Contract
Exhibit
10.3
Item
1115
Agreement dated as of May 30, 2006 (this “Agreement”),
between IndyMac Bank, F.S.B.., a federal savings bank (“IndyMac
Bank”), IndyMac MBS, Inc., a Delaware corporation (“IndyMac
MBS”), IndyMac ABS, Inc., a Delaware corporation (“IndyMac
ABS”), and Deutsche Bank AG, New York Branch, as counterparty (the “Counterparty”).
RECITALS
WHEREAS,
IndyMac MBS and IndyMac ABS each have filed Registration Statements on Form
S-3
(each, a “Registration
Statement”) with the Securities and Exchange Commission (the “Commission”)
for purposes of offering mortgage backed or asset-backed notes and/or
certificates (the “Securities”)
through special purpose vehicles (each, an “SPV”).
WHEREAS,
from time to time, on the closing date (the “Closing
Date”) of a transaction pursuant to which Securities are offered (each, a
“Transaction”),
the Counterparty and the SPV or an underwriter or dealer with respect to the
Transaction, enter into certain derivative agreements (each, a “Derivative
Agreement”), including interest rate or currency swaps, for purposes of
providing certain yield enhancements to the SPV or the related trustee on behalf
of the SPV or a swap or corridor contract administrator (each, an “Administrator”).
NOW,
THEREFORE, in consideration of the mutual agreements set forth herein and for
other good and valuable consideration, the receipt and adequacy of which is
hereby acknowledged, the parties hereby agree as follows:
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Section
1.
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Definitions
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Company
Information: As defined in Section 4(a)(i).
Company
Financial Information: As defined in Section 2(a)(ii).
Depositor: Means
IndyMac MBS and IndyMac ABS with respect to the related Registration Statement
for which the entity is the registrant.
GAAP: As
defined in Section 3(a)(v).
XXXXX: The
Commission’s Electronic Data Gathering, Analysis and Retrieval
system.
Exchange
Act: The Securities Exchange Act of 1934, as amended and the rules
and regulations promulgated thereunder.
Exchange
Act Reports: All Distribution Reports on Form 10-D, Current Reports
on Form 8-K and Annual Reports on Form 10-K that are to be filed with respect
to
the related SPV pursuant to the Exchange Act.
IFRS: Has
the meaning set forth in Section 3(a)(v).
Master
Agreement: The ISDA Master Agreement between the Counterparty and
SPV, or if no such Master Agreement exists, the ISDA Master Agreement assumed
to
apply to the Derivative Agreement pursuant to its terms.
Prospectus
Supplement: The prospectus supplement prepared in connection with the
public offering and sale of the related Securities.
Regulation
AB: Subpart 229.1100 – Asset Backed Securities (Regulation AB), 17
C.F.R. §§229.1100-229.1123, as such may be amended from time to time, and
subject to such clarification and interpretation as have been provided by the
Commission in the adopting release (Asset-Backed Securities, Securities Act
Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff
of the Commission, or as may be provided by the Commission or its staff from
time to time.
Securities
Act: The Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
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Section
2.
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Information
to be Provided by the Counterparty.
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(a)
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Prior
to printing the related Prospectus Supplement,
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(i)
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the
Counterparty shall provide to the related Depositor such information
regarding the Counterparty, as a derivative instrument counterparty,
as is
reasonably requested by the related Depositor for the purpose of
compliance with Item 1115(a)(1) of Regulation AB. Such information
shall
include, at a minimum:
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(A)
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the
Counterparty’s legal name (and any d/b/a);
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(B)
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the
organizational form of the Counterparty; and
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(C)
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a
description of the general character of the business of the Counterparty;
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(ii)
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if
requested by the related Depositor for the purpose of compliance
with Item
1115(b) with respect to a Transaction (prior to the related Depositor
taking the steps necessary to suspend its obligation to file Exchange
Act
Reports with respect to the SPV under Sections 13 and 15(d) of the
Exchange Act, in accordance with the requirements of Regulation AB)
the
Counterparty shall:
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(A)
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provide
the financial data required by Item 1115(b)(1) or (b)(2) of Regulation
AB
(as specified by the related Depositor to the Counterparty) with
respect
to the Counterparty, any affiliated entities providing derivative
instruments to the SPV and any entities guaranteeing the obligations
of
the Counterparty or any affiliate entity providing derivative instruments
to the SPV (a “Counterparty Guarantor”) (the “Company Financial
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Information”),
in a form appropriate for use in the Prospectus Supplement and
in an
XXXXX-compatible form (if not incorporated by reference) and hereby
authorizes the related Depositor to incorporate by reference the
financial
data required by Item 1115(b)(2) of Regulation AB; and
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(B)
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if
applicable, cause its accountants to issue their consent to the filing
or
the incorporation by reference of such financial statements in the
Registration Statement.
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(b)
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Following
the Closing Date with respect to a Transaction, and until the related
Depositor takes the steps necessary to suspend its obligation to
file
Exchange Act Reports with respect to the SPV under Sections 13 and
15(d)
of the Exchange Act,
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(i)
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if
the Counterparty provided Company Financial Information to the related
Depositor for the Prospectus Supplement, within 5 Business Days of
the
release of any updated financial data, the Counterparty shall (1)
provide
current Company Financial Information (including Company Financial
Information of any Counterparty Guarantor) as required under Item
1115(b)
of Regulation AB to the related Depositor in an XXXXX-compatible
form (if
not incorporated by reference) and hereby authorizes the related
Depositor
to incorporate by reference the financial data required by Item 1115(b)(2)
of Regulation AB, and (2) if applicable, cause its accountants (and,
if
applicable, the accountants of any Counterparty Guarantor) to issue
their
consent to filing or incorporation by reference of such financial
statements in the Exchange Act Reports of the SPV; and
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(ii)
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if
the related Depositor requests Company Financial Information from
the
Counterparty, for the purpose of compliance with Item 1115(b) of
Regulation AB following the Closing Date, the Counterparty shall
upon five
Business Days written notice either (A), (1) provide current Company
Financial Information (including Company Financial Information of
any
Counterparty Guarantor) as required under Item 1115(b) of Regulation
AB to
the related Depositor in an XXXXX-compatible form (if not incorporated
by
reference) and hereby authorizes the related Depositor to incorporate
by
reference the financial data required by Item 1115(b)(2) of Regulation
AB,
(2) if applicable, cause its accountants (and, if applicable, the
accountants of any Counterparty Guarantor) to issue their consent
to
filing or incorporation by reference of such financial statements
in the
Exchange Act Reports of the SPV and (3) within 5 Business Days of
the
release of any updated financial data, provide current Company Financial
Information (including Company Financial Information of any Counterparty
Guarantor) as required under Item 1115(b) of Regulation AB to the
related
Depositor in an XXXXX-compatible form and if applicable, cause its
accountants (and, if applicable, the accountants of any Counterparty
Guarantor) to issue their consent to filing or incorporation by
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reference
of such financial statements in the Exchange Act Reports of the
SPV or (B)
assign the Derivative Agreement as provided below.
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Section
3.
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Representations
and Warranties and Covenants of the Counterparty.
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(a)
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The
Counterparty represents and warrants to the related Depositor, as
of the
date on which information is first provided to the related Depositor
under
Section 2(a)(ii), Section 2(b)(ii) or Section 2(b)(iii)(A), that,
except
as disclosed in writing the related Depositor prior to such date:
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(i)
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Each
of the Counterparty, and, if applicable, any Company Guarantor is
required
to file reports with the Commission pursuant to section 13(a) or
15(d) of
the Exchange Act.
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(ii)
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Each
of the Counterparty, and, if applicable, any Company Guarantor has
filed
all reports and other materials required to be filed by such requirements
during the preceding 12 months (or such shorter period that such
party was
required to file such reports and materials).
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(iii)
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Each
of the reports filed by the Counterparty and, if applicable, any
Company
Guarantor include (or properly incorporate by reference) the financial
statements of the Counterparty or, if applicable, such Company Guarantor.
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(iv)
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The
accountants who certify the financial statements and supporting schedules
included in the Company Financial Information (including Company
Financial
Information of any Counterparty Guarantor) (if applicable) are independent
registered public accountants as required by the Securities Act.
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(v)
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If
applicable, with respect to the Counterparty and each Counterparty
Guarantor, either (I) the financial statements included in the Company
Financial Information present fairly the consolidated financial position
of the Counterparty or such Counterparty Guarantor, as applicable
and its
consolidated subsidiaries as at the dates indicated and the consolidated
results of their operations and cash flows for the periods specified;
except as otherwise stated in the Company Financial Information,
said
financial statements have been prepared in conformity with generally
accepted accounting principles (“GAAP”) applied on a consistent basis; and
the supporting schedules included in the Company Financial Information
present fairly in accordance with GAAP the information required to
be
stated therein or (II) if the Counterparty or Counterparty Guarantor
has
adopted International Financial Reporting Standards and International
Accounting Standards (collectively “IFRS”) for the purpose of preparing
its financial statements, the Company Financial Information present
fairly
the consolidated financial position of the Counterparty or such
Counterparty Guarantor, as applicable and its consolidated subsidiaries
as
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at
the dates indicated and the consolidated results of their operations
and
cash flows for the periods specified; except as otherwise stated
in the
Company Financial Information, said financial statements have been
prepared in conformity with IFRS applied on a consistent basis;
and the
supporting schedules included in the Company Financial Information
present
fairly in accordance with IFRS the information required to be stated
therein and such Company Financial Information has been reconciled
with
GAAP.
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(vi)
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The
selected financial data and summary financial information included
in the
Company Financial Information present fairly the information shown
therein
and have been compiled on a basis consistent with that of the audited
financial statements of the Counterparty.
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(vii)
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The
Company Financial Information and other Company Information included
or
incorporated by reference in the Registration Statement (including
through
filing on an Exchange Act Report), at the time they were or hereafter
are
filed with the Commission, complied in all respects with the requirements
of Item 1115(b) of Regulation AB (in the case of the Company Financial
Information) and, did not and will not contain an untrue statement
of a
material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in
the light
of the circumstances under which they were made, not misleading.
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(b)
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If
the Counterparty or a Counterparty Guarantor has provided Company
Financial Information that is incorporated by reference into the
Registration Statement of the related Depositor, the Counterparty
or such
Counterparty Guarantor, so long as the related Depositor is required
to
file Exchange Act Reports with respect to the SPV, will file promptly
all
documents required to be filed with the Commission pursuant to
Section 13 or 14 of the Exchange Act. If permitted by the
Exchange Act, the related Depositor will take the steps necessary
to
suspend its obligation to file Exchange Act Reports, with respect
to the
SPV, under Sections 13 and 15(d) of the Exchange Act.
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(c)
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If
at any time the representations and warranties set forth in 3(a)(i)
through (iii) are no longer true and correct, the Counterparty or
the
Counterparty Guarantor, as applicable, shall provide notice to the
related
Depositor, and if any Company Financial Information is required to
be
included in the Registration Statement, or the Exchange Act Reports
of the
SPV, will provide to the related Depositor such Company Financial
Information in XXXXX-compatible format no later than the 20th calendar
day
of the month in which any of the representations or warranties in
Section
3(a)(i) through (iii) ceased to be correct.
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(d)
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The
Counterparty agrees that the terms of this Agreement shall be incorporated
by reference into any Derivative Agreement so that each SPV who is
a
beneficiary of
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a
Derivative Agreement shall be an express third party beneficiary
of this
Agreement.
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Section
4.
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Indemnification;
Remedies
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(a)
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Each
of the Counterparty and any Counterparty Guarantor shall indemnify
IndyMac
Bank and the related Depositor, each person responsible for the
preparation, execution or filing of any report required to be filed
with
the Commission with respect to such SPV, or for execution of a
certification pursuant to Rule 13a-14(d) or Rule 15d-14(d) under
the
Exchange Act; each broker dealer acting as underwriter, each person
who
controls any of such parties (within the meaning of Section 15 of
the
Securities Act and Section 20 of the Exchange Act); and the respective
present and former directors, officers, employees and agents of each
of
the foregoing, and shall hold each of them harmless from and against
any
losses, damages, penalties, fines, forfeitures, legal fees and expenses
and related costs, judgments, and any other costs, fees and expenses
that
any of them may sustain arising out of or based upon:
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(i)
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(A)
any untrue statement of a material fact contained or alleged to be
contained in any information, report, accountants’ consent or other
material provided in written or electronic form under Section 2 by
or on
behalf of the Counterparty or any Counterparty Guarantor (collectively,
the “Company Information”), or (B) the omission or alleged omission
to state in the Company Information a material fact required to be
stated
in the Company Information or necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not
misleading;
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(ii)
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any
failure by the Counterparty or any Counterparty Guarantor to deliver
any
information, report, certification, accountants’ consent or other material
or to assign the Derivative Agreement when and as required under
Section
2; or
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(iii)
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any
breach by the Counterparty or any Counterparty Guarantor of a
representation or warranty set forth in Section 3(a) and made as
of a date
prior to the Closing Date, to the extent that such breach is not
cured by
the Closing Date, or any breach by the Counterparty or any Counterparty
Guarantor of a representation or warranty pursuant to Section 3 to
the
extent made as of a date subsequent to the Closing Date.
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In
the
case of any failure or such Counterparty Guarantor of performance described
in
clause (a)(ii) of this Section, the Counterparty shall promptly reimburse the
related Depositor and each Person responsible for the preparation, execution
or
filing of any report required to be filed with the Commission with respect
to
such SPV, or for execution of a certification pursuant to Rule 13a-14(d) or
Rule
15d-14(d) under the Exchange Act with respect to the SPV, for all costs
reasonably incurred by each such party in order to obtain the information,
report,
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certification,
accountants’ consent or other material
not delivered as required by the Counterparty.
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(b)
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(i)
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Any
failure by the Counterparty or any Counterparty Guarantor to deliver
any
information, report, accountants’ consent or other material when and in
any case only as required under Section 2 or any breach by the
Counterparty or any Counterparty Guarantor of a representation or
warranty
set forth in Section 3 and made as of a date prior to the Closing
Date, to
the extent that such breach is not cured by the Closing Date (or
in the
case of information needed for purposes of printing the Prospectus
Supplement, the date of printing of the Prospectus Supplement), shall,
except as provided in clause (ii) of this paragraph, immediately
and
automatically, without notice or grace period, constitute an Additional
Termination Event (as defined in the Master Agreement) with the
Counterparty as the sole Affected Party (as defined in the Master
Agreement) under the Derivative Agreement. Following such
termination, a termination payment (if any) shall be payable by the
applicable party as determined by the application of Section 6(e)(ii)
of
the Master Agreement, with Market Quotation and Second Method being
the
applicable method for determining the termination payment (notwithstanding
anything in the Derivative Agreement to the contrary).
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(ii)
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If
the Counterparty or any Counterparty Guarantor has failed to deliver
any
information, report, or accountants’ consent when and as required under
Section 2, which continues unremedied for the lesser of ten calendar
days
after the date on which such information, report, or accountants’ consent
was required to be delivered or such period in which the applicable
Exchange Act Report for which such information is required can be
timely
filed (without taking into account any extensions permitted to be
filed),
or if the Counterparty has provided Company Information any breach
by the
Counterparty or any Counterparty Guarantor of a representation or
warranty
pursuant to Section 3 to the extent made as of a date subsequent
to such
closing date, and the Counterparty has not, at its own cost, within
the
period in which the applicable Exchange Act Report for which such
information is required can be timely filed caused another entity
(which
meets any applicable ratings threshold in the Derivative Agreement)
to
replace the Counterparty as party to the Derivative Agreement that
(i) has
signed an agreement with IndyMac Bank and the Depositors substantially
in
the form of this Agreement, (ii) has agreed to deliver any information,
report, certification or accountants’ consent when and as required under
Section 2 hereof and (iii) is approved by the Depositor (which approval
shall not be unreasonably withheld) and any rating agency, if applicable,
on terms substantially similar to the Derivative Agreement, then
an
Additional Termination Event (as defined in the Master Agreement)
shall
have occurred with the Counterparty as the sole Affected
Party. In the event that an Early Termination Date is
designated in connection with such Additional Termination Event,
a
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termination
payment (if any) shall be payable by the applicable party as of
the Early
Termination Date as determined by the application of Section 6(e)(ii)
of
the Master Agreement, with Market Quotation and Second Method being
the
applicable method for determining the termination payment (notwithstanding
anything in the Derivative Agreement to the contrary).
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(iii)
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In
the event that the Counterparty or the SPV has found a replacement
entity
in accordance with Section 4(b)(ii), the Counterparty shall promptly
reimburse the SPV for all reasonable incidental expenses incurred
by the
SPV, as such are incurred, in connection with the termination of
the
Counterparty as counterparty and the entry into a new Derivative
Agreement. The provisions of this paragraph shall not limit whatever
rights the SPV may have under other provisions of this Agreement
or
otherwise, whether in equity or at law, such as an action for damages,
specific performance or injunctive relief.
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Section
5.
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Miscellaneous.
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(a)
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Company
Financial Information. Notwithstanding anything to the contrary contained
herein, if Regulation AB is amended, or the Commission has issued
interpretive guidance uniformly applicable to registrants of Asset-Backed
Securities allowing the presentation of the financial information
required
by Item 1115 of Regulation AB with respect to an affiliate of the
Counterparty rather than the Counterparty and any affiliated entities
providing derivatives to the SPV, "Company Financial Information"
shall be
deemed to refer to the financial information of such permitted entity
provided the Counterparty has received written confirmation from
IndyMac
Bank that no amendment to this Agreement is necessary. The parties
shall
reasonably cooperate with respect to any amendments to this Agreement
to
reflect such amendment or interpretation.
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(b)
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Construction.
Throughout this Agreement, as the context requires, (a) the singular
tense
and number includes the plural, and the plural tense and number includes
the singular; (b) the past tense includes the present, and the present
tense includes the past; and (c) references to parties, sections,
schedules, and exhibits mean the parties, sections, schedules, and
exhibits of and to this Agreement. The section headings in this Agreement
are inserted only as a matter of convenience, and in no way define,
limit,
extend, or interpret the scope of this Agreement or of any particular
section.
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(c)
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Assignment.
None of the parties may assign their rights under this Agreement
without
the prior written consent of the other parties. Subject to the foregoing,
this Agreement shall be binding on and inure to the benefit of the
parties
and their respective successors and permitted assigns.
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(d)
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No
Third-Party Benefits Except as Specified. None of the provisions
of this
Agreement are intended to benefit, or to be enforceable by, any
third-party
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beneficiaries
except the related SPV and any trustee of an SPV or any Administrator.
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(e)
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Governing
Law. This Agreement shall be governed by and construed in accordance
with
the internal laws of the State of New York without regard to the
conflict
of laws principles thereof.
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(f)
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Amendment
and Waiver. This Agreement may not be modified or amended except
by an
instrument in writing signed by the parties hereto. No waiver of
any
provision of this Agreement or of any rights or obligations of any
party
under this Agreement shall be effective unless in writing and signed
by
the party or parties waiving compliance, and shall be effective only
in
the specific instance and for the specific purpose stated in that
writing.
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(g)
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Counterparts.
This Agreement may be executed in one or more counterparts, each
of which
shall be deemed an original, but all of which together shall constitute
one and the same instrument.
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(h)
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Additional
Documents. Each party hereto agrees to execute any and all further
documents and writings and to perform such other actions which may
be or
become reasonably necessary or expedient to effectuate and carry
out this
Agreement.
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(i)
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Severability.
Any provision hereof which is prohibited or unenforceable shall be
ineffective only to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof.
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(j)
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Integration.
This Agreement contains the entire understanding of the parties with
respect to the subject matter hereof. There are no restrictions,
agreements, promises, representations, warranties, covenants or
undertakings with respect to the subject matter hereof other than
those
expressly set forth or referred to herein. This Agreement supersedes
all
prior agreements and understandings between the parties with respect
to
its subject matter.
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IN
WITNESS WHEREOF, the parties hereto have caused their names to be signed hereto
by their respective officers thereunto duly authorized as of the day and year
first above written.
| INDYMAC MBS, INC. | |||
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By:
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/s/ Xxxx Xxxxxxxx | |
| Name: Xxxx Xxxxxxxx | |||
| Title: Vice President | |||
| INDYMAC ABS, INC. | |||
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By:
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/s/ Xxxx Xxxxxxxx | |
| Name: Xxxx Xxxxxxxx | |||
| Title: Vice President | |||
| INDYMAC BANK, F.S.B. | |||
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By:
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/s/ Xxxx Xxxxxxxx | |
| Name: Xxxx Xxxxxxxx | |||
| Title: Vice President | |||
| DEUTSCHE BANK AG, NEW YORK BRANCH | |||
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By:
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/s/ Xxxxxxxx Xxxx | |
| Name: Xxxxxxxx Xxxx | |||
| Title: Vice President | |||
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By:
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/s/ Xxxxxxx Xxxx | |
| Name: Xxxxxxx Xxxx | |||
| Title: Legal Counsel | |||
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