Exhibit 99.9
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The Item 1115 Agreement
Item 1115 Agreement dated as of May 30, 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 Deutsche Bank AG, New York Branch, as
counterparty (the "Counterparty").
RECITALS
WHEREAS, IndyMac MBS and IndyMac ABS each have filed Registration
Statements on Form S-3 (each, a "Registration Statement") with the Securities
and Exchange Commission (the "Commission") for purposes of offering mortgage
backed or asset-backed notes and/or certificates (the "Securities") through
special purpose vehicles (each, an "SPV").
WHEREAS, from time to time, on the closing date (the "Closing Date")
of a transaction pursuant to which Securities are offered (each, a
"Transaction"), the Counterparty and the SPV or an underwriter or dealer with
respect to the Transaction, enter into certain derivative agreements (each, a
"Derivative Agreement"), including interest rate or currency swaps, for purposes
of providing certain yield enhancements to the SPV or the related trustee on
behalf of the SPV or a swap or corridor contract administrator (each, an
"Administrator").
NOW, THEREFORE, in consideration of the mutual agreements set forth
herein and for other good and valuable consideration, the receipt and adequacy
of which is hereby acknowledged, the parties hereby agree as follows:
Section 1. Definitions
Company Information: As defined in Section 4(a)(i).
Company Financial Information: As defined in Section 2(a)(ii).
Depositor: Means IndyMac MBS and IndyMac ABS with respect to the
related Registration Statement for which the entity is the registrant.
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; and
(C) a description of the general character of the business of
the Counterparty;
(ii) if requested by the related Depositor for the purpose of
compliance with Item 1115(b) with respect to a Transaction (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 the Counterparty or any affiliate entity
providing derivative instruments to the SPV (a "Counterparty
Guarantor") (the "Company Financial
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Information"), in a form appropriate for use in the
Prospectus Supplement and in an XXXXX-compatible form (if
not incorporated by reference) and hereby authorizes the
related Depositor to incorporate by reference the financial
data required by Item 1115(b)(2) of Regulation AB; and
(B) if applicable, cause its accountants to issue their consent
to the filing or the incorporation by reference 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 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 (including Company Financial Information of any
Counterparty Guarantor) as required under Item 1115(b) of
Regulation AB to the related Depositor in an XXXXX-compatible
form (if not incorporated by reference) and hereby authorizes the
related Depositor to incorporate by reference the financial data
required by Item 1115(b)(2) of Regulation AB, and (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
(ii) 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 (including
Company Financial Information of any Counterparty Guarantor) as
required under Item 1115(b) of Regulation AB to the related
Depositor in an XXXXX-compatible form (if not incorporated by
reference) and hereby authorizes the related Depositor to
incorporate by reference the financial data required by Item
1115(b)(2) of Regulation AB, (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) as required under Item
1115(b) of Regulation AB to the related Depositor in an
XXXXX-compatible 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
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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) Each of the Counterparty, and, if applicable, any Company
Guarantor is required to file reports with the Commission
pursuant to section 13(a) or 15(d) of the Exchange Act.
(ii) Each of the Counterparty, and, if applicable, any Company
Guarantor has filed all reports and other materials required to
be filed by such requirements during the preceding 12 months (or
such shorter period that such party was required to file such
reports and materials).
(iii) Each of the reports filed by the Counterparty and, if
applicable, any Company Guarantor include (or properly
incorporate by reference) the financial statements of the
Counterparty or, if applicable, such Company Guarantor.
(iv) 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.
(v) 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 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
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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.
(vi) 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.
(vii) 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) If the Counterparty or a Counterparty Guarantor has provided Company
Financial Information that is incorporated by reference into the
Registration Statement of the related Depositor, the Counterparty or
such Counterparty Guarantor, so long as the related Depositor is
required to file Exchange Act Reports with respect to the SPV, will
file promptly all documents required to be filed with the Commission
pursuant to Section 13 or 14 of the Exchange Act. If permitted by the
Exchange Act, the related Depositor will take 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.
(c) If at any time the representations and warranties set forth in 3(a)(i)
through (iii) are no longer true and correct, the Counterparty or the
Counterparty Guarantor, as applicable, shall provide notice to the
related Depositor, and if any Company Financial Information is
required to be included in the Registration Statement, or the Exchange
Act Reports of the SPV, will provide to the related Depositor such
Company Financial Information in XXXXX-compatible format no later than
the 20th calendar day of the month in which any of the representations
or warranties in Section 3(a)(i) through (iii) ceased to be correct.
(d) 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
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a Derivative 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 related Depositor, each person
responsible for the preparation, execution or filing of any report
required to be filed with the Commission with respect to such SPV, or
for execution of a certification pursuant to Rule 13a-14(d) or Rule
15d-14(d) under the Exchange Act; each broker dealer acting as
underwriter, each person who controls any of such parties (within the
meaning of Section 15 of the Securities Act and Section 20 of the
Exchange Act); and the respective present and former directors,
officers, employees and agents of each of the foregoing, and shall
hold each of them harmless from and against any losses, damages,
penalties, fines, forfeitures, legal fees and expenses and related
costs, judgments, and any other costs, fees and expenses that any of
them may sustain arising out of or based upon:
(i) (A) any untrue statement of a material fact contained or alleged
to be contained in any information, report, 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 the Derivative Agreement
when and as required under Section 2; or
(iii) any breach by the Counterparty or any Counterparty Guarantor 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 or any Counterparty Guarantor of a representation or
warranty pursuant to Section 3 to the extent made as of a date
subsequent to the Closing Date.
In the case of any failure or such Counterparty Guarantor of
performance described in clause (a)(ii) of this Section, the
Counterparty shall promptly reimburse the related 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,
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certification, accountants' consent or other material not delivered
as required by the Counterparty.
(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 or any
Counterparty Guarantor 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 or any Counterparty Guarantor 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
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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 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
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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
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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
DEUTSCHE BANK AG, NEW YORK BRANCH
By: /s/ Xxxxxxxx Xxxx
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Name: Xxxxxxxx Xxxx
Title: Vice President
By: /s/ Xxxxxxx Xxxx
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Name: Xxxxxxx Xxxx
Title: Legal Counsel
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