EXHIBIT 99.3
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The Schedule to the ISDA Master Agreement
(Multicurrency-Cross Border)
SCHEDULE
to the
Master Agreement
dated as of November 28, 2006
between
Xxxxxx Brothers Special Financing Inc. ("Party A"),
and
DEUTSCHE BANK NATIONAL TRUST COMPANY, not in its individual or corporate
capacity but solely as Supplemental Interest Trustee for Residential Asset
Securitization Trust 2006-A15 ("Party B")
All terms used herein and not otherwise defined are given their meaning in the
Pooling and Servicing Agreement dated as of November 1, 2006 among IndyMac MBS,
Inc. as depositor, IndyMac Bank F.S.B., as a seller and master servicer, and
Deutsche Bank National Trust Company, as trustee and supplemental interest
trustee (the "Pooling and Servicing Agreement").
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 not apply to Party A or Party B for any
purpose.
(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
Section 5(a)(i) is hereby amended by replacing the word "third" with
the word "first"; provided, further, 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
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.
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(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 in the country in which Party A is organized.
(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, (i) 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 (ii) Section 5(a)(vii)(8) is hereby amended by
deleting the words "to (7) (inclusive)" and inserting lieu thereof
", (3), (4) as amended, (5) and (6) as amended".
(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 transaction (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.
"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 Party B so as to become legally binding and
no Market Quotation
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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).
Part 2: Tax Representations
(a) Tax Representations.
(i) Payer Representations. For the purpose of Section 3(e) of this
Agreement:
(A) Party A makes the following representation(s):
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: the
accuracy of any representations made by the other party
pursuant to Section 3(f) of this Agreement; (ii) the
satisfaction of the agreement 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 (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)
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and the other party does not deliver a form or document under
Section 4(a)(iii) by reason of material prejudice to its legal
or commercial position.
(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):
It is a corporation duly organized and validly existing under
the laws of the State of Delaware.
(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.
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Part 3: Agreement to Deliver Documents
(a) Tax forms, documents or certificates to be delivered are:
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Party required to deliver document Form/Document/Certificate Date by which to be delivered
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Party A and Party B Any document required or reasonably Promptly after reasonable demand by
requested to allow the other party to either party.
make payments under this Agreement
without any deduction or withholding
for or on the account of any Tax or
with such deduction or withholding at
a reduced rate.
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(b) Other Documents to be delivered are:
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Party required to deliver Form/Document/Certificate Date by which to be Covered by Section 3(d)
document delivered representation
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Party A and Party B Any documents required or reasonably Upon the execution and Yes
requested by the receiving party to delivery of this
evidence the authority of the Agreement
delivering party or its Credit Support
Provider, if any, for it to execute and
deliver this 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 this Agreement, this Confirmation
and any Credit Support Document, as the
case may be.
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Party A and Party B A certificate of an authorized officer of Upon the execution and Yes
the party, as to the incumbency and delivery of this
authority of the respective officers of Agreement
the party signing the Agreement, this
Confirmation, and any relevant Credit
Support Document, as the case may be.
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Party A Annual Report of Party A' s Credit Annually, after becoming Yes
Support Provider containing consolidated publicly available
financial statements certified by
independent certified public accountants
and prepared in accordance with generally
accepted accounting principles in the
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country in which Party A is organized.
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Party A Quarterly Financial Statements of Party Quarterly, after Yes
A's Credit Support Provider containing becoming publicly
unaudited, consolidated financial available
statements of Party A's fiscal quarter
prepared in accordance with generally
accepted accounting principles in the
country in which Party A is organized.
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Party B Executed copy of the Pooling and Upon execution Yes
Servicing Agreement.
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Party B Monthly Report At such time as each Yes
Monthly Report is
delivered to the Trustee
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Party B Copy of any notice delivered under the Upon availability Yes
Pooling and Servicing Agreement.
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Party A An opinion of counsel to Party A and Upon the execution and No
Party A's Guarantor substantially in the delivery of this
form of Exhibit C to this Schedule. Agreement
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Party A A guarantee of Xxxxxx Brothers Holdings Upon the execution and No
Inc. substantially in the form of Exhibit delivery of this
B to this Schedule. Agreement
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Party B An opinion of counsel to Party B Upon the execution and No
substantially in the form of Exhibit D to delivery of this
this Schedule. Agreement
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Part 4: Miscellaneous
(a) Addresses for Notices. For the purposes of Section 12(a) of this
Agreement:
(1) Address for notices or communications to Party A shall be sent to:-
Address: Xxxxxx Brothers Special Financing Inc.
c/x Xxxxxx Brothers Inc.
Corporate Advisory Division
Transaction Management Group
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Documentation Manager
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
(For all purposes)
Party B:
(2) Address for notices or communications to Party B:-
Address: Deutsche Bank National Trust Company
0000 X. Xx. Xxxxxx Xxxxx
Xxxxx Xxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Trust Administration IN0615
(b) Process Agent. For the purposes of Section 13(c) of this Agreement:
Party A appoints as its Process Agent: Not Applicable.
Party B appoints as its Process Agent: Not Applicable.
(c) Offices. The provisions of Section 10(a) will not apply to this Agreement.
(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; provided however, if
an Event of Default occurs and is continuing with respect to Party A, then
the parties shall be entitled to appoint a financial institution mutually
acceptable to both parties which would qualify as a Reference Market-maker
to act as Calculation Agent, until the earlier of (i) a designation under
Section 6(c)(ii), or (ii) the discontinuance of such Event of Default with
respect to Party A.
(f) Credit Support Document. Credit Support Document means
Party A: The Credit Support Annex, and the guarantee in support
of Party A's obligations under this Agreement
substantially in the form attached hereto as Exhibit B
to this Schedule.
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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. Subparagraph (ii) of Section 2(c) of this Agreement
will apply to all Transactions.
(j) "Affiliate" will have the meaning specified in Section 14 of this
Agreement, 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 provided further that with respect to Party A, such
definition shall be understood to exclude Xxxxxx Brothers Derivative
Products Inc. and Xxxxxx Brothers Financial Products Inc.
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.
(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.
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(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) Non-reliance. (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 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
subject to Section 6(n) of this Agreement 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 1 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 Representations and Warranties of Party B. Party B represents
to Party A in accordance with Section 3 of the Agreement (which
representations will be deemed to be repeated by Party B at all times
until the termination of this Agreement) that:
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(i) Constitutional Documents. Party B is in compliance, in all material
respects, with its constitutional documents (including, but not
limited to, the Pooling and Servicing Agreement, as amended from
time-to-time, and any and all resolutions, investment policies,
guidelines, procedures or restrictions), and each Transaction
contemplated hereunder is and will be an authorized and permitted
transaction thereunder and an Authorizing Resolution is in full
force and effect.
(ii) Compliance with Laws. Party B is in compliance, in all respects,
with all applicable laws, rules, regulations, interpretations,
guidelines, procedures, and policies of applicable regulatory
authorities affecting Party B, this Agreement, the Transactions, or
the performance of Party B's obligations hereunder.
(d) Third-Party Beneficiary. Party B agrees with Party A that Party A shall be
an express third-party beneficiary of the Pooling and Servicing Agreement.
(e) Additional Termination Events. The following Additional Termination Events
will apply:
(i) First Rating Trigger Collateral. If (A) it is not the case that a
Moody's Second Trigger Ratings Event has occurred and been
continuing for 30 or more Local Business Days and (B) Party A has
failed to comply with or perform any obligation to be complied with
or performed by Party A in accordance with the Credit Support Annex,
then an Additional Termination Event shall have occurred with
respect to Party A and Party A shall be the sole Affected Party with
respect to such Additional Termination Event.
(ii) 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), then an Additional Termination Event shall have
occurred with respect to Party A and Party A shall be the sole
Affected Party with respect to such Additional Termination Event.
(iii) Supplemental Pooling and Servicing Agreement Without Party A's Prior
Written Consent. If Party B enters into an amendment and or
supplement to the Pooling and Servicing Agreement or other
modification to the Pooling and Servicing Agreement that could
reasonably be expected to have a material adverse effect on Party A
without the prior written consent (such consent not to be
unreasonably withheld) of Party A, then an Additional Termination
Event shall have occurred with respect to Party B and Party B shall
be the sole Affected Party with respect to such Additional
Termination Event. Party B agrees with Party A that Party A shall be
an express third-party beneficiary of the Pooling and Servicing
Agreement.
(iv) [Reserved]
(v) Optional Termination of Securitization. An Additional Termination
Event shall occur upon the notice to Certificateholders of an
Optional Termination becoming unrescindable in accordance with the
Pooling and Servicing Agreement. Party B shall be the sole Affected
Party with respect to such Additional Termination Event; provided,
however, that notwithstanding anything to the contrary in Section
6(b)(iv), only Party B may designate an Early Termination Date in
respect of this Additional Termination Event.
(f) Required Ratings Downgrade Event. In the event that no Relevant Entity has
credit ratings at least equal to the Required Ratings Threshold (such
event, a "Required Ratings Downgrade Event"), then 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 from an Eligible Guarantor.
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(g) Regulation AB Compliance. Party A and Party B hereby agree that the terms
of the Item 1115 Agreement dated as of May 24, 2006 (the "Regulation AB
Agreement"), between IndyMac Bank, F.S.B., IndyMac MBS, Inc., IndyMac ABS,
Inc. and Party A 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.
(h) Transfers. Section 7 is hereby amended to read in its entirety as follows:
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"Subject to Section 6(b)(ii), Part 5(d), the Item 1115 Agreement, and Part
5(e), 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 without the prior written consent of the other party."
(i) Non-Recourse. Party A acknowledges and agree 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, 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.
This provision will survive the termination of this Agreement.
(j) 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 Cap Rating Agency
has been given prior written notice of such designation or transfer.
(k) 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.".
(l) 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
Agencies has been provided prior written notice of the same.
(m) Proceedings. No Relevant Entity shall institute against, or cause any
other person to institute against, any other person in instituting against
Party B, or the Supplemental Trust formed pursuant to the Pooling and
Servicing Agreement, 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. Party A and Party B
agree to the following: (a) Deutsche Bank National Trust Company ("DBNTC")
is entering into this Agreement not in its individual or corporate
capacity, but solely in its capacity as Supplemental Interest Trustee for
Residential Asset Securitization Trust 2006-A15; (b) in no case shall
DBNTC (or any person acting as successor Supplemental Interest Trustee for
Residential Asset Securitization Trust 2006- A15) be personally liable for
or on account of any of the statements, representations, warranties,
covenants or obligations stated to be those of Party B under the terms of
this Agreement, all such liability, if any, being expressly waived by
Party A and any person claiming by, through or under Party A; and (c)
recourse against Party B shall be limited to the assets available under
the Pooling and Servicing Agreement. This Part 5(n) shall survive the
termination of this Agreement.
12
(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 Party B has appointed the
Supplemental Interest Trustee as its 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 are to be made or otherwise) it is not possible
for simultaneous payments to be made on any date on which both parties are
required to make payments hereunder, either Party may at its option and in
its sole discretion notify the other Party that payments on that date are
to be made in escrow. In this case deposit of the payment due earlier on
that date shall be made by 2:00 pm (local time at the place for the
earlier payment) on that date with an escrow agent selected by the
notifying party, accompanied by irrevocable payment instructions (i) to
release the deposited payment to the intended recipient upon receipt by
the escrow agent of the required deposit of any corresponding payment
payable by the other party on the same date accompanied by irrevocable
payment instructions to the same effect or (ii) if the required deposit of
the corresponding payment is not made on that same date, to return the
payment deposited to the party that paid it into escrow. The party that
elects to have payments made in escrow shall pay all costs of the escrow
arrangements.
(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 and waives any further
notice 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 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) 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. Party B
represents to Party A on the date on which Party B enters into this
Agreement that it is entering into the Agreement and the Transaction in
its capacity as Supplemental Interest Trustee.
(v) [Reserved]
(w) [Reserved]
13
(x) [Reserved]
(y) Limitation on Events of Default. Notwithstanding the provisions of
Sections 5 and 6, if at any time and so long as Party B has satisfied in
full all its payment obligations under Section 2(a)(i) and has at the time
no future payment obligations, whether absolute or contingent, under such
Section, then unless Party A is required pursuant to appropriate
proceedings to return to Party B or otherwise returns to Party B upon
demand of Party B any portion of any such payment, (a) the occurrence of
an event described in Section 5(a) with respect to Party B shall not
constitute an Event of Default or Potential Event of Default with respect
to Party B as Defaulting Party and (b) Party A shall be entitled to
designate an Early Termination Date pursuant to Section 6 only as a result
of the occurrence of a Termination Event set forth in either Section
5(b)(i) or 5(b)(ii) with respect to Party A as the Affected Party, or
Section 5(b)(iii) with respect to Party A as the Burdened Party. For
purposes of the Transaction to which this Agreement relates, Party B's
only obligation under Section 2(a)(i) is to pay the Fixed Amount on the
Fixed Amount Payer Payment Date.
(z) [Reserved]
(aa) 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, the Fitch 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 (e) 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.
"Cap Rating Agencies" means, with respect to any date of determination,
each of S&P, Fitch and Moody's, to the extent that each such rating agency
is then providing a rating for any of the Certificates or any notes backed
by the Certificates ("Notes").
"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 provided in advance
to S&P and Fitch, 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 at least
equal to the Approved Ratings Threshold or (B) has credit ratings at least
equal to the Required Ratings Threshold, provided, for the avoidance of
doubt, that an Eligible Guarantee of an Eligible Guarantor with credit
ratings below the Approved Ratings Threshold will not cause a Collateral
Event (as defined in the Credit Support Annex) not to occur or continue
14
"Eligible Replacement" means an entity (A) (i) that has credit ratings at
least equal to the Approved Ratings Threshold, (ii) has credit ratings at
least equal to the Required Ratings Threshold, provided, for the avoidance
of doubt, that an Eligible Guarantee of an Eligible Guarantor with credit
ratings below the Approved Ratings Threshold will not cause a Collateral
Event (as defined in the Credit Support Annex) not to occur or continue,
or (iii) 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 provided by an
Eligible Guarantor and (B) that has executed an Item 1115 Agreement with
the Depositor.
"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.
"Fitch" means Fitch Ratings Ltd., or any successor thereto.
"Fitch Approved 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 from Fitch of "A" and a
short-term unsecured and unsubordinated debt rating from Fitch of "F1".
"Fitch 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 from Fitch of "BBB-".
"Moody's" means Xxxxx'x Investors Service, Inc., or any successor thereto.
"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
Rating 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 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 that is a recognized dealer
in interest rate swaps organized under the laws of the United States of
America
15
or a jurisdiction located in the United States of America (or another
jurisdiction reasonably acceptable to Party B), (b) 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), (c) an Event of Default
or Termination Event would not occur as a result of such transfer, (d)
Party B has consented in writing to the transfer, such consent not to be
unreasonably withheld, (e) the transfer would not give rise to a taxable
event or any other adverse Tax consequences to Party B or its interest
holders, as determined by Party B in its sole discretion, (f) 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, (g) 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; (h) 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); (i) each Cap
Rating Agency has been given prior written notice of such transfer; and
(j) 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 Cap 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 Cap Rating Agencies
and receive from each such Cap 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.
"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 Transactions, as determined by Party
B in its sole discretion, acting in a commercially reasonable manner.
"Required Ratings Downgrade Event" shall have the meaning assigned thereto
in Part 5(d).
"Required Ratings Threshold" means each of the S&P Required Ratings
Threshold, the Fitch 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
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 from S&P of "BBB+".
16
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 in its individual or
corporate capacity but solely as
Supplemental Interest Trustee for
Residential Asset Securitization
XXXXXX BROTHERS SPECIAL FINANCING INC. Trust 2006-A15
("Party A") ("Party B")
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxx Xxxxxxxx
--------------------------------- ---------------------------------
Name: Xxxxxxx X. Xxxxxx Name: Xxx Xxxxxxxx
Title: Authorized Signatory Title: Authorized Signer
17
EXHIBIT A
Regulation AB Agreement
XXXXXX BROTHERS
EXHIBIT B to Schedule
GUARANTEE OF XXXXXX BROTHERS HOLDINGS INC.
XXXXXX BROTHERS SPECIAL FINANCING INC. ("Party A") and DEUTSCHE BANK NATIONAL
TRUST COMPANY, not in its individual or corporate capacity but solely as
Supplemental Interest Trustee for Residential Asset Securitization Trust
2006-A15 ("Party B") have entered into a Master Agreement dated as of November
28, 2006, as amended from time to time (the "Master Agreement"), pursuant to
which Party A and Party B have entered and/or anticipate entering into one or
more transactions (each a "Transaction"), the Confirmation of each of which
supplements, forms part of, and will be read and construed as one with, the
Master Agreement (collectively referred to as the "Agreement"). This Guarantee
is a Credit Support Document as contemplated in the Agreement. For value
received, and in consideration of the financial accommodation accorded to Party
A by Party B under the Agreement, XXXXXX BROTHERS HOLDINGS INC., a corporation
organized and existing under the laws of the State of Delaware ("Guarantor"),
hereby agrees to the following:
(a) Guarantor hereby unconditionally guarantees to Party B the due and
punctual payment of all amounts payable by Party A in connection with each
Transaction when and as Party A's obligations thereunder shall become due and
payable in accordance with the terms of the Agreement (whether at maturity, by
acceleration or otherwise). Guarantor hereby agrees, upon written demand by
Party B, to pay or cause to be paid any such amounts punctually when and as the
same shall become due and payable.
(b) Guarantor hereby agrees that its obligations under this Guarantee
constitute a guarantee of payment when due and not of collection.
(c) Guarantor hereby agrees that its obligations under this Guarantee
shall be unconditional, irrespective of the validity, regularity or
enforceability of the Agreement against Party A (other than as a result of the
unenforceability thereof against Party B), the absence of any action to enforce
Party A's obligations under the Agreement, any waiver or consent by Party B with
respect to any provisions thereof, the entry by Party A and Party B into any
amendments to the Agreement, additional Transactions under the Agreement or any
other circumstance which might otherwise constitute a legal or equitable
discharge or defense of a guarantor (excluding the defense of payment or statute
of limitations, neither of which is waived) provided, however, that Guarantor
shall be entitled to exercise any right that Party A could have exercised under
the Agreement to cure any default in respect of its obligations under the
Agreement or to setoff, counterclaim or withhold payment in respect of any Event
of Default or Potential Event of Default in respect of Party B or any Affiliate,
but only to the extent such right is provided to Party A under the Agreement.
The Guarantor acknowledges that Party A and Party B may from time to time enter
into one or more Transactions pursuant to the Agreement and agrees that the
obligations of the Guarantor under this Guarantee will upon the execution of any
such Transaction by Party A and Party B extend to all such Transactions without
the taking of further action by the Guarantor.
(d) This Guarantee shall remain in full force and effect until the first
to occur of (i) receipt by Party B of a written notice of termination from
Guarantor or (ii) none of the obligations of Party A remain outstanding.
Termination of this Guarantee shall not affect Guarantor's liability hereunder
as to obligations incurred or arising out of Transactions entered into prior to
the termination hereof.
(e) Guarantor further agrees that this Guarantee shall continue to be
effective or be reinstated, as the case may be, if at any time, payment, or any
part thereof, of any obligation or interest thereon is rescinded or must
otherwise be restored by Party B upon an Event of Default as set forth in
Section 5(a)(vii) of the Master Agreement affecting Party A or Guarantor.
(f) Guarantor hereby waives (i) promptness, diligence, presentment, demand
of payment, protest, order and, except as set forth in paragraph (a) hereof,
notice of any kind in connection with the Agreement and this Guarantee, or (ii)
any requirement that Party B exhaust any right to take any action against Party
A or any other person prior to or contemporaneously with proceeding to exercise
any right against Guarantor under this Guarantee.
1
XXXXXX BROTHERS HOLDINGS INC.
000 XXXXXXX XXXXXX, XXX XXXX, XXX XXXX 00000
XXXXXX BROTHERS
This Guarantee shall be governed by and construed in accordance with the
laws of the State of New York without regard to conflicts of laws principles.
All capitalized terms not defined in this Guarantee, but defined in the
Agreement, shall have the meanings assigned thereto in the Agreement.
IN WITNESS WHEREOF, Guarantor has caused this Guarantee to be executed by
its duly authorized officer as of the date of the Agreement.
XXXXXX BROTHERS HOLDINGS INC.
By:
-------------------------
Name:
Title:
Date:
2
XXXXXX BROTHERS HOLDINGS INC.
000 XXXXXXX XXXXXX, XXX XXXX, XXX XXXX 00000
EXHIBIT C to Schedule
[Form of Opinion of Counsel for
Xxxxxx Brothers Special Financing Inc. and
Xxxxxx Brothers Holdings Inc.]
November 28, 2006
Deutsche Bank National Trust Company
not in its individual or corporate capacity
but solely as Supplemental Interest Trustee
for Residential Asset Securitization Trust 2006-A15
0000 X. Xx. Xxxxxx Xxxxx
Xxxxx Xxx, XX 00000
Ladies and Gentlemen:
I have acted as counsel to Xxxxxx Brothers Special Financing Inc., a
Delaware corporation ("Party A") and Xxxxxx Brothers Holdings Inc., a Delaware
corporation ("Guarantor"), and am familiar with matters pertaining to the
execution and delivery of the Master Agreement (the "Master Agreement") dated as
of November 28, 2006 between Party A and Deutsche Bank National Trust Company,
not in its individual or corporate capacity but solely as Supplemental Interest
Trustee for Residential Asset Securitization Trust 2006-A15 and the guarantee of
Guarantor (the "Guarantee") delivered in connection with the Master Agreement.
In connection with this opinion, I have examined, or have had examined on
my behalf, an executed copy of the Master Agreement and the Guarantee,
certificates and statements of public officials and officers of Party A and
Guarantor and such other agreements, instruments, documents and records as I
have deemed necessary or appropriate for the purposes of this opinion.
Except as expressly set forth herein, no independent investigation
(including, without limitation, conducting any review, search or investigation
of any public files, records or dockets) has been undertaken to determine the
existence or absence of the facts that are material to my opinions, and no
inference as to my knowledge concerning such facts should be made.
When used herein the phrase "to my knowledge" means to my actual knowledge
without independent investigation.
References in this letter to "Applicable Laws" are to those laws, rules
and regulations of the State of New York which, in my experience, are normally
applicable to transactions of the type contemplated by the Master Agreement and
the Guarantee. References in this letter to "Governmental Authorities" are to
executive, legislative, judicial, administrative or regulatory bodies of the
State of New York. References in this letter to "Governmental Approval" are to
any consent, approval, license, authorization or validation of, or filing,
recording or registration with, any Governmental Authority pursuant to
Applicable Laws.
Based on the foregoing but subject to the assumptions, exceptions,
qualifications and limitations hereinafter expressed, I am of the opinion that:
(i) Each of Party A and Guarantor is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of
Delaware.
(ii) The execution, delivery and performance of the Master Agreement in
the case of Party A, and the Guarantee, in the case of Guarantor,
are within its corporate power, have been duly authorized by all
corporate action and do not conflict with any provision of its
certificate of incorporation or by-laws.
(iii) The Master Agreement, in the case of Party A, and the Guarantee, in
the case of Guarantor, have been duly executed and delivered and
each constitutes a legal, valid and binding obligation, enforceable
against it in accordance with its respective terms.
(iv) To the best of my knowledge, no Governmental Approval is required in
connection with the execution, delivery and performance of the
Master Agreement in the case of Party A, or the Guarantee, in the
case of Guarantor, except those that have been obtained and, to my
knowledge, are in effect.
The foregoing opinions are subject to the following assumptions,
exceptions, qualifications and limitations:
A. My opinion in paragraph 3 above is subject to: (i) bankruptcy,
insolvency, reorganization, receivership, moratorium or similar laws affecting
creditors' rights generally (including, without limitation, the effect of
statutory or other laws regarding fraudulent or other similar transfers or
conveyances); (ii) general principles of equity, regardless of whether
enforceability is considered in a proceeding in equity or at law; (iii) laws
and/or considerations of public policy that may limit the enforceability of
provisions (a) the termination and close-out methodology under the Master
Agreement, including but not limited to Section 6(e), (b) regarding
indemnification and contribution rights and obligations, (c) regarding the
waiver or limitation of rights to trial by jury, oral amendments to written
agreements or rights of setoff, (d) relating to submission to jurisdiction,
venue or service of process, and (e) purporting to prohibit or restrict, or
require the consent of the "account debtor" (as defined in Section 9-102 of the
Uniform Commercial Code as in effect in the State of New York (the "NYUCC" ))
for, the creation, perfection or enforcement of a security interest in
"accounts" or "general intangibles" (in each case, as defined in Section 9-102
of the NYUCC).
B. I am a member of the Bar of the State of New York and render no opinion
on the laws of any jurisdiction other than the laws of the State of New York and
the General Corporation Law of the State of Delaware. Except as described, I
have not examined, or had examined on my behalf, and I do not express any
opinion with respect to, Delaware law.
C. My opinions are limited to the present laws and to the facts as they
presently exist, and no opinion is to be inferred or implied beyond the matters
expressly so stated. I assume no obligation to revise or supplement this opinion
should the present laws of the jurisdictions referred to in paragraph B above be
changed by legislative action, judicial decision or otherwise.
D. This letter is rendered solely to you solely for your benefit in
connection with the Master Agreement and the Guarantee and the transactions
related thereto and may not be relied upon by any other person, entity or agency
or by you in any other context or for any other purpose. This letter may not be
circulated, used or quoted in whole or in part, nor may copies thereof be
furnished or delivered to any other person, without the prior written consent of
Xxxxxx Brothers Holdings Inc., except that you may furnish copies hereof (i) to
your independent auditors and attorneys, (ii) to any United States, state or
local authority having jurisdiction over you or over Party A or Guarantor, (iii)
pursuant to the order of any legal process of any court of competent
jurisdiction or any governmental agency, and (iv) in connection with any legal
action arising out of the Master Agreement or the Guarantee.
E. I have assumed with your permission (i) the genuineness of all
signatures by each party other than Party A or Guarantor, (ii) the authenticity
of documents submitted to me as originals and the conformity to authentic
original documents of all documents submitted to me as copies, (iii) the
accuracy of the matters set forth in the documents, agreements and instruments I
reviewed, (iv) that each party other than Party A and Guarantor is duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization, (v) the due execution and delivery, pursuant to
due authorization, of the Master Agreement by each party other than Party A, and
(vi) that the Master Agreement is the legal, valid, binding and enforceable
obligation of each party other than Party A, enforceable against each such party
in accordance with its terms.
F. My opinion in paragraph 3 is subject to the qualification that certain
provisions contained in the Agreement and the Guarantee may not be enforceable,
but such unenforceability will not render the Agreement or
the Guarantee invalid as a whole or substantially interfere with the practical
realization of the principal benefits provided thereby.
The foregoing opinions are given on the express understanding that the
undersigned is an officer of Xxxxxx Brothers Inc. and shall in no event incur
any personal liability in connection with said opinions.
Very truly yours,
EXHIBIT D to Schedule
[Form of Opinion of Counsel for
Party B]
