(iii) Modification to Paragraph 9: The following first clause of
Paragraph 9 is substituted for the first clause of Paragraph 9 of this
Annex:
Paragraph 9. Representations. The Pledgor represents to the Secured
Party (which representations will be deemed to be repeated as of
each date on which it Transfers Eligible Collateral) that:
(iv) Modifications to Paragraph 12: The following definitions of
"Pledgor" and "Secured Party" are substituted for the definitions of those
terms contained in Paragraph 12 of this Annex:
"Pledgor" means Xxxxxx, when that party (i) receives a demand for or
is required to Transfer Eligible Credit Support under Paragraph 3(a)
or (ii) has Transferred Eligible Credit Support under Paragraph
3(a).
"Secured Party" means Counterparty, when that party (i) makes a
demand for or is entitled to receive Eligible Credit Support under
Paragraph 3(a) or (ii) holds or is deemed to hold Posted Credit
Support.
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(v) Addition to Paragraph 12: The following definitions of "Modified
Exposure" shall be added immediately after the definition of the term
"Minimum Transfer Amount" and immediately prior to the definition of the
term "Notification Time" in Paragraph 12 of this Annex:
"Modified Exposure" means, for any Valuation Date, an amount equal
to the sum of (i) the greater of USD 0 and the Secured Party's
Exposure for that Valuation Date and (ii) the sum of the Volatility
Buffers determined by the Valuation Agent with respect to each
Transaction subject to the Agreement. As used herein:
"Volatility Buffer" means, with respect to a Transaction, an
amount equal to the product of (a) the Factor applicable to
the Transaction and (b) the Notional Amount of the
Transaction.
"Factor" means, with respect to a Transaction, a percentage
dependent on Xxxxxx'x Counterparty Rating by S&P or Moody's,
as applicable, and the original maturity of the Transaction
and determined by the Valuation Agent by reference to the
following table:
------------------------- ---------------------- --------------------- -------------------
Counterparty Rating Maturities up to 5 Maturities up to 10 Maturities up to
(S&P/Moody's) years (%) years (%) 30 years (%)
------------------------- ---------------------- --------------------- -------------------
A-2/P-2 3.25 4.00 4.75
------------------------- ---------------------- --------------------- -------------------
A-3/P-3 4.00 5.00 6.25
------------------------- ---------------------- --------------------- -------------------
BB+ or lower/Ba1 or 4.50 5.75 7.50
lower
------------------------- ---------------------- --------------------- -------------------
(vi) Modification to Paragraph 12: Clause "(B)" of the definition of
"Value" will be substituted to read in its entirety as follows:
"(B) a security, the bid price obtained by the Valuation Agent
from one of the Pricing Sources multiplied by the applicable
Valuation Percentage, if any;"
(vii) Addition to Paragraph 12: The following definition of "Pricing
Sources" shall be added immediately after the definition of the term
"Posted Credit Support" and immediately prior to the definition of the
term "Recalculation Date" in Paragraph 12 of this Annex:
"Pricing Sources" means the sources of financial information
commonly known as Bloomberg, Bridge Information Services, Data
Resources Inc., Interactive Data Services, International Securities
Market Association, Xxxxxxx Xxxxx Securities Pricing Service, Xxxxxx
Data Corporation, Reuters, Wood Gundy, Trepp Pricing, XX Xxxxx, S&P
and Telerate.
15
Accepted and Agreed:
JPMORGAN CHASE BANK, N. A.
By: /s/ Xxxxxx Xxxx
----------------
Name: Xxxxxx Xxxx
Title: VP
DEUTSCHE BANK NATIONAL TRUST COMPANY not in its individual capacity, but solely
as Swap Trustee for the Swap Trust for the IndyMac INDX Mortgage Loan Trust
2006-AR29
By: /s/ Xxxxxx Xxxxx
----------------
Name: Xxxxxx Xxxxx
Title: Associate
16
EXHIBIT A
ITEM 1115 AGREEMENT DATED AS OF SEPTEMBER 28, 2006 (THE "REGULATION AB
AGREEMENT"), AMONG INDYMAC BANK, F.S.B., INDYMAC MBS, INC., INDYMAC ABS, INC.
AND XXXXXX
17
