The 1115 Agreement
EXHIBIT
99.9
The
1115
Agreement
EXECUTION
ITEM
1115
AGREEMENT
Item
1115
Agreement (this “Agreement”), dated as of November 15, 2006, among IndyMac Bank
F.S.B. (“Sponsor”), IndyMac ABS, Inc, (a “Depositor”), IndyMac MBS,
Inc. (a “Depositor”) and Bear Xxxxxxx Financial Products Inc. (the “Derivative
Provider”).
RECITALS
WHEREAS,
the Depositors have each filed a Registration Statement on Form S-3 (each,
a
“Registration Statement”) with the U.S. 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 “Issuing Entity”);
WHEREAS,
from time to time, on or prior to the closing date of a securitization (the
“Closing Date”) pursuant to which Securities are offered (each, a
“Securitization”), the Derivative Provider may enter into certain derivative
agreements with the Issuing Entity (or a trustee or securities or swap
administrator or other person acting in a similar capacity in connection
with
such Securitization (each, an “Administrator”)), or the Derivative Provider may
enter into certain derivative agreements with Sponsor or an affiliate of
the
Sponsor and such derivative agreements are assigned to the Issuing Entity
or
Administrator (each, in either case, a “Derivative Agreement”), in each case
with respect to such Securitization;
WHEREAS,
the Derivative Provider agrees and acknowledges that the Sponsor and Depositors
are required under Regulation AB (as defined herein) to disclose certain
financial data and/or financial statements with respect to the Derivative
Provider, depending on the applicable “significance percentage” for each
Derivative Agreement as calculated from time to time in accordance with Item
1115 of Regulation AB;
WHEREAS,
the Sponsor, on behalf of itself and each Issuing Entity through which it
effects Securitizations, the Depositors and the Derivative Provider, desire
to
set forth certain rights and obligations with regard to financial data and/or
financial statements which the Sponsor and Depositors and other information
which the Sponsor and Depositors may be required to disclose in accordance
with
Regulation AB (as defined herein) and certain related matters.
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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Additional
Termination Event: With respect to any Derivative Agreement, as
defined in the related Master Agreement.
Affected
Party: With respect to any Derivative Agreement, as defined in
the related Master Agreement.
Company
Information: As defined in Addendum A.
Company
Financial Information: With respect to each Securitization, the
financial data described in Item 1115(b)(1) of Regulation AB or the financial
statements described in Item 1115(b)(2) of Regulation AB, in either case
with
respect to the Derivative Provider providing derivative instruments to the
related Issuing Entity and/or Administrator.
GAAP: As
defined in Section 3(a)(ii).
Exchange
Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder.
Exchange
Act Reports: With respect to an Issuing Entity, all Distribution
Reports on Form 10-D, Current Reports on Form 8-K and Annual Reports on Form
10-K and any amendments thereto, required to be filed by a Depositor
with respect to such Issuing Entity pursuant to the Exchange Act.
Free
Writing Prospectus: With respect to each Securitization, the free writing
prospectus or prospectuses prepared in connection with the public offering
and
sale of the related Securities and used to price such Securities.
Master
Agreement: With respect to any Derivative Agreement, the ISDA
Master Agreement referenced in such Derivative Agreement, together with any
Schedule, Credit Support Annex and Confirmations forming a part thereof or
incorporated therein, or, if no such ISDA Master Agreement exists, the ISDA
Master Agreement deemed to apply to such Derivative Agreement pursuant to
its
terms, together with any Schedule, Credit Support Annex and Confirmations
deemed
to form a part thereof or to be incorporated therein.
Prospectus
Supplement: With respect to each Securitization, 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 Derivative
Provider.
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(a)
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Prior
to printing the Free Writing Prospectus and/or Prospectus Supplement
relating to each Securitization, the Derivative Provider, at its
own
expense, shall:
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(i)
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provide
to the Depositor the following information and such other information
as
is reasonably requested by the Depositor for the purpose of compliance
with Item 1115(a)(1) of Regulation AB or the Securities Act in
respect of
such Securitization:
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(A)
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the
Derivative Provider’s legal name (and any
d/b/a),
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(B)
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the
organizational form of the Derivative
Provider,
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(C)
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a
description of the general character of the business of the Derivative
Provider,
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(D)
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a
description of any affiliation or relationship (as set forth in
Item 1119)
between the Derivative Provider and any of the following
parties:
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(1)
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any
servicer that is not affiliated with the Sponsor (or other person
acting
in a similar capacity) identified as such in the related Free Writing
Prospectus and/or Prospectus
Supplement,
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(2)
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the
trustee (or other person acting in a similar capacity) identified
as such
in the related Free Writing Prospectus and/or Prospectus
Supplement,
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(3)
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any
originator identified as such in the related Free Writing Prospectus
and/or Prospectus Supplement,
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(4)
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any
enhancement or support provider identified to the Derivative Provider
by
the Sponsor, and
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(5)
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any
other material Securitization party identified to the Derivative
Provider
by the Sponsor;
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(E)
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information
relating to any material legal or governmental proceedings that
would
affect the Derivative Provider’s ability to perform its obligations under
the related Derivative Agreement;
and
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(F)
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any
other information that is material or otherwise required for the
purpose
of compliance (as determined in good faith by the Depositor its
sole
discretion and acting in a commercially reasonable manner) with
the
Securities Act; and
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(ii)
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if
reasonably requested by the Depositor for the purpose of compliance
with
Item 1115(b) of Regulation AB with respect to such Securitization,
provide
to the Depositor the Company Financial Information described in
Item
1115(b)(1) of Regulation AB or Item 1115(b)(2) of Regulation AB
(as
specified by the Depositor).
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(b)
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Following
the Closing Date with respect to each
Securitization:
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(i)
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for
so long as the Depositor is required to file Exchange Act Reports
in
respect of the related Issuing Entity (which the parties hereto
may assume
shall be for the calendar year following the closing date of the
related
Securitization, unless otherwise notified in writing by the Sponsor),
the
Derivative Provider, at its own expense, shall no later than the
25th
calendar day
of each month, notify the Depositor in writing of any known material
affiliations or relationships that develop following the Closing
Date
between the Derivative Provider and any of the parties specified
in
Section 2(a)(i)(D) (and any other parties identified in writing
by the
Depositor), and provide to the Depositor a description of such
affiliations or relationships;
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(ii)
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if,
on any Business Day for so long as the Depositor is required to
file
Exchange Act Reports in respect of the related Issuing Entity,
the
Depositor provides written notice to the Derivative Provider that
the
“significance percentage” for any Derivative Agreement relating to such
Securitization (calculated separately or in the aggregate with
other
Derivative Agreements for such Securitization, such aggregation
as
determined by the Depositor in its sole discretion), is (x) 10%
or more
(but less than 20%) or (y) 20% or more, in each case based on a
reasonable
good-faith determination by the Depositor of the “significance percentage”
in accordance with Item 1115 of Regulation AB (the providing of
such
notice, a “Derivative Disclosure Event”), the Derivative Provider, at its
own expense, shall:
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(A)
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provide
to the Depositor the Company Financial Information described in
(x) Item
1115(b)(1) of Regulation AB or (y) Item 1115(b)(2) of Regulation
AB,
respectively,
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(B)
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with
respect to each Derivative Agreement entered into in connection
with such
Securitization, cause another entity to replace the Derivative
Provider as
a party to such Derivative Agreement or, if such replacement cannot
be
effected, to enter into a replacement derivative agreement on terms
substantially identical to such Derivative Agreement (as determined
by the
Depositor in its sole discretion), which entity (1) meets or exceeds
(or a
guarantor, as applicable, for such entity meets or exceeds) any
rating
agency criteria set forth in, or otherwise applicable to, such
Derivative
Agreement (as determined by the Depositor in its sole discretion),
(2) has
entered into an agreement with Sponsor and Depositor substantially
in the
form of this Agreement, (3) has agreed to comply with the immediately
preceding clause (A) and Section 2(b)(iii), and (4) has been approved
by
the Depositor (which approval shall not be unreasonably
withheld),
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(C)
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obtain
a guaranty of the Derivative Provider’s obligations under the Derivative
Agreement from an affiliate of the Derivative Provider, which affiliate
(1) meets or exceeds any rating agency criteria set forth in, or
otherwise
applicable to, such Derivative Agreement (as determined by the
Depositor
in its sole discretion), (2) has entered into an agreement with
the
Sponsor and Depositor substantially in the form of this Agreement,
(3) has
agreed to comply with the immediately preceding clause (A) and
Section
2(b)(iii) such that the information provided in respect of such
affiliate
will satisfy any requirements under Item 1115 of Regulation AB
that are
applicable to the Derivative Provider (as determined by the Depositor
in
its sole discretion), and (4) has been approved by the Depositor
(which
approval shall not be unreasonably withheld),
or
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(D)
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post
collateral in an amount sufficient to reduce the “significance percentage”
for purposes of Item 1115 of Regulation AB with respect to any
Derivative
Agreement relating to such Securitization, calculated separately
or in the
aggregate with other Derivative Agreements for such Securitization
(such
aggregation and calculation of the “significance percentage” as determined
by the Depositor in its sole discretion) (1) to 5% if the
Depositor has notified the Derivative Provider that the “significance
percentage” is 10% or more (but less than 20%) or (2) to 15% if the
Depositor has notified the Derivative Provider that the “significance
percentage” is 20% or more; and
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(iii)
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for
so long (A) as the Depositor is required to file Exchange Act Reports
in
respect of the related Issuing Entity (which the parties hereto
may assume
shall be for the calendar year following the closing date of the
related
Securitization, unless otherwise notified in writing by the Sponsor)
and
(B) the “significance percentage” for any Derivative Agreement relating to
such Securitization (calculated separately or in the aggregate
with other
Derivative Agreements for such Securitization) is (x) 10% or more
(but
less than 20%) or (y) 20% or more, in each case based on a reasonable
good-faith determination by the Depositor of the significance percentage
in accordance with Item 1115 of Regulation AB, if the Derivative
Provider
has provided Company Financial Information to the Depositor pursuant
to
Section 2(a)(ii) or Section 2(b)(ii), the Derivative Provider,
at its own
expense, shall within five (5) days of the release of any updated
Company
Financial Information, provide to the Depositor such updated Company
Financial Information.
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(iv)
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In
no event shall the Derivative Provider be required to calculate
the
“significance percentage” for purposes of this
Agreement.
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(c)
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The
Derivative Provider shall provide all Company Financial Information
provided pursuant to this Section 2 in Microsoft Word® format, Microsoft
Excel® format or another format suitable for conversion to the format
required for filing by the Depositor with the Commission via the
Electronic Data Gathering and Retrieval System (XXXXX) (for avoidance
of
doubt, Company Financial Information shall not be provided in .pdf
format); alternatively, if permitted by Regulation AB (as determined
by
the Sponsor in its sole discretion), the Derivative Provider may
provide
such Company Financial Information by providing to the Depositor
written
consent to incorporate by reference in Exchange Act Reports of
the
Depositor such Company Financial Information from reports filed
by the
Derivative Provider pursuant to the Exchange Act. In addition,
the Derivative Provider shall also provide Company Financial Information
provided pursuant to Section 2(a)(ii) in a format appropriate for
use in
the related Free Writing Prospectus and Prospectus
Supplement. If any Company Financial Information provided
pursuant to this Section 2 has been audited, the Derivative Provider
shall
cause its outside accounting firm to provide to the Depositor such
accounting firm’s written consent to the filing or incorporation by
reference in the Exchange Act Reports of the Depositor of such
accounting
firm’s report relating to its audits of such Company Financial
Information.
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Section
3.
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Representations
and Warranties of the Derivative
Provider.
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The
Derivative Provider represents and warrants to the Depositor, as of the date
on
which the Derivative Provider first provides Company Financial Information
to
the Depositor under Section 2(a)(ii), Section 2(b)(ii) or Section 2(b)(iii),
that, except as disclosed in writing to the Depositor prior to such
date:
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(a)
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the
outside accounting firm that certifies the financial statements
and
supporting schedules included in Company Financial Information,
or which
provides a procedures letter with respect to such Company Financial
Information, (as applicable) is an independent registered public
accounting firm as required by the Securities
Act;
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(b)
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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 Derivative
Provider;
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(c)
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the
financial statements included in the Company Financial Information
present
fairly the consolidated financial position of the Derivative Provider
and
its consolidated subsidiaries as of 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, such financial statements have been prepared in conformity
with United States 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; and
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(d)
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the
Company Financial Information and other Company Information included
in
any Free Writing Prospectus or Prospectus Supplement or referenced
via a
website link 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.
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Section
4.
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Third
Party Beneficiaries.
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The
Derivative Provider agrees that the terms of this Agreement shall be
incorporated by reference into any Derivative Agreement so that each Issuing
Entity or Administrator that is a party to a Derivative Agreement shall be
an
express third party beneficiary of this Agreement.
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Section
5.
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Indemnification.
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The
Derivative Provider indemnification set forth in Addendum A hereto is
incorporated by reference herein.
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Section
6.
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Additional
Termination Events.
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(a)
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(i)
Any breach by the Derivative Provider of a representation or warranty
set
forth in Section 3 to the extent made as of a date prior to a Closing
Date, which is not cured by such Closing Date (or, in the case
of
information required under Section 2(a), the date of printing of
the Free
Writing Prospectus or Prospectus Supplement, as applicable), or
(ii) any
breach by the Derivative Provider of a representation or warranty
pursuant
to Section 3 to the extent made as of a date subsequent to such
Closing
Date, or (iii) any failure by the Derivative Provider to comply
with the
requirements of Section 2(a), Section 2(b)(ii) or so much of Section
2(b)(iii) as relates to Section 2(a) or 2(b)(ii), shall immediately
and
automatically, without notice, constitute an Additional Termination
Event
under each Derivative Agreement entered into in connection with
the
related Securitization, with respect to which the Derivative Provider
shall be the sole Affected Party.
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(b)
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Any
failure of the Derivative Provider to satisfy the requirements
of Section
2(b)(ii) within ten (10) calendar days of any Derivative Disclosure
Event
shall constitute an Additional Termination Event under each Derivative
Agreement entered into in connection with the related Securitization,
which respect to which the Derivative Provider shall be the sole
Affected
Party.
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(c)
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Following
a termination of a Derivative Agreement resulting from an Additional
Termination Event set forth in this Section 6, a termination payment
(if
any) shall be payable under such Derivative Agreement by the applicable
party as determined under Section 6(e)(ii) of the related Master
Agreement, with Market Quotation and Second Method being the applicable
method for determining such termination payment (notwithstanding
anything
in such Derivative Agreement to the
contrary).
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(d)
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In
the event that a replacement entity or replacement derivative agreement
has been secured in accordance with Section 2(b)(ii)(B), or a guarantor
has been secured in accordance with Section 2(b)(ii)(C), the Derivative
Provider shall promptly reimburse the Issuing Entity for all reasonable
incidental expenses incurred by the Issuing Entity in connection
with the
replacement of the Derivative Provider or Derivative Agreement
or addition
of such guarantor. The provisions of this paragraph shall not
limit whatever rights the Issuing Entity 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
7.
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Miscellaneous.
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(a)
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Construction. Throughout
this Agreement, as the context requires, (i) the singular tense
and number
includes the plural, and the plural tense and number includes the
singular, (ii) the past tense includes the present, and the present
tense
includes the past, and (iii) 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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(b)
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Assignment. No
party to this Agreement may assign its rights under this Agreement
without
the prior written consent of the other parties hereto. 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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(c)
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Notices. All
notices and other
communications hereunder will be in writing (including by facsimile)
and
effective only upon receipt, and, if sent to the Derivative Provider
will
be mailed or delivered to Bear Xxxxxxx Financial Products Inc.,
000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: DPC Manager,
if sent
to the Sponsor will be mailed or delivered to IndyMac Bank, F.S.B.,
000 Xxxx
Xxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000-0000, Attention:
Capital Markets, and
if sent to a Depositor will be mailed or delivered to IndyMac ABS,
Inc. or
IndyMac MBS, Inc., as applicable, 000 Xxxxx Xxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxx 00000, Attention: Capital
Markets.
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(d)
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(e)
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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 necessary or expedient to effectuate and carry out
this
Agreement.
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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, all of which together shall constitute one
and the
same instrument.
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(h)
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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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(i)
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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 BANK F.S.B. | |||
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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 MBS, INC. | |||
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By:
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/s/ Xxxx Xxxxxxxx | |
| Name: Xxxx Xxxxxxxx | |||
| Title: Vice President | |||
| BEAR XXXXXXX FINANCIAL PRODUCTS, INC. | |||
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By:
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/s/ F. Xxxxx Xxxxxx | |
| Name: F. Xxxxx Xxxxxx | |||
| Title: DPC Manager | |||
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Addendum
A
Indemnification
(a) The
Derivative Provider shall indemnify IndyMac Bank FSB (“IndyMac” or the
“Sponsor”), the related Depositor and Issuing Entity, each person responsible
for the preparation, execution or filing of any report required to be filed
with
the Commission with respect to such Depositor or Issuing Entity, 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
of that
certain Item 1115 Agreement, dated as of November __, 2006, among
IndyMac
Bank FSB, the Depositor and the Derivative Provider (the
“Agreement”) by or on behalf of the Derivative Provider or
referenced via a website link or incorporated by reference in the
Registration Statement (including through filing on an Exchange
Act
Report) (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 Derivative Provider to deliver any information,
report,
certification, accountants’ letter or other material when and as required
under Section 2 of the Agreement, other than the information required
by
Sections 2(a)(ii) and 2(b)(ii) of the Agreement;
or
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(iii)
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any
breach by the Derivative Provider of a representation or warranty
set
forth in Section 3 of the Agreement 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 Derivative Provider 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 of performance described in clause 2 of this addendum,
the
Derivative Provider shall promptly reimburse the Depositor, the Sponsor or
the
Issuing Entity, as applicable, and each Person responsible for the preparation,
execution or filing of any report required to be filed with the Commission
with
respect to such Securitization Transaction, or for execution of a certification
pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act with
respect
to such Securitization Transaction, for all costs reasonably incurred by
each
such party in order to obtain the information, report, certification,
accountants’ letter or other material not delivered as required by the
Derivative Provider.
(b)
IndyMac Bank and the related Depositor shall indemnify the Derivative Provider,
each person who controls the Derivative Provider (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 (A) any untrue statement of a material
fact
contained or alleged to be contained in the related Free Writing Prospectus
or
Prospectus Supplement (other than the Company Information), or (B) the omission
or alleged omission to state in related Free Writing Prospectus or Prospectus
Supplement (other than the Company Information) a material fact required
to be
stated in the Free Writing Prospectus or Prospectus Supplement or necessary
in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
Capitalized
terms used and not otherwise defined in this addendum shall have the meanings
set forth in the Agreement.
10
