Exhibit 99.4
Item 1115 Agreement dated as of April 24, 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 The Bank of New York, a trust
company duly organized and existing under the laws of the State of New York,
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:
Section 1. Definitions
Company Information: As defined in Section 4(a)(i).
Company Financial Information: As defined in Section 2(a)(ii).
Depositor: Means IndyMac MBS and IndyMac ABS with respect to the
related Registration Statement for which the entity is the registrant.
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 SPV pursuant to the Exchange Act.
GAAP: As defined in Section 3(a)(v).
Master Agreement: The ISDA Master Agreement between the
Counterparty and the SPV Master Agreement 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. ss.ss.229.1100-229.1123, as such may be amended
from time to time, and subject to such clarification and interpretation as
have been provided by the Commission in the adopting release (Asset-Backed
Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531
(Jan. 7, 2005)) or by the staff of the Commission, or as may be provided by
the Commission or its staff from time to time.
Securities Act: The Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
Section 2. Information to be Provided by the Counterparty.
(a) Prior to printing the related Prospectus Supplement,
(i) the Counterparty shall provide to the 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:
(A) The Counterparty's legal name (and any d/b/a);
(B) the organizational form of the Counterparty; and
(C) a description of the general character of the business
of the Counterparty.
(ii) if requested by the related Depositor for the purpose of
compliance with Item 1115(b) with respect to a Transaction,
the Counterparty shall:
(A) provide the financial data required by Item 1115(b)(1)
or (b)(2) of Regulation AB (as the case may be, as
specified by the related Depositor to the
Counterparty) with respect to the Counterparty and any
affiliated entities providing derivative instruments
to the SPV (the "Company Financial Information"), in a
form appropriate for use in the Prospectus Supplement
and in an XXXXX-compatible form; and
(B) if applicable, cause its accountants to issue their
consent to the filing of such financial statements in
the Registration Statement.
(b) Following the Closing Date with respect to a Transaction,
(i) if the Counterparty provided Company Financial Information
to the related Depositor for the Prospectus Supplement,
within 5 Business Days
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of the release of any updated financial data, the
Counterparty shall (1) provide current Company Financial
Information as required under Item 1115(b) of Regulation AB
to the related Depositor in an XXXXX-compatible form, and
(2) if applicable, cause its accountants to issue their
consent to filing or incorporation by reference of such
financial statements in the Exchange Act Reports of the SPV;
and
(ii) if the related Depositor requests Company Financial
Information from the Counterparty, then for the purpose of
compliance with Item 1115(b) of Regulation AB following the
Closing Date, Counterparty shall, upon five Business Days
written notice, either:
(A) all of the following: (1) provide current Company
Financial Information as required under Item 1115(b)
of Regulation AB to the related Depositor in an
XXXXX-compatible form; (2) if applicable, cause its
accountants 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 as required under Item 1115(b)
of Regulation AB to the related Depositor in an
XXXXX-compatible form and if applicable, cause its
accountants to issue their consent to filing or
incorporation by reference of such financial
statements in the Exchange Act Reports of the SPV;
(B) assign the Derivative Agreement as provided below; or
(C) if permissible under Regulation AB (which
determination shall be made by IndyMac Bank in its
sole discretion), deliver collateral to the SPV under
the Credit Support Annex related to the relevant
Master Agreement in type and amount to the extent
necessary, in IndyMac Bank's sole discretion, to
assure compliance with Item 1115 of Regulation AB.
Section 3. Representations and Warranties and Covenants of the Counterparty.
(a) 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 to the
related Depositor prior to such date:
(i) The accountants who certify the financial statements and
supporting schedules included in the Company Financial
Information (if applicable) are independent registered
public accountants as required by the Securities Act.
(ii) If applicable, the financial statements included in the
Company Financial Information present fairly the
consolidated financial position of the Counterparty (or to
the extent applicable and permissible, the entity that
consolidates the Counterparty) and its consolidated
subsidiaries as at the
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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. 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.
(iii) 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 material respects
with the requirements of Item 1115(b) of Regulation AB (in
the case of the Company Financial Information) and, did not
and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated
therein or necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading.
(b) The Counterparty agrees that the terms of this Agreement shall be
incorporated by reference into any Derivative Agreement so that
the SPV who is a beneficiary of such Derivative Agreement shall be
an express third party beneficiary of this Agreement.
Section 4. Indemnification; Remedies
(a) The Counterparty 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:
(i) (A) any untrue statement of a material fact contained or
alleged to be contained in any information, report,
certification, accountants' consent or other material
provided in written or electronic form under Section 2 by or
on behalf of the Counterparty (collectively, the "Company
Information"), or (B) the omission or alleged omission to
state in the Company
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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; or
(ii) any breach by the Counterparty 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 of a representation or warranty pursuant to
Section 3 to the extent made as of a date subsequent to the
Closing Date.
(b) (i) Any failure by the Counterparty to deliver any
information, report, certification, accountants' consent or
other material when and as required under Section 2 or any
breach by the Counterparty 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).
(ii) If either (A) the Counterparty has failed to deliver any
information, report, certification 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, certification 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 (B) the Counterparty has provided Company Information,
and there occurs any breach by the Counterparty of a
representation or warranty pursuant to Section 3 to the
extent made as of date subsequent to the Closing Date, and
in either case 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 ratings related
requirements of the applicable rating agencies at such time)
to replace the Counterparty as party to the Derivative
Agreement that (1) has signed an agreement with IndyMac Bank
and the related Depositor substantially in the form of this
Agreement, (2) has agreed to deliver any information,
report, certification or accountants' consent when and as
required under Section 2 hereof and
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(3) is approved by the related 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
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).
(iii) In the event that the Counterparty or the SPV has found a
replacement entity in accordance with Section 2(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.
Section 5. Miscellaneous.
(a) 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.
(b) 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.
(c) No Third-Party Benefits Except as Specified. None of the
provisions of this Agreement are intended to benefit, or to be
enforceable by, any third-party beneficiaries except the related
SPV and any trustee of an SPV or any Administrator.
(d) 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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(e) 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.
(f) 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.
(g) 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 necessary or expedient to
effectuate and carry out this Agreement.
(h) 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.
(i) 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.
By: /s/ Xxxx Xxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxx
Title: Senior Vice President
INDYMAC ABS, INC.
By: /s/ Xxxx Xxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxx
Title: Senior Vice President
INDYMAC BANK, F.S.B.
By: /s/ Xxxx Xxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxx
Title: Senior Vice President
THE BANK OF NEW YORK
By: /s/ Xxxxx Xxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
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