EXHIBIT 99.3
Item 1115 Agreement
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).
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. 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;
(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);
2
(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);
3
(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
4
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.
(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
5
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,
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
6
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).
(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
7
necessary. The parties shall reasonably cooperate with respect to
any amendments to this Agreement to reflect such amendment or
interpretation.
(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,
8
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.
9
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
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 Kopriewnicki
Title: Designated Signatory
10
