EXHIBIT 99.7
Item 1115 Agreement
Item 1115 Agreement dated as of August 29, 2006 (this "Agreement"),
between IndyMac Bank, F.S.B., a federal savings bank ("IndyMac Bank"), IndyMac
MBS, Inc., a Delaware corporation ("IndyMac MBS" or the "Depositor"), and
Credit Suisse International, as counterparty (the "Counterparty").
RECITALS
WHEREAS, IndyMac MBS has filed a Registration Statement on Form
S-3 (the "Registration Statement") with the Securities and Exchange Commission
(the "Commission") for purposes of offering mortgage backed notes and/or
certificates (the "Securities") through Residential Asset Securitization Trust
2006-A11 (the "SPV").
WHEREAS, on the closing date (the "Closing Date") of the
transaction pursuant to which the Securities are offered (the "Transaction"),
the Counterparty and the SPV will enter a derivative agreement (the
"Derivative Agreement"), pursuant to which Counterparty and the SPV will enter
into multiple interest rate swaps (caps) 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 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 on behalf of the SPV), dated August 29, 2006.
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 Depositor such
information regarding the Counterparty, as a derivative
instrument counterparty, as is reasonably requested by the
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) if requested in writing by IndyMac Bank, a description
of any affiliation or relationship (as set forth in
Item 1119) between the Counterparty and any of the
following parties:
(1) Deutsche Bank National Trust Company;
(2) any originator identified to the Counterparty by
IndyMac Bank;
(3) any enhancement or support provider identified
to the Counterparty by IndyMac Bank; and
(4) any other material transaction party identified
to the Counterparty by IndyMac Bank.
(ii) if requested by the Depositor in the event the "significance
percentage" under Regulation AB equals or exceeds 8% (as
determined by IndyMac Bank in good faith) for the purpose of
compliance with Item 1115(b) with
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respect to a Transaction (prior to the 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 in form and substance
required by Item 1115(b)(1) or (b)(2) of Regulation AB
(as specified by the 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 or
incorporation by reference in the Prospectus
Supplement and, if applicable, in a form suitable for
conversion into an XXXXX-compliant 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, and
until the 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 IndyMac Bank in writing, then no later than
March 1 of each calendar year, the Counterparty shall (1)
notify the Depositor in writing of any affiliations or
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 Depositor) and (2) provide to the Depositor a
description of such affiliations or relationships as
described in Section 2(b)(i)(1);
(ii) if the Counterparty provided Company Financial Information
to the Depositor for the Prospectus Supplement, within 5
Business Days of the release of any updated financial data,
the Counterparty shall (1) provide current Company Financial
Information (including Company Financial Information of any
Counterparty Guarantor) in form and substance as required
under Item 1115(b) of Regulation AB to the Depositor for
incorporation by reference in the Exchange Act reports of
the Depositor or in a form suitable for conversion into an
XXXXX-compliant form, and (2) if applicable, cause its
accountants (and, 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 Depositor requests Company Financial Information from
the Counterparty, for the purpose of compliance with Item
1115(b) of Regulation AB following the Closing Date in the
event the "significance
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percentage" under Regulation AB equals or exceeds 8% (as
determined by IndyMac Bank in good faith), the Counterparty
shall upon five Business Days written notice either (A), (1)
provide current Company Financial Information (including
Company Financial Information of any Counterparty Guarantor)
in form and substance as required under Item 1115(b) of
Regulation AB to the Depositor for incorporation by
reference in the Exchange Act Reports of the Depositor or in
an XXXXX-compliant form, (2) if applicable, cause its
accountants (and, if applicable, the accountants of any
Counterparty Guarantor) to issue their consent to filing or
incorporation by reference of such financial statements in
the Exchange Act Reports of the SPV and (3) within 5
Business Days of the release of any updated financial data,
provide current Company Financial Information (including
Company Financial Information of any Counterparty Guarantor)
in form and substance as required under Item 1115(b) of
Regulation AB to the Depositor for incorporation by
reference in the Exchange Act Reports of the Depositor or in
a form suitable for conversion into an XXXXX-compliant form
and if applicable, cause its accountants (and, if
applicable, the accountants of any Counterparty Guarantor)
to issue their consent to filing or incorporation by
reference of such financial statements in the Exchange Act
Reports of the SPV or (B) assign the Derivative Agreement as
provided below or (c) if permissible under Regulation AB,
procure a guarantee of Counterparty's obligations under the
Derivative Agreement that meets the requirements of
Regulation AB.
Section 3. Representations and Warranties and Covenants of the Counterparty.
(a) The Counterparty represents and warrants to the Depositor,
as of the date on which information is first provided to the
Depositor under Section 2(a)(ii), Section 2(b)(ii) or
Section 2(b)(iii)(A), that, except as disclosed in writing
the Depositor prior to such date:
(i) The accountants who certify the financial statements
and supporting schedules included in the Company
Financial Information (including Company Financial
Information of any Counterparty Guarantor) (if
applicable) are independent registered public
accountants as required by the Securities Act.
(ii) If applicable, with respect to the Counterparty and
each Counterparty Guarantor, either (I) the financial
statements included in the Company Financial
Information present fairly the consolidated financial
position of the Counterparty or such Counterparty
Guarantor, as applicable and its consolidated
subsidiaries as at the dates indicated and the
consolidated results of their operations and cash
flows for the periods specified; except as otherwise
stated in the Company Financial Information, said
financial statements have been prepared in conformity
with generally accepted accounting principles ("GAAP")
applied on a consistent basis; and the
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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.
(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 the ISDA Master
Agreement so that the SPV who is a beneficiary of the ISDA
Master Agreement shall be an express third party beneficiary
of this Agreement.
Section 4. Indemnification; Remedies
(a) Each of the Counterparty and any Counterparty Guarantor shall
indemnify IndyMac Bank and the 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 the
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,
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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;
(ii) any failure by the Counterparty or any Counterparty
Guarantor to deliver any information, report, certification,
accountants' consent or other material or to assign or
procure a guarantee of (if permitted under Regulation AB)
the Derivative Agreement when and as required under Section
2; provided that this indemnity shall have effect only in
the event that the "significance percentage under Regulation
AB equals or exceeds 10% (as determined by IndyMac Bank in
good faith).
In the case of any failure by Counterparty or Counterparty
Guarantor of performance described in clause (a)(ii) of this
Section, the Counterparty shall promptly reimburse the Depositor
and each Person responsible for the preparation, execution or
filing of any report required to be filed with the Commission with
respect to such SPV, or for execution of a certification pursuant
to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act with
respect to the SPV, for all costs reasonably incurred by each such
party in order to obtain the information, report, certification,
accountants' consent or other material not delivered as required
by the Counterparty.
(b) In addition to the indemnification provisions above, the SPV (as a
third party beneficiary of this Agreement) will have the
additional remedies set forth in the Derivative Agreement.
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
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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.
(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 the SPV or any Administrator.
(e) Governing Law. This Agreement and, to the fullest extent permitted
by applicable law, all matters arising out of or relating in any
way to 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.
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(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.
(k) Waiver of Trial By Jury. Insofar as is permitted by law, each
party irrevocably waives any and all rights to trial by jury in
any legal proceeding in connection with this Agreement, and
acknowledges that this waiver is a material inducement to the
other party's entering into this Agreement hereunder.
(l) Jurisdiction. With respect to any suit, action or proceeding
relating to this Agreement, each party irrevocably submits to the
jurisdiction of courts in the State of New York and the United
States District Court located in the Borough of Manhattan in New
York City.
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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
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Name: Xxxx Xxxxxxxx
Title: Vice President
INDYMAC ABS, INC.
By: /s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
Title: Vice President
INDYMAC BANK, F.S.B.
By: /s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
Title: Vice President
CREDIT SUISSSE INTERNATIONAL
By:
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Name:
Title:
By:
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Name:
Title:
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