Contract
Exhibit
10.3
Item
1115
Agreement dated as of June 29, 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 Xxxxxxx Xxxxx Capital
Services, Inc., 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 either the
SPV
or a swap or corridor contract administrator (each, an
“Administrator”).
NOW,
THEREFORE, in
consideration of the mutual agreements set forth herein and for other good
and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereby agree as follows:
Section 1. Definitions
Company
Information: As defined in Section 4(a)(i).
Company
Financial Information: As defined in Section
2(a)(ii).
Depositor:
Means IndyMac MBS 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).
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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.
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;
(C)
a description of the general character of the business of the
Counterparty;
(D)
a description of any affiliation or material ownership
relationship (as set forth in Item 1119) between the Counterparty and any of
the
following parties:
(1)
IndyMac Bank (or any other sponsor identified
to the
Counterparty by IndyMac Bank);
(2)
the related Depositor (as identified to the
Counterparty by IndyMac Bank);
(3)
the SPV;
(4)
IndyMac Bank (or any other servicer or master
servicer identified to the Counterparty by IndyMac Bank);
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(5)
Deutsche Bank National Trust Company (or any
other
trustee identified to the Counterparty by IndyMac Bank);
(6)
any originator identified to the Counterparty
by
IndyMac Bank;
(7)
any enhancement or support provider identified
to the
Counterparty by IndyMac Bank; and
(8)
any other material transaction party identified
to
the Counterparty by IndyMac Bank.
(ii)
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:
(A)
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 either
the Counterparty or any affiliate entity providing derivative instruments to
the
SPV (a “Counterparty Guarantor”) (the “Company Financial Information”), in a
form appropriate for use in the Prospectus Supplement and in an XXXXX-compatible
form; and
(B)
if applicable, cause its accountants or the accountants of the
Counterparty Guarantor to issue their consent to the filing of such financial
statements in the Registration Statement.
(b)
Following the Closing Date with respect to a
Transaction, and until the 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,
(i)
If requested by the related Depositor, then no
later
than March 1 of each calendar year, the Counterparty shall (1) notify the
related Depositor in writing of any affiliations or material
ownership relationships that develop following the Closing Date between the
Counterparty and any of the parties specified in Section 2(a)(i)(D) (and any
other parties identified in writing by the related Depositor) and (2) provide
to
the related Depositor a description of such affiliations or material ownership
relationships as described in Section 2(b)(i)(1);
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(ii)
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 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 (or, if applicable, the accountants
of any Counterparty Guarantor) to issue their consent to filing of such
financial statements in the Exchange Act Reports of the SPV; and
(iii)
if the 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 as required under Item 1115(b) of Regulation AB to the
related Depositor in an XXXXX-compatible form, (2) if applicable, cause its
accountants (or, 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 as required under Item 1115 (b) of Regulation AB
to the related Depositor in an XXXXX-compatible form and if applicable, cause
its accountants (or, if applicable, the accountants of any Counterparty
Guarantor) to issue their consent to filing or incorporation by reference of
such financial statements in the Exchange Act Reports of the SPV or (B) assign
the Derivative Agreement as provided below.
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 the related Depositor prior
to such date:
(i)
The accountants who certify the financial statements
and supporting schedules included in the Company Financial Information are
independent registered public accountants as required by the Securities
Act.
(ii)
If applicable, with respect to the Counterparty
or
the Counterparty Guarantor, as applicable, 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 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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(iii)
The selected financial data and summary financial
information included in the Company Financial Information present fairly the
information shown therein and have been compiled on a basis consistent with
that
of the audited financial statements of the Counterparty or the Counterparty
Guarantor, as applicable.
(iv)
The Company Financial Information and other Company
Information included or incorporated by reference in the Registration Statement
(including through filing on an Exchange Act Report), at the time they were
or
hereafter are filed with the Commission, complied in all respects with the
requirements of Item 1115(b) of Regulation AB (in the case of the Company
Financial Information) and, did not and will not contain an untrue statement
of
a material fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(b)
The Counterparty agrees that the terms of this
Agreement shall be incorporated by reference into any Derivative Agreement
so
that each SPV who is a beneficiary of a 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 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)
(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; 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 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 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 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
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 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)
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.
Section 5.
Miscellaneous.
(a)
Company Financial Information. Notwithstanding
anything to the contrary contained herein, if Regulation AB is amended, or
the
Commission has issued interpretive guidance uniformly applicable to registrants
of Asset-Backed Securities allowing the presentation of the financial
information required by Item 1115 of Regulation AB with respect to an affiliate
of the Counterparty rather than the Counterparty and any affiliated entities
providing derivatives to the SPV, "Company Financial Information" shall be
deemed to refer to the financial information of such permitted entity provided
the Counterparty has received 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)
Construction. Throughout this Agreement, as the
context requires, (a) the singular tense and number includes the plural, and
the
plural tense and number includes the singular; (b) the past tense includes
the
present, and the present tense includes the past; and (c) references to parties,
sections, schedules, and exhibits mean the parties, sections, schedules, and
exhibits of and to this Agreement. The section headings in this Agreement are
inserted only as a matter of convenience, and in no way define, limit, extend,
or interpret the scope of this Agreement or of any particular
section.
(c)
Assignment. None of the parties may assign
their rights under this Agreement without the prior written consent of the
other
parties. Subject to the foregoing, this Agreement shall be binding on and inure
to the benefit of the parties and their respective successors and permitted
assigns.
(d) No
Third-Party Benefits Except as Specified. None of the provisions
of this Agreement are intended to benefit, or to be enforceable by, any
third-party beneficiaries except the related SPV and any trustee of an SPV
or
any Administrator.
(e) 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.
(f) Amendment
and Waiver. This Agreement may not be modified or amended
except by an instrument in writing signed by the parties hereto. No waiver
of
any provision of this Agreement or of any rights or obligations of any party
under this Agreement shall be effective unless in writing and signed by the
party or parties waiving compliance, and shall be effective only in the specific
instance and for the specific purpose stated in that writing.
(g) Counterparts.
This
Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(h) Additional
Documents. Each party hereto agrees to execute any and
all further documents and writings and to perform such other actions which
may
be or become reasonably necessary or expedient to effectuate and carry out
this
Agreement.
(i)
Severability. Any provision hereof which is
prohibited or unenforceable shall be ineffective only to the extent of such
prohibition or unenforceability without invalidating the
remaining provisions hereof.
(j) Integration.
This
Agreement contains the entire understanding of
the parties with respect to the subject matter hereof. There are no
restrictions, agreements, promises, representations, warranties, covenants
or
undertakings with respect to the subject matter hereof other than those
expressly set forth or referred to herein. This Agreement supersedes all prior
agreements and understandings between the parties with respect to its subject
matter.
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IN
WITNESS WHEREOF,
the parties hereto have caused their names to be signed hereto by their
respective officers thereunto duly authorized as of the day and year first
above
written.
INDYMAC MBS,
INC.
By: /s/ Xxxx
Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: Vice President
Name: Xxxx Xxxxxxxx
Title: Vice President
INDYMAC ABS,
INC.
By: /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: Vice President
INDYMAC
BANK, F.S.B.
By: /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: Vice President
XXXXXXX XXXXX CAPITAL SERVICES
By: /s/ Xxxxxxxx Xxxxx
Name: Xxxxxxxx Xxxxx
Title: Authorized Signatory
ACKNOWLEDGED AND
AGREED
(solely with respect to
Section 4(b)):
XXXXXXX XXXXX & CO.,
INC.
By: /s/ Xxxxxxxx Xxxxxxxxxxxx
Name: Xxxxxxxx Xxxxxxxxxxxx
Title: Designated Signatory
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