Exhibit 99.3
SCHEDULE
to the
Master Agreement
dated as of December 28, 2006
between
The Supplemental Interest Trust
created under the
and Pooling and Servicing Agreement for
Credit Suisse International IndyMac INDX Mortgage Loan Trust 2006-AR41, Mortgage
Pass-Through Certificates, Series 2006-AR41 by Deutsche Bank
National Trust Company, not individually, but solely as
supplemental interest trustee
--------------------------------- -----------------------------------------
("Party A") ("Party B")
Part 1. Termination Provisions.
For the purposes of this Agreement:-
(a) "Specified Entity" will not apply to Party A or Party B for any purpose.
(b) "Specified Transaction" will have the meaning specified in Section 14.
(c) Events of Default.
The statement below that an Event of Default will apply to a specific
party means that upon the occurrence of such an Event of Default with
respect to such party, the other party shall have the rights of a
Non-defaulting Party under Section 6 of this Agreement; conversely, the
statement below that such event will not apply to a specific party means
that the other party shall not have such rights.
(i) The "Failure to Pay or Deliver" provisions of Section 5(a)(i) will
apply to Party A and will apply to Party B; provided, further, that
notwithstanding anything to the contrary in Section 5(a)(i), any
failure by Party A to comply with or perform any obligation to be
complied with or performed by Party A under the Credit Support Annex
shall not constitute an Event of Default under Section 5(a)(i)
unless (A) (I) a Ratings Downgrade Event has occurred and been
continuing for 30 or more days or (II) a Required Ratings Downgrade
Event has occurred and is continuing, and (B) such failure is not
remedied on or before the third Local Business Day after notice of
such failure is given to Party A, in which case such failure shall
constitute an Additional Termination Event for which Party A will be
the sole Affected Party.
(ii) The "Breach of Agreement" provisions of Section 5(a)(ii) will apply
to Party A and will not apply to Party B.
(iii) The "Credit Support Default" provisions of Section 5(a)(iii) will
apply to Party A and will not apply to Party B except that Section
5(a)(iii)(1) will apply to Party B solely in respect of Party B's
obligations under Paragraph 3(b) of the Credit Support Annex;
provided, however, that notwithstanding anything to the contrary in
Section 5(a)(iii)(1), any failure by Party A to comply with
Indy Mac INDX Mortgage Loan Trust 2006-AR41 Schedule
or perform any obligation to be complied with or performed by Party
A under the Credit Support Annex shall not constitute an Event of
Default under Section 5(a)(iii) unless (A) (I) a Ratings Downgrade
Event has occurred and been continuing for 30 or more days or (II) a
Required Ratings Downgrade Event has occurred and is continuing, and
(B) such failure is not remedied on or before the third Local
Business Day after notice of such failure is given to Party A, in
which case such failure shall constitute an Additional Termination
Event for which Party A will be the sole Affected Party.
(iv) The "Misrepresentation" provisions of Section 5(a)(iv) will apply to
Party A and will not apply to Party B.
(v) The "Default under Specified Transaction" provisions of Section
5(a)(v) will apply to Party A and will not apply to Party B.
(vi) The "Cross Default" provisions of Section 5(a)(vi) will apply to
Party A and will not apply to Party B. For purposes of Section
5(a)(vi), solely with respect to Party A:
"Specified Indebtedness" will have the meaning specified in Section
14.
"Threshold Amount" means with respect to Party A an amount equal to
three percent (3%) of the Shareholders' Equity of Party A or, if
applicable, the Eligible Guarantor.
"Shareholders' Equity" means with respect to an entity, at any time,
the sum (as shown in the most recent annual audited financial
statements of such entity) of (i) its capital stock (including
preferred stock) outstanding, taken at par value, (ii) its capital
surplus and (iii) its retained earnings, minus (iv) treasury stock,
each to be determined in accordance with generally accepted
accounting principles.
(vii) The "Bankruptcy" provisions of Section 5(a)(vii) will apply to
Party A and will apply to Party B except that the provisions of
Section 5(a)(vii)(2), (6) (to the extent that such provisions refer
to any appointment contemplated or effected by the Pooling and
Servicing Agreement or any appointment to which Party B has not
become subject), (7) and (9) will not apply to Party B; provided
that, with respect to Party B only, Section 5(a)(vii)(4) is hereby
amended by adding after the words "against it" the words "(excluding
any proceeding or petition instituted or presented by Party A or its
Affiliates)", and Section 5(a)(vii)(8) is hereby amended by deleting
the words "to (7) inclusive" and inserting lieu thereof ", (3), (4)
as amended, (5), (6) as amended, or (7)".
(viii) The "Merger Without Assumption" provisions of Section 5(a)(viii)
will apply to Party A and will apply to Party B.
(d) Termination Events.
The statement below that a Termination Event will apply to a specific
party means that upon the occurrence of such a Termination Event, if such
specific party is the Affected Party with respect to a Tax Event, the
Burdened Party with respect to a Tax Event Upon Merger (except as noted
below) or the non-Affected Party with respect to a Credit Event Upon
Merger, as the case may be, such specific party shall have the right to
designate an Early Termination Date in accordance with Section 6 of this
Agreement; conversely, the statement below that such an event will not
apply to a specific party means that such party shall not have such
right; provided, however, with respect to "Illegality" the statement that
such event will apply to a specific party means that upon the occurrence
of such a Termination Event with respect to such party, either party
shall have the right to designate an Early Termination Date in accordance
with Section 6 of this Agreement.
(i) The "Illegality" provisions of Section 5(b)(i) will apply to Party A
and will apply to Party B.
(ii) The "Tax Event" provisions of Section 5(b)(ii) will apply to Party A
except that, for purposes of the application of Section 5(b)(ii) to
Party A, Section 5(b)(ii) is hereby amended by deleting the words
"(x) any action taken by a taxing authority, or brought in a court
of competent jurisdiction, on or after the date on which a
Transaction is entered into (regardless of whether such action is
taken or brought with respect to a party to this Agreement) or (y)",
and the "Tax Event" provisions of Section 5(b)(ii) will apply to
Party B.
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(iii) The "Tax Event Upon Merger" provisions of Section 5(b)(iii) will
apply to Party A and will apply to Party B, provided that Party A
shall not be entitled to designate an Early Termination Date by
reason of a Tax Event upon Merger in respect of which it is the
Affected Party.
(iv) The "Credit Event Upon Merger" provisions of Section 5(b)(iv) will
not apply to Party A and will not apply to Party B.
(e) The "Automatic Early Termination" provision of Section 6(a) will not
apply to Party A and will not apply to Party B.
(f) Payments on Early Termination. For the purpose of Section 6(e) of this
Agreement:
(i) Market Quotation will apply, provided, however, that, in the event
of a Derivative Provider Trigger Event, the following provisions
will apply:
(A) The definition of Market Quotation in Section 14 shall be
deleted in its entirety and replaced with the following:
"Market Quotation" means, with respect to one or more
Terminated Transactions, a Firm Offer which is (1) made by a
Reference Market-maker that is an Eligible Replacement, (2) for
an amount that would be paid to Party B (expressed as a
negative number) or by Party B (expressed as a positive number)
in consideration of an agreement between Party B and such
Reference Market-maker to enter into a Replacement Transaction,
and (3) made on the basis that Unpaid Amounts in respect of the
Terminated Transaction or group of Transactions are to be
excluded but, without limitation, any payment or delivery that
would, but for the relevant Early Termination Date, have been
required (assuming satisfaction of each applicable condition
precedent) after that Early Termination Date is to be included.
(B) The definition of Settlement Amount shall be deleted in its
entirety and replaced with the following:
"Settlement Amount" means, with respect to any Early
Termination Date, an amount (as determined by Party B) equal
to:
(a) If a Market Quotation for the relevant Terminated
Transaction or group of Terminated Transactions is
accepted by Party B so as to become legally binding on or
before the day falling ten Local Business Days after the
day on which the Early Termination Date is designated, or
such later day as Party B may specify in writing to Party
A, but in either case no later than one Local Business Day
prior to the Early Termination Date (such day, the "Latest
Settlement Amount Determination Day"), the Termination
Currency Equivalent of the amount (whether positive or
negative) of such Market Quotation;
(b) If, on the Latest Settlement Amount Determination Day, no
Market Quotation for the relevant Terminated Transaction
or group of Terminated Transactions has been accepted by
Party B so as to become legally binding and one or more
Market Quotations from Approved Replacements have been
made and remain capable of becoming legally binding upon
acceptance, the Settlement Amount shall equal the
Termination Currency Equivalent of the amount (whether
positive or negative) of the lowest of such Market
Quotations (for the avoidance of doubt, the lowest of such
Market Quotations shall be the lowest Market Quotation of
such Market Quotations expressed as a positive number or,
if any of such Market Quotations is expressed as a
negative number, the Market Quotation expressed as a
negative number with the largest absolute value); or
(c) If, on the Latest Settlement Amount Determination Day, no
Market Quotation for the relevant Terminated Transaction
or group of Terminated Transactions is accepted by
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Party B so as to become legally binding and no Market
Quotation from an Approved Replacement remains capable of
becoming legally binding upon acceptance, the Settlement
Amount shall equal Party B's Loss (whether positive or
negative and without reference to any Unpaid Amounts) for
the relevant Terminated Transaction or group of Terminated
Transactions.
(C) If Party B requests Party A in writing to obtain Market
Quotations, Party A shall use its reasonable efforts to do so
before the Latest Settlement Amount Determination Day.
(D) If the Settlement Amount is a negative number, Section
6(e)(i)(3) shall be deleted in its entirety and replaced with
the following:
"(3) Second Method and Market Quotation. If the Second Method
and Market Quotation apply, (I) Party B shall pay to Party A an
amount equal to the absolute value of the Settlement Amount in
respect of the Terminated Transactions, (II) Party B shall pay
to Party A the Termination Currency Equivalent of the Unpaid
Amounts owing to Party A and (III) Party A shall pay to Party B
the Termination Currency Equivalent of the Unpaid Amounts owing
to Party B; provided, however, that (x) the amounts payable
under the immediately preceding clauses (II) and (III) shall be
subject to netting in accordance with Section 2(c) of this
Agreement and (y) notwithstanding any other provision of this
Agreement, any amount payable by Party A under the immediately
preceding clause (III) shall not be netted-off against any
amount payable by Party B under the immediately preceding
clause (I)."
(E) At any time on or before the Latest Settlement Amount
Determination Day at which two or more Market Quotations from
Approved Replacements remain capable of becoming legally
binding upon acceptance, Party B shall be entitled to accept
only the lowest of such Market Quotations (for the avoidance of
doubt, the lowest of such Market Quotations shall be the lowest
Market Quotation of such Market Quotations expressed as a
positive number or, if any of such Market Quotations is
expressed as a negative number, the Market Quotation expressed
as a negative number with the largest absolute value).
(ii) The Second Method will apply.
(g) "Termination Currency" means USD.
(h) Additional Termination Events. Additional Termination Events will apply
as provided in Part 5(c).
Indy Mac INDX Mortgage Loan Trust 2006-AR41 Schedule
Part 2. Tax Matters.
(a) Tax Representations.
(i) Payer Representations. For the purpose of Section 3(e) of this
Agreement:
(A) Party A makes the following representation(s):
None.
(B) Party B makes the following representation(s):
None.
(ii) Payee Representations. For the purpose of Section 3(f) of this
Agreement:
(A) Party A makes the following representation(s):
None.
(B) Party B makes the following representation(s):
None.
(b) Tax Provisions.
(i) Gross Up. Section 2(d)(i)(4) shall not apply to Party B as X, and
Section 2(d)(ii) shall not apply to Party B as Y, in each case such
that Party B shall not be required to pay any additional amounts
referred to therein.
(ii) Indemnifiable Tax. The definition of "Indemnifiable Tax" in Section
14 is deleted in its entirety and replaced with the following:
"Indemnifiable Tax" means, in relation to payments by Party A, any
Tax and, in relation to payments by Party B, no Tax.
Indy Mac INDX Mortgage Loan Trust 2006-AR41 Schedule
Part 3. Agreement to Deliver Documents.
(a) For the purpose of Section 4(a)(i), tax forms, documents, or certificates
to be delivered are:
Party required to Form/Document/ Date by which to
deliver document Certificate be delivered
Party A An original properly completed and executed United (i) upon execution of this Agreement, (ii) on or
States Internal Revenue Service Form W-8IMY before the first payment date under this
including applicable attachments (or any successor Agreement, including any Credit Support Document,
thereto) with respect to any payments received or (iii) promptly upon the reasonable demand by Party
to be received by Party A that eliminates U.S. B, (iv) prior to the expiration or obsolescence of
federal withholding and backup withholding Tax on any previously delivered form, and (v) promptly
payments to Party A under this Agreement. upon the information on any such previously
delivered form becoming inaccurate or incorrect.
Party B (i) Upon execution of this Agreement, a United (i) upon execution of this Agreement, (ii) on or
States Internal Revenue Service Form W-9 (or any before the first payment date under this
successor thereto) with respect to any payments Agreement, including any Credit Support Document,
received or to be received by the initial (iii) in the case of a tax certification form
beneficial owner of payments to Party B under this other than a Form W-9, before December 31 of each
Agreement, and (ii) thereafter, the appropriate third succeeding calendar year, (iv) promptly upon
tax certification form (i.e., IRS Form W-9 or IRS the reasonable demand by Party B, (v) prior to the
Form W-8BEN, W-8IMY, W-8EXP or W-8ECI, as expiration or obsolescence of any previously
applicable (or any successor form thereto)) with delivered form, and (vi) promptly upon the
respect to any payments received or to be received information on any such previously delivered form
by the beneficial owner of payments to Party B becoming inaccurate or incorrect.
under this Agreement from time to time.
Indy Mac INDX Mortgage Loan Trust 2006-AR41 Schedule
(b) For the purpose of Section 4(a)(ii), other documents to be delivered are:
Party required to Form/Document/ Date by which to Covered by
deliver Certificate be delivered Section 3(d)
document Representation
Party A and Any documents required by the Upon the execution and delivery of Yes
Party B receiving party to evidence the this Agreement
authority of the delivering party
or its Credit Support Provider, if
any, for it to execute and deliver
the Agreement, this Confirmation, and
any Credit Support Documents to which
it is a party, and to evidence the
authority of the delivering party or
its Credit Support Provider to perform
its obligations under the Agreement,
this Confirmation and any Credit Support
Document, as the case may be
Party A and A certificate of an authorized officer Upon the execution and delivery of Yes
Party B of the party, as to the incumbency and this Agreement
authority of the respective officers
of the party signing the Agreement,
this Confirmation, and any relevant
Credit Support Document, as the case
may be
Party A An opinion of counsel to Party A as to Upon the execution and delivery of No
the enforceability of this Agreement this Agreement
in a form that is reasonably
satisfactory to Party B.
Part 4. Miscellaneous.
(a) Address for Notices: For the purposes of Section 12(a) of this Agreement:
Address for notices or communications to Party A:
Address: One Cabot Square Attention: (1) Head of Credit Risk Management;
Xxxxxx X00 0XX (2) Managing Director -
England Operations Department;
(3) Managing Director - Legal Department
Telex No.: 264521 Answerback: CSI G
(For all purposes)
Address for notices or communications to Party B:
Address: IndyMac INDX Mortgage Loan Trust 0000-XX00
x/x Xxxxxxxx Bank National Trust Company
0000 Xxxx Xx. Xxxxxx Xxxxx,
Xxxxx Xxx, Xxxxxxxxxx 00000-0000,
Attention: Trust Administration: IN06Z3
Facsimile: 000-000-0000
Indy Mac INDX Mortgage Loan Trust 2006-AR41 Schedule
Phone: 000-000-0000
(For all purposes)
(b) Process Agent. For the purpose of Section 13(c):
Party A appoints as its Process Agent: Credit Suisse Securities (USA) LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
Legal and Compliance Department
Party B appoints as its Process Agent: Not applicable.
(c) Offices. The provisions of Section 10(a) will apply to this Agreement;
neither Party A nor Party B has any Offices other than as set forth in
the Notices Section and Party A agrees that, for purposes of Section 6(b)
of this Agreement, it shall not in the future have any Office other than
one in the United States.
(d) Multibranch Party. For the purpose of Section 10(c) of this Agreement:
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
(e) Calculation Agent. The Calculation Agent is Party A.
(f) Credit Support Document.
Party A: The Credit Support Annex, and any guarantee in
support of Party A's obligations under this
Agreement.
Party B: The Credit Support Annex, solely in respect of
Party B's obligations under Paragraph 3(b) of the
Credit Support Annex.
(g) Credit Support Provider.
Party A: The guarantor under any guarantee in support of Party A's
obligations under this Agreement.
Party B: None.
(h) Governing Law. The parties to this Agreement hereby agree that the law of
the State of New York shall govern their rights and duties in whole,
without regard to the conflict of law provisions thereof other than New
York General Obligations Law Sections 5-1401 and 5-1402.
(i) Netting of Payments. The parties agree that subparagraph (ii) of Section
2(c) will apply to each Transaction hereunder.
(j) Affiliate. "Affiliate" shall have the meaning assigned thereto in Section
14; provided, however, that Party B shall be deemed to have no Affiliates
for purposes of this Agreement, including for purposes of Section
6(b)(ii).
Indy Mac INDX Mortgage Loan Trust 2006-AR41 Schedule
Part 5. Others Provisions.
(a) Definitions. Unless otherwise specified in a Confirmation, this Agreement
and each Transaction under this Agreement are subject to the 2000 ISDA
Definitions as published and copyrighted in 2000 by the International
Swaps and Derivatives Association, Inc. (the "Definitions"), and will be
governed in all relevant respects by the provisions set forth in the
Definitions, without regard to any amendment to the Definitions
subsequent to the date hereof. The provisions of the Definitions are
hereby incorporated by reference in and shall be deemed a part of this
Agreement, except that (i) references in the Definitions to a "Swap
Transaction" shall be deemed references to a "Transaction" for purposes
of this Agreement, and (ii) references to a "Transaction" in this
Agreement shall be deemed references to a "Swap Transaction" for purposes
of the Definitions. Each term capitalized but not defined in this
Agreement shall have the meaning assigned thereto in the Pooling and
Servicing Agreement.
(b) Amendments to ISDA Master Agreement.
(i) Single Agreement. Section 1(c) is hereby amended by the adding the
words "including, for the avoidance of doubt, the Credit Support
Annex" after the words "Master Agreement".
(ii) Conditions Precedent. Section 2(a)(iii) is hereby amended by adding
the following at the end thereof:
Notwithstanding anything to the contrary in Section 2(a)(iii)(1), if
an Event of Default with respect to Party B or Potential Event of
Default with respect to Party B has occurred and been continuing for
more than 30 Local Business Days and no Early Termination Date in
respect of the Affected Transactions has occurred or been
effectively designated by Party A, the obligations of Party A under
Section 2(a)(i) shall cease to be subject to the condition precedent
set forth in Section 2(a)(iii)(1) with respect to such specific
occurrence of such Event of Default or such Potential Event of
Default (the "Specific Event"); provided, however, for the avoidance
of doubt, the obligations of Party A under Section 2(a)(i) shall be
subject to the condition precedent set forth in Section 2(a)(iii)(1)
(subject to the foregoing) with respect to any subsequent occurrence
of the same Event of Default with respect to Party B or Potential
Event of Default with respect to Party B after the Specific Event
has ceased to be continuing and with respect to any occurrence of
any other Event of Default with respect to Party B or Potential
Event of Default with respect to Party B that occurs subsequent to
the Specific Event.
(iii) Change of Account. Section 2(b) is hereby amended by the addition
of the following after the word "delivery" in the first line
thereof:
"to another account in the same legal and tax jurisdiction as the
original account".
(iv) Representations. Section 3 is hereby amended by adding at the end
thereof the following subsection (g):
"(g) Relationship Between Parties.
(1) Nonreliance. (i) It is not relying on any statement or
representation of the other party regarding the
Transaction (whether written or oral), other than the
representations expressly made in this Agreement or the
Confirmation in respect of that Transaction and (ii) it
has consulted with its own legal, regulatory, tax,
business, investment, financial and accounting advisors to
the extent it has deemed necessary, and it has made its
own investment, hedging and trading decisions based upon
its own judgment and upon any advice from such advisors as
it has deemed necessary and not upon any view expressed by
the other party.
(2) Evaluation and Understanding. (i) It has the capacity to
evaluate (internally or through independent professional
advice) the Transaction and has made its own decision to
enter into the Transaction and (ii) It understands the
terms, conditions
Indy Mac INDX Mortgage Loan Trust 2006-AR41 Schedule
and risks of the Transaction and is willing and able to
accept those terms and conditions and to assume those
risks, financially and otherwise.
(3) Purpose. It is entering into the Transaction for the
purposes of managing its borrowings or investments,
hedging its underlying assets or liabilities or in
connection with a line of business.
(4) Status of Parties. The other party is not acting as an
agent, fiduciary or advisor for it in respect of the
Transaction.
(5) Eligible Contract Participant. It is an "eligible swap
participant" as such term is defined in, Section
35.1(b)(2) of the regulations (17 C.F.R. 35) promulgated
under, and an "eligible contract participant" as defined
in Section 1(a)(12) of the Commodity Exchange Act, as
amended."
(v) Transfer to Avoid Termination Event. Section 6(b)(ii) is hereby
amended by (i) deleting the words "or if a Tax Event Upon Merger
occurs and the Burdened Party is the Affected Party," and (ii) by
deleting the words "to transfer" and inserting the words "to effect
a Permitted Transfer" in lieu thereof.
(vi) Jurisdiction. Section 13(b) is hereby amended by: (i) deleting in
the second line of subparagraph (i) thereof the word "non-", (ii)
deleting "; and" from the end of subparagraph (i) and inserting "."
in lieu thereof, and (iii) deleting the final paragraph thereof.
(vii) Local Business Day. The definition of Local Business Day in Section
14 is hereby amended by the addition of the words "or any Credit
Support Document" after "Section 2(a)(i)" and the addition of the
words "or Credit Support Document" after "Confirmation".
(c) Additional Termination Events. The following Additional Termination
Events will apply:
(i) Counterparty Rating Agency Downgrade. If a Ratings Downgrade Event
or a Required Ratings Downgrade Event has occurred and is continuing
and Party A fails to take any action described in Part (5)(d) within
the time period specified therein, then an Additional Termination
Event shall have occurred, with respect to which Party A shall be
the sole Affected Party.
(ii) [Reserved].
(iii) Optional Termination of Securitization. An Additional Termination
Event shall occur upon the earlier of the occurrence of an Optional
Termination pursuant to the Pooling and Servicing Agreement or
notice to Certificateholders of such Optional Termination becoming
unrescindable in accordance with Article IX of the Pooling and
Servicing Agreement. Party B shall be the sole Affected Party with
respect to such Additional Termination Event; provided, however,
that notwithstanding anything to the contrary in Section 6(b)(iv),
only Party B may designate an Early Termination Date in respect of
this Additional Termination Event.
(iv) Failure to Comply with Item 1115 Agreement. The parties agree that
any failure by Party A to comply with the Item 1115 Agreement (as
defined below) shall constitute an Additional Termination Event for
which Party A shall be the sole Affected Party.
(d) Counterparty Rating Agency Downgrade. If a Relevant Entity no longer has
credit ratings at least equal to the Ratings Threshold, then Party A
shall, as soon as reasonably practicable (but no later than the 30th day
following the Ratings Downgrade Event), at its own expense, using
commercially reasonable efforts, either (A) procure a Permitted Transfer,
(B) procure an Eligible Guarantee from an Eligible Guarantor, (C) post
collateral under the Credit Support Annex attached hereto and made a part
hereof or (D) restore its credit ratings to at least the Ratings
Threshold; provided, however that Party A will be required to take the
actions in clauses (A)-(D) above immediately upon the occurrence of a
Required Ratings Downgrade Event.
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(e) Item 1115 Agreement. Party A and Party B hereby agree that the terms of
the Item 1115 Agreement, dated as of December 28, 2006 (the "Item 1115
Agreement"), among Party A, IndyMac Bank, F.S.B. and IndyMac MBS, Inc,
shall be incorporated by reference into this Agreement and Party B shall
be an express third party beneficiary of the Item 1115 Agreement. A copy
of the Item 1115 Agreement is annexed hereto at Annex B.
(f) Transfers.
(i) Section 7 is hereby amended to read in its entirety as follows:
"Except with respect to any Permitted Transfer pursuant to Section
6(b)(ii), Part 5(d), Part 5(e), or the succeeding sentence, neither
Party A nor Party B is permitted to assign, novate or transfer
(whether by way of security or otherwise) as a whole or in part any
of its rights, obligations or interests under the Agreement or any
Transaction unless (a) the prior written consent of the other party
is obtained, and (b) Rating Agency Notice has been provided to the
Cap Rating Agencies. At any time at which no Relevant Entity has
credit ratings at least equal to the Ratings Threshold, Party A may
make a Permitted Transfer."
(ii) If an Eligible Replacement has made a Firm Offer (which remains an
offer that will become legally binding upon acceptance by Party B)
to be the transferee pursuant to a Permitted Transfer, Party B
shall, at Party A's written request and at Party A's expense, take
any reasonable steps required to be taken by Party B to effect such
transfer.
(g) Non-Recourse. Party A acknowledges and agrees that, notwithstanding any
provision in this Agreement to the contrary, the obligations of Party B
hereunder are limited recourse obligations of Party B, payable solely
from the Supplemental Interest Trust and the proceeds thereof, in
accordance with the priority of payments and other terms of the Pooling
and Servicing Agreement and that Party A will not have any recourse to
any of the directors, officers, employees, shareholders or affiliates of
the Party B with respect to any claims, losses, damages, liabilities,
indemnities or other obligations in connection with any transactions
contemplated hereby. In the event that the Supplemental Interest Trust
and the proceeds thereof, should be insufficient to satisfy all claims
outstanding and following the realization of the account held by the
Supplemental Interest Trust and the proceeds thereof, any claims against
or obligations of Party B under the ISDA Master Agreement or any other
confirmation thereunder still outstanding shall be extinguished and
thereafter not revive. The Supplemental Interest Trust Trustee shall not
have liability for any failure or delay in making a payment hereunder to
Party A due to any failure or delay in receiving amounts in the account
held by the Supplemental Interest Trust from the Trust created pursuant
to the Pooling and Servicing Agreement. This provision will survive the
termination of this Agreement.
(h) [Reserved].
(i) Rating Agency Notifications. Notwithstanding any other provision of this
Agreement, no Early Termination Date shall be effectively designated
hereunder by Party B and no transfer of any rights or obligations under
this Agreement shall be made by either party unless each Cap Rating
Agency has been given prior written notice of such designation or
transfer.
(j) No Set-off. Except as expressly provided for in Section 2(c), Section 6
or Part 1(f)(i)(D) hereof, and notwithstanding any other provision of
this Agreement or any other existing or future agreement, each party
irrevocably waives any and all rights it may have to set off, net, recoup
or otherwise withhold or suspend or condition payment or performance of
any obligation between it and the other party hereunder against any
obligation between it and the other party under any other agreements.
Section 6(e) shall be amended by deleting the following sentence: "The
amount, if any, payable in respect of an Early Termination Date and
determined pursuant to this Section will be subject to any Set-off.".
(k) Amendment. Notwithstanding any provision to the contrary in this
Agreement, no amendment of either this Agreement or any Transaction under
this Agreement shall be permitted by either party unless each of the Cap
Rating Agencies has been provided prior written notice of the same.
Indy Mac INDX Mortgage Loan Trust 2006-AR41 Schedule
(l) Notice of Certain Events or Circumstances. Each Party agrees, upon
learning of the occurrence or existence of any event or condition that
constitutes (or that with the giving of notice or passage of time or both
would constitute) an Event of Default or Termination Event with respect
to such party, promptly to give the other Party and to each Cap Rating
Agency notice of such event or condition; provided that failure to
provide notice of such event or condition pursuant to this Part 5(l)
shall not constitute an Event of Default or a Termination Event.
(m) Proceedings. No Relevant Entity shall institute against, or cause any
other person to institute against, or join any other person in
instituting against Party B, the Supplemental Interest Trust, or the
trust formed pursuant to the Pooling and Servicing Agreement, in any
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings or other proceedings under any federal or state bankruptcy or
similar law for a period of one year (or, if longer, the applicable
preference period) and one day following payment in full of the
Certificates and any Notes. This provision will survive the termination
of this Agreement.
(n) Supplemental Interest Trust Trustee Liability Limitations. It is
expressly understood and agreed by the parties hereto that (a) this
Agreement is executed by Deutsche Bank National Trust Company ("Deutsche
Bank") not in its individual capacity, but solely as Supplemental
Interest Trustee under the Pooling and Servicing Agreement in the
exercise of the powers and authority conferred and invested in it
thereunder; (b) Deutsche Bank has been directed pursuant to the Pooling
and Servicing Agreement to enter into this Agreement and to perform its
obligations hereunder; (c) each of the representations, undertakings and
agreements herein made on behalf of the Supplemental Interest Trust is
made and intended not as personal representations of the Supplemental
Interest Trustee but is made and intended for the purpose of binding only
the Supplemental Interest Trust; and (d) under no circumstances shall
Deutsche Bank in its individual capacity be personally liable for any
payments hereunder or for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken under this
Agreement.
(o) Severability. If any term, provision, covenant, or condition of this
Agreement, or the application thereof to any party or circumstance, shall
be held to be invalid or unenforceable (in whole or in part) in any
respect, the remaining terms, provisions, covenants, and conditions
hereof shall continue in full force and effect as if this Agreement had
been executed with the invalid or unenforceable portion eliminated, so
long as this Agreement as so modified continues to express, without
material change, the original intentions of the parties as to the subject
matter of this Agreement and the deletion of such portion of this
Agreement will not substantially impair the respective benefits or
expectations of the parties; provided, however, that this severability
provision shall not be applicable if any provision of Section 2, 5, 6, or
13 (or any definition or provision in Section 14 to the extent it relates
to, or is used in or in connection with any such Section) shall be so
held to be invalid or unenforceable.
The parties shall endeavor to engage in good faith negotiations to
replace any invalid or unenforceable term, provision, covenant or
condition with a valid or enforceable term, provision, covenant or
condition, the economic effect of which comes as close as possible to
that of the invalid or unenforceable term, provision, covenant or
condition.
(p) Escrow Payments. If (whether by reason of the time difference between the
cities in which payments or deliveries are to be made or otherwise) it is
not possible for simultaneous payments or deliveries to be made on any
date on which both parties are required to make payments or deliveries
hereunder, either party may at its option and in its sole discretion
notify the other party (section 2(b) of this Agreement notwithstanding)
that payments or deliveries on that date are to be made in escrow (such
party being the "Appointing Party"). In this case, deposit of the payment
or delivery due earlier on that date will be made by 2.00 pm (local time
at the place for the earlier payment or delivery) on that date with an
escrow agent selected by the Appointing Party, accompanied by irrevocable
payment or delivery instructions (i) to release the deposited payment or
delivery to the intended recipient upon receipt by the escrow agent of
the required deposit of the corresponding payment or delivery from the
other party on the same date accompanied by irrevocable payment or
delivery instructions to the same effect, or (ii) if the required deposit
of the corresponding payment or delivery is not made on that same date,
to return the payment or delivery deposited to the party that paid or
delivered it into escrow. The Appointing Party will pay all costs of the
escrow arrangements. The Appointing Party will bear the risk of any
failure of the bank it nominates to be its escrow agent to fully and
promptly perform the obligations of such escrow agent as contemplated in
this Part 5(p) Any amounts payable or deliveries to be made under this
Agreement by the Appointing Party which are not received by the other
party hereto on the due date will remain
Indy Mac INDX Mortgage Loan Trust 2006-AR41 Schedule
due and payable or to be made by the Appointing Party as of such date
(assuming timely payment or delivery on the due date of amounts payable
or deliveries to be made by the other party hereto). Any amounts or
deliveries due from the other party, which have been paid or delivered to
the escrow agent in accordance with this Part 5(s) (and any instructions
in connection therewith given to the other party by the Appointing Party)
shall be treated as having been paid or delivered by such other party and
received by the Appointing Party as of the date on which they were paid
or delivered to the Appointing Party's escrow agent. The Appointing Party
shall cause the escrow arrangements to provide that the other party shall
be entitled to interest on any payment due to be deposited first for each
day in the period of its deposit at the rate offered by the escrow agent
for that day for overnight deposits in the relevant currency in the
office where it holds that deposited payment (at 11:00 a.m. local time on
that day) if that payment is not released by to the other party 5:00 p.m.
local time on the date it is deposited for any reason other than the
intended recipient's failure to make the escrow deposit it is required to
make under this paragraph in a timely fashion.
(q) Consent to Recording. Each party hereto consents to the monitoring or
recording, at any time and from time to time, by the other party of any
and all communications between trading, marketing, and operations
personnel of the parties and their Affiliates, waives any further notice
of such monitoring or recording, and agrees to notify such personnel of
such monitoring or recording.
(r) Waiver of Jury Trial. Each party waives any right it may have to a trial
by jury in respect of any in respect of any suit, action or proceeding
relating to this Agreement or any Credit Support Document.
(s) Payment Instructions. Party A hereby agrees that, unless notified in
writing by Party B of other payment instructions, any and all amounts
payable by Party A to Party B under this Agreement shall be paid to the
account specified in Item 3 of this Confirmation, below.
(t) Additional representations.
(i) Representations of Party A. Party A represents to Party B on the
date on which Party A enters into each Transaction that:--
(1) Party A's obligations under this Agreement rank pari passu with
all of Party A's other unsecured, unsubordinated obligations
except those obligations preferred by operation of law.
(2) Party A is an English bank and is regulated as a European Union
credit institution by the Financial Services Authority under
the Financial Servicers and Markets Xxx 0000.
(ii) Capacity. Party A represents to Party B on the date on which Party A
enters into this Agreement that it is entering into the Agreement
and the Transaction as principal and not as agent of any person.
Party B represents to Party A on the date on which Party B enters
into this Agreement that it is entering into the Agreement and the
Transaction in its capacity as Supplemental Interest Trustee.
(u) Acknowledgements.
(i) Substantial financial transactions. Each party hereto is hereby
advised and acknowledges as of the date hereof that the other party
has engaged in (or refrained from engaging in) substantial financial
transactions and has taken (or refrained from taking) other material
actions in reliance upon the entry by the parties into the
Transaction being entered into on the terms and conditions set forth
herein and in the Pooling and Servicing Agreement relating to such
Transaction, as applicable. This paragraph shall be deemed repeated
on the trade date of each Transaction.
(ii) Bankruptcy Code. Subject to Part 5(m), without limiting the
applicability if any, of any other provision of the U.S. Bankruptcy
Code as amended (the "Bankruptcy Code") (including without
limitation Sections 362, 546, 556, and 560 thereof and the
applicable definitions in Section 101 thereof), the parties
acknowledge and agree that all Transactions entered into hereunder
will constitute "forward contracts" or "swap agreements" as defined
in Section 101 of the Bankruptcy Code or "commodity contracts" as
defined in Section 761 of the Bankruptcy Code, that the rights of
the parties under Section 6 of this Agreement will constitute
contractual rights to liquidate Transactions, that any
Indy Mac INDX Mortgage Loan Trust 2006-AR41 Schedule
margin or collateral provided under any margin, collateral,
security, pledge, or similar agreement related hereto will
constitute a "margin payment" as defined in Section 101 of the
Bankruptcy Code, and that the parties are entities entitled to the
rights under, and protections afforded by, Sections 362, 546, 556,
and 560 of the Bankruptcy Code.
(v) Additional Definitions.
As used in this Agreement, the following terms shall have the meanings
set forth below, unless the context clearly requires otherwise:
"Approved Replacement" means, with respect to a Market Quotation, an
entity making such Market Quotation, which entity would satisfy
conditions (a), (b), and (c) of the definition of Permitted Transfer
(as determined by Party B in its sole discretion, acting in a
commercially reasonable manner) if such entity were a Transferee, as
defined in the definition of Permitted Transfer.
"Cap Rating Agencies" means, with respect to any date of
determination, each of S&P and Moody's, to the extent that each such
rating agency is then providing a rating for any of the IndyMac INDX
Mortgage Loan Trust 2006-AR41, Mortgage Pass-Through Certificates,
Series 2006-AR41 (the "Certificates") or any notes backed by the
Certificates (the "Notes").
"Derivative Provider Trigger Event" means (i) an Event of Default
with respect to which Party A is a Defaulting Party, (ii) a
Termination Event with respect to which Party A is the sole Affected
Party or (iii) an Additional Termination Event with respect to which
Party A is the sole Affected Party.
"Eligible Guarantee" means an unconditional and irrevocable
guarantee of all present and future obligations (for the avoidance
of doubt, not limited to payment obligations) of Party A or an
Eligible Replacement to Party B under this Agreement that is
provided by an Eligible Guarantor as principal debtor rather than
surety and that is directly enforceable by Party B, Rating Agency
Notice of the form and substance of which guarantee has been
provided to the Cap Rating Agencies, and either (A) a law firm has
given a legal opinion confirming that none of the guarantor's
payments to Party B under such guarantee will be subject to Tax
collected by withholding or (B) such guarantee provides that, in the
event that any of such guarantor's payments to Party B are subject
to Tax collected by withholding, such guarantor is required to pay
such additional amount as is necessary to ensure that the net amount
actually received by Party B (free and clear of any Tax collected by
withholding) will equal the full amount Party B would have received
had no such withholding been required.
"Eligible Guarantor" means an entity that (A) has credit ratings
from S&P at least equal to the S&P and Ratings Threshold and (B) has
credit ratings from Moody's at least equal to the Moody's Ratings
Threshold, provided, for the avoidance of doubt, that an Eligible
Guarantee of an Eligible Guarantor with credit ratings below the
Ratings Threshold will not cause a Collateral Event (as defined in
the Credit Support Annex) not to occur or continue. All credit
ratings described in this definition of Eligible Guarantor shall be
provided to Party B in writing upon the request of Party B.
"Eligible Replacement" means an entity (A) (i) that has credit
ratings from S&P at least equal to the S&P Ratings Threshold, (ii)
has credit ratings from Moody's at least equal to the Moody's
Ratings Threshold, provided, for the avoidance of doubt, that an
Eligible Guarantee with credit ratings below the Ratings Threshold
will not cause a Collateral Event (as defined in the Credit Support
Annex) not to occur or continue, or (ii) the present and future
obligations (for the avoidance of doubt, not limited to payment
obligations) of such entity to Party B under this Agreement are
guaranteed pursuant to an Eligible Guarantee and (B) that has
executed an agreement substantially in the form of Item 1115
Agreement with Depositor. All credit ratings described in this
definition of Eligible Replacement shall be provided to Party B in
writing upon the request of Party B.
"Estimated Swap Termination Payment" means, with respect to an Early
Termination Date, an amount determined by Party A in good faith and
in a commercially reasonable manner as the maximum payment that
could be owed by Party B to Party A in respect of such Early
Termination Date pursuant to Section 6(e) of the ISDA Master
Agreement, taking into account then current market conditions.
Indy Mac INDX Mortgage Loan Trust 2006-AR41 Schedule
"Firm Offer" means (A) with respect to an Eligible Replacement, a
quotation from such Eligible Replacement (i) in an amount equal to
the actual amount payable by or to Party B in consideration of an
agreement between Party B and such Eligible Replacement to replace
Party A as the counterparty to this Agreement by way of novation or,
if such novation is not possible, an agreement between Party B and
such Eligible Replacement to enter into a Replacement Transaction
(assuming that all Transactions hereunder become Terminated
Transactions), and (ii) that constitutes an offer by such Eligible
Replacement to replace Party A as the counterparty to this Agreement
or enter a Replacement Transaction that will become legally binding
upon such Eligible Replacement upon acceptance by Party B, and (B)
with respect to an Eligible Guarantor, an offer by such Eligible
Guarantor to provide an Eligible Guarantee that will become legally
binding upon such Eligible Guarantor upon acceptance by the offeree.
"Moody's" means Xxxxx'x Investors Service, Inc., or any successor
thereto.
"Moody's Ratings Event" means that no Relevant Entity has credit
ratings from Moody's at least equal to the Moody's Ratings
Threshold.
"Moody's Ratings Threshold" means, with respect to a Relevant Entity
or an Eligible Replacement, (i) if such entity has a short-term
unsecured and unsubordinated debt rating from Moody's, a long-term
unsecured and unsubordinated debt rating or counterparty rating from
Moody's of "A2" and a short-term unsecured and unsubordinated debt
rating from Moody's of "Prime-1", or (ii) if such entity does not
have a short-term unsecured and unsubordinated debt rating or
counterparty rating from Moody's, a long-term unsecured and
unsubordinated debt rating or counterparty rating from Moody's of
"A2".
"Moody's Second Trigger Ratings Threshold" means, with respect to
Party A, the guarantor under an Eligible Guarantee or an Eligible
Replacement, (i) if such entity has a short-term unsecured and
unsubordinated debt rating from Moody's, a long-term unsecured and
unsubordinated debt rating or counterparty rating from Moody's of
"A3" and a short-term unsecured and unsubordinated debt rating from
Moody's of "Prime-2", or (ii) if such entity does not have a
short-term unsecured and unsubordinated debt rating from Moody's, a
long-term unsecured and unsubordinated debt rating or counterparty
rating from Moody's of "A3".
"Permitted Transfer" means a transfer by novation by Party A
pursuant to Section 6(b)(ii), Part 5(d), Part 5(e), or the second
sentence of Section 7 (as amended herein) to a transferee (the
"Transferee") of all, but not less than all, of Party A's rights,
liabilities, duties and obligations under this Agreement, with
respect to which transfer each of the following conditions is
satisfied: (a) the Transferee is an Eligible Replacement; (b) Party
A and the Transferee are both "dealers in notional principal
contracts" within the meaning of Treasury regulations section
1.1001-4; (c) as of the date of such transfer the Transferee would
not be required to withhold or deduct on account of Tax from any
payments under this Agreement or would be required to gross up for
such Tax under Section 2(d)(i)(4); (d) an Event of Default or
Termination Event would not occur as a result of such transfer; (e)
pursuant to a written instrument (the "Transfer Agreement"), the
Transferee acquires and assumes all rights and obligations of Party
A under the Agreement and the relevant Transaction; (f) Party B
shall have determined, in its sole discretion, acting in a
commercially reasonable manner, that such Transfer Agreement is
effective to transfer to the Transferee all, but not less than all,
of Party A's rights and obligations under the Agreement and all
relevant Transactions; (g) Party A will be responsible for any costs
or expenses incurred in connection with such transfer (including any
replacement cost of entering into a replacement transaction); (h)
either (A) the Cap Rating Agencies have been given Rating Agency
Notice of such transfer or (B) each Cap Rating Agency has been given
prior written notice of such transfer and such transfer is in
connection with the assignment and assumption of this Agreement
without modification of its terms, other than party names, dates
relevant to the effective date of such transfer, tax representations
(provided that the representations in Part 2(a)(i) are not modified)
and any other representations regarding the status of the substitute
counterparty of the type included in Part 5(b)(iv), Part 5(v)(i)(2)
or Part 5(v)(ii), notice information and account details; and (i)
such transfer otherwise complies with the terms of the Pooling and
Servicing Agreement.
Indy Mac INDX Mortgage Loan Trust 2006-AR41 Schedule
"Rating Agency Notice" means, with respect to any particular
proposed act or omission to act hereunder and each Cap Rating Agency
specified in connection with such proposed act or omission, that the
party acting or failing to act must provide notice of such act or
omission to each of the Cap Rating Agencies..
"Ratings Downgrade Event" means that no Relevant Entity has credit
ratings at least equal to the Ratings Threshold.
"Ratings Threshold" means each of the S&P Ratings Threshold and the
Moody's Ratings Threshold.
"Relevant Entity" means Party A and, to the extent applicable, a
guarantor under an Eligible Guarantee.
"Replacement Transaction" means, with respect to any Terminated
Transaction or group of Terminated Transactions, a transaction or
group of transactions that (i) would have the effect of preserving
for Party B the economic equivalent of any payment or delivery
(whether the underlying obligation was absolute or contingent and
assuming the satisfaction of each applicable condition precedent) by
the parties under Section 2(a)(i) in respect of such Terminated
Transaction or group of Terminated Transactions that would, but for
the occurrence of the relevant Early Termination Date, have been
required after that Date, and (ii) has terms which are substantially
the same as this Agreement, including, without limitation, rating
triggers, Regulation AB compliance, and credit support
documentation, save for the exclusion of provisions relating to
Transactions that are not Terminated Transaction, as determined by
Party B in its sole discretion, acting in a commercially reasonable
manner.
"Required Ratings Downgrade Event" means that no Relevant Entity has
credit ratings equal to the Required Ratings Threshold.
"Required Ratings Threshold" means each of the S&P Required Ratings
Threshold and the Moody's Second Trigger Ratings Threshold.
"S&P" means Standard & Poor's Rating Services, a division of The
XxXxxx-Xxxx Companies, Inc., or any successor thereto.
"S&P Ratings Threshold" means, with respect to a Relevant Entity or
an Eligible Replacement, a short-term unsecured and unsubordinated
debt rating from S&P of "A-1", or, if such entity does not have a
short-term unsecured and unsubordinated debt rating from S&P, a
long-term unsecured and unsubordinated debt rating or counterparty
rating from S&P of "A".
"S&P Required Ratings Threshold" means, with respect to Party A, the
guarantor under an Eligible Guarantee or an Eligible Replacement, a
long term unsecured and unsubordinated debt rating or counterparty
rating from S&P of "BBB+".
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Indy Mac INDX Mortgage Loan Trust 2006-AR41 Schedule
IN WITNESS WHEREOF, the parties have executed this document by their duly
authorized officers with effect from the date so specified on the first page
hereof.
The Supplemental Interest Trust
created under the Pooling and Servicing Agreement
for IndyMac INDX Mortgage Loan Trust 2006-AR41,
Mortgage Pass-Through Certificates, Series
2006-AR41 by Deutsche Bank National Trust Company,
Credit Suisse International not individually, but solely as supplemental
interest trustee
By: /s/ Xxxxxx Xxxxxxxxx By: /s/ Xxxxxxxx Xxxxxxxxxxx
-------------------- ------------------------
Name: Xxxxxx Xxxxxxxxx Name: Xxxxxxxx Xxxxxxxxxxx
Title: Authorized Signatory Title: Associate
By: /s/ Bik Xxxx Xxxxx
------------------
Name: Bik Xxxx Xxxxx
Title: Authorized Signatory
Indy Mac INDX Mortgage Loan Trust 2006-AR41 Schedule
