EXECUTION COPY
ADMINISTRATION AGREEMENT
between
INDYMAC HOME EQUITY MORTGAGE LOAN ASSET-BACKED TRUST,
SERIES 2006-H3,
as Issuer
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Administrator
WILMINGTON TRUST COMPANY,
as Owner Trustee
and
INDYMAC MBS, INC.,
as Depositor
Dated as of September 29, 2006
This Administration Agreement (the "Agreement") is entered into as of
September 29, 2006, among INDYMAC HOME EQUITY MORTGAGE LOAN ASSET-BACKED TRUST,
SERIES 2006-H3, a Delaware statutory trust (the "Issuer"), DEUTSCHE BANK
NATIONAL TRUST COMPANY, a national banking association, not in its individual
capacity but solely as administrator (the "Administrator"), WILMINGTON TRUST
COMPANY, not in its individual capacity but solely as owner trustee of the
Issuer (the "Owner Trustee"), and INDYMAC MBS, INC., as depositor (the
"Depositor").
Capitalized terms used but not defined herein shall have the meanings
assigned to such terms in the Indenture, the Trust Agreement or the Sale and
Servicing Agreement (each as defined herein) and the rules of construction
contained in the Indenture shall apply hereto.
W I T N E S S E T H:
WHEREAS, the Issuer is a statutory trust under the Delaware Statutory
Trust Act (12 Del.C. Section 3801 et seq.) governed pursuant to an Amended and
Restated Trust Agreement relating to the Issuer, dated as of September 29, 2006,
between the Depositor, the Owner Trustee and the Administrator (as amended,
modified or supplemented from time to time, the "Trust Agreement");
WHEREAS, the Issuer will issue under an indenture its HOME EQUITY MORTGAGE
LOAN ASSET-BACKED TRUST, SERIES 2006-H3 ASSET-BACKED NOTES, SERIES 2006-H3 Class
A, Class M1 and Class M2 Notes (together, the "Notes") and, under the Trust
Agreement, the Class B, Class L and Class R Certificates (the "Certificates" and
collectively with the Notes, the "Securities");
WHEREAS, the Notes will be secured by certain collateral, as more
particularly set forth in the Indenture dated as of September 29, 2006 (as
amended, modified or supplemented from time to time, the "Indenture"), between
the Issuer and Deutsche Bank National Trust Company, as indenture trustee (in
such capacity, the "Indenture Trustee");
WHEREAS, the Certificates will be issued pursuant to the Trust Agreement
and will represent the undivided beneficial ownership interest in the Issuer;
WHEREAS, the Issuer has entered into certain agreements in connection with
the issuance of the Securities, including (i) a Sale and Servicing Agreement
dated as of September 14, 2006, between the Issuer, as issuer, the Depositor,
IndyMac Bank, F.S.B., as seller and as servicer (the "Servicer"), and the
Indenture Trustee (as amended, modified or supplemented from time to time, the
"Sale and Servicing Agreement"), (ii) the Letter of Representations dated
September 29, 2006, between the Issuer, the Indenture Trustee, the Administrator
and The Depository Trust Company relating to the Notes (the "Depository
Agreement") and (iii) the Indenture (the Sale and Servicing Agreement, the
Depository Agreement, the Indenture and the Trust Agreement being hereinafter
referred to collectively as the "Related Agreements");
WHEREAS, pursuant to the Related Agreements, the Issuer is required to
perform certain duties in connection with (a) the Notes and the collateral
therefor pledged pursuant to the Indenture (the "Collateral") and (b) the
undivided beneficial ownership interest in the Issuer represented by the
Certificates;
WHEREAS, the Issuer desires to have the Administrator and the Depositor,
respectively, perform certain of the duties of the Issuer referred to in the
preceding clause, and to provide such additional services consistent with the
terms of this Agreement and the Related Agreements as the Issuer or the Owner
Trustee may from time to time request; and
WHEREAS, the Administrator and the Depositor have the capacity to provide
the respective services required hereby and are willing to perform such services
for the Issuer or the Owner Trustee on the terms set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
and other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties agree as follows:
Section 1. Duties of the Administrator.
(a) The Administrator agrees to perform all of the duties of the Issuer
under the Depository Agreement. In addition to its duties performed under the
Depository Agreement, the Administrator shall take all appropriate action that
is the duty of the Issuer to take with respect to the following matters under
the Trust Agreement, the Sale and Servicing Agreement and the Indenture (section
references in parentheses are to sections of the Indenture):
(i) causing the Note Registrar to keep the Note Register, appointing
a successor upon the resignation of the Note Registrar, causing the Note
Register to be kept if the Issuer assumes the duties of Note Registrar,
and giving the Indenture Trustee and the Insurer notice of any appointment
of a new Note Registrar and the location, or change in location, of the
Note Register (Section 2.04);
(ii) execution of Definitive Notes in accordance with the
instructions of any Clearing Agency, the duty to attempt to locate a
qualified successor to the Clearing Agency, if necessary, and the
preparation of written notice to the Indenture Trustee of termination of
the book-entry system through the Clearing Agency (Section 2.12);
(iii) causing the Note Registrar to maintain an office for
registration of transfer or exchange of Notes (Section 3.02);
(iv) preparing Issuer Orders required to appoint any Paying Agent,
preparing written notices thereof to the Indenture Trustee and the Insurer
and causing newly appointed Paying Agents, if any, to execute and deliver
to the Indenture Trustee and the Insurer the instruments specified in the
Indenture regarding funds held in trust (Section 3.03);
(v) preparing Issuer Orders required to direct the Paying Agent to
pay to the Indenture Trustee all sums held in trust by the Paying Agent
(Section 3.03);
(vi) calculating accrual of original issue discount, the accrual of
market discount, and the amortization of premium on the Notes and
calculating the resulting withholding taxes (Section 3.03(v));
2
(vii) executing all supplements, amendments, financing statements,
continuation statements, instruments of further assurance and other
instruments prepared by the Depositor and delivered to the Administrator
for execution necessary to protect the Collateral (Section 3.05);
(viii) upon written notice or actual knowledge thereof, delivering
notice to the Indenture Trustee, the Insurer (so long as the Class A Notes
are outstanding or any Reimbursement Amounts remain due and owing to the
Insurer), and each Rating Agency of each Rapid Amortization Event or Event
of Servicer Termination under the Sale and Servicing Agreement and each
default by the Servicer or the Depositor, as applicable, under the Sale
and Servicing Agreement (Section 3.15);
(ix) upon the request of the Indenture Trustee, executing and
delivering such further instruments and doing such further acts as may be
reasonably necessary or proper to carry out more effectively the purpose
of the Indenture (Section 3.16);
(x) delivering to each Rating Agency a notice of satisfaction and
discharge of the Indenture (Section 4.01);
(xi) furnishing the Indenture Trustee with the names and addresses
of Holders of Notes during any period when the Indenture Trustee is not
the Note Registrar (Section 7.01);
(xii) permitting the inspection of the Issuer's books to the extent
such books are maintained by the Administrator (Section 11.18); and
(xiii) any other duties expressly required to be performed by the
Administrator under the Indenture or the Trust Agreement.
(b) The Administrator shall perform, or cause to be performed on behalf of
the Issuer, any duties expressly required to be performed by it under the Trust
Agreement, including its duties as the Certificate Paying Agent and the
Certificate Registrar.
(c) The Administrator shall perform the duties of the Indenture Trustee
specified in Section 5.05 of the Sale and Servicing Agreement required to be
performed in connection with the Payment Account.
(d) The Administrator shall (i) prepare all necessary UCC-3 financing
statements for the purpose of continuing or amending the UCC-1 financing
statements relating to IndyMac Bank, F.S.B. ("IndyMac"), the Depositor and the
Issuer, each naming the appropriate party as debtor and the appropriate party as
secured party, as are required and for as long as this Agreement and the
Indenture remain outstanding, (ii) submit any such UCC-3 financing statements to
the proper parties for execution and (iii) file such UCC-3 financing statements
in a timely manner.
(e) In carrying out the foregoing duties or any of its other obligations
under this Agreement, the Administrator may enter into transactions with or
otherwise deal with any of its Affiliates; provided, however, that the terms of
any such transactions or dealings shall be in
3
accordance with any directions received from the Issuer and shall be, in the
Administrator's opinion, no less favorable to the Issuer than would be available
from unaffiliated parties.
In carrying out the foregoing duties, the Administrator shall be subject
to the same standard of care and have the same rights, indemnifications and
immunities as the Indenture Trustee under the Indenture, including, without
limitation, the right to compensation, reimbursement and indemnification.
The Administrator, in its capacity as the Certificate Registrar, and upon
a request received from the Owner Trustee, shall promptly notify the
Certificateholders of (i) any change in the Corporate Trust Office of the Owner
Trustee, (ii) any amendment to the Trust Agreement requiring notice be given to
the Certificateholders and (iii) any other notice required to be given to the
Certificateholders by the Owner Trustee under the Trust Agreement.
Section 2. Duties of the Depositor With Respect to the Indenture.
(a) The Depositor shall take all appropriate action that is the duty of
the Issuer to take with respect to the following matters under the Sale and
Servicing Agreement and the Indenture (section references in parentheses are to
sections of the Indenture):
(i) consulting with the Owner Trustee regarding the duties of the
Issuer under the Sale and Servicing Agreement and the Indenture, and
monitoring the performance of the Issuer and notifying the Owner Trustee
when action is necessary to comply with the Issuer's duties under the Sale
and Servicing Agreement and the Indenture;
(ii) causing the preparation of the Notes for execution by the Owner
Trustee upon their issuance and upon the registration of any transfer or
exchange of the Notes (Sections 2.02, 2.04 and 2.05);
(iii) causing the preparation of an Issuer Order and related
documents for authentication of the Notes, executing such Issuer Order on
behalf of the Issuer and causing delivery of the same to the Indenture
Trustee (Section 2.02);
(iv) obtaining and preserving the Issuer's qualification to do
business in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of the Indenture, the
Notes, the Collateral and each other instrument and agreement included in
the Trust Estate (Section 3.04).
(v) causing the preparation of any financing statements,
continuation statements, instruments of further assurance and other
instruments necessary to protect the Collateral (Section 3.05);
(vi) the monitoring of the Issuer's compliance with its negative
covenants (Sections 3.08, 3.10. 3.11. 3.12, 3.13 and 3.14);
(vii) preparing the annual Officer's Certificate (and executing the
same on behalf of the Issuer) regarding the Issuer's compliance with the
terms Indenture (Section 3.09);
4
(viii) delivering notice to the Indenture Trustee, the Insurer (so
long as the Class A Notes are outstanding or any Reimbursement Amounts
remain due and owing to the Insurer), and each Rating Agency of each Rapid
Amortization Event and/or Event of Servicing Termination (Section 3.15);
(ix) causing the preparation of an Officer's Certificate (and
executing the same on behalf of the Issuer) and the obtaining of the
Opinion of Counsel with respect to any request by the Issuer to the
Indenture Trustee to take any action under the Indenture (Sections 4.01
and 11.01);
(x) removing the Indenture Trustee for cause, appointing a successor
Indenture Trustee, if necessary obtaining the approval thereof by the
Insurer and, if necessary, petitioning a court of competent jurisdiction
for the appointment of a successor Indenture Trustee (Section 6.08);
(xi) filing with the Indenture Trustee and the Commission and
providing a copy to the Insurer any additional information, documents and
reports and supplying the Indenture Trustee summaries of such additional
information, documents and reports (Section 7.03);
(xii) notifying the Indenture Trustee if and when the Notes are
listed on any securities exchange (Section 7.04);
(xiii) causing the preparation of an Issuer Request and Officer's
Certificate (and executing the same on behalf of the Issuer) and the
obtaining of an Opinion of Counsel, if necessary, for the release of the
Collateral, as defined in the Indenture (Section 8.04);
(xiv) causing the preparation of Issuer Orders (and executing the
same on behalf of the Issuer) and the obtaining of Opinions of Counsel
with respect to the execution of supplemental indentures and, if
necessary, the mailing to the Noteholders of notices with respect to their
consent to such supplemental indentures (Sections 9.01, 9.02, 9.03 and
9.07);
(xv) causing the preparation of Issuer Orders (and accounting the
same on behalf of the Issuer) and obtaining Opinions of Counsel with
respect to requests for action by Indenture Trustee (Section 11.01); and
(xvi) effecting a recording of the Indenture and obtaining an
Opinion of Counsel (Section 11.15).
(b) The Depositor will indemnify the Owner Trustee and the Administrator,
and their respective agents for, and hold them harmless against, any losses,
liability or expense incurred without gross negligence or bad faith on their
part, arising out of or in connection with the acceptance or administration of
the transactions contemplated by the Trust Agreement or this Agreement,
including the reasonable costs and expenses of defending themselves against any
claim or liability in connection with the exercise or performance of any of
their powers or duties under the Trust Agreement or this Agreement.
5
(c) In addition to the duties of the Depositor set forth above, the
Depositor shall prepare for execution by the Issuer or shall cause the
preparation by other appropriate persons of all such documents, reports,
filings, instruments, certificates and opinions as it shall be the duty of the
Issuer to prepare, file or deliver pursuant to the Related Agreements, and at
the request of the Owner Trustee shall take all appropriate action that it is
the duty of the Issuer to take pursuant to the Related Agreements. Subject to
Section 5, and in accordance with the directions of the Owner Trustee, the
Depositor shall administer, perform or supervise the performance of such other
activities in connection with the Collateral (including the Related Agreements)
as are not covered by any of the foregoing provisions and as are expressly
requested by the Owner Trustee and are reasonably within the capability of the
Depositor.
Section 3. Records. The Administrator shall maintain appropriate books of
account and records relating to services performed hereunder, which books of
account and records shall be accessible for inspection by the Issuer, the
Insurer (so long as the Class A Notes are outstanding or any Reimbursement
Amounts remain due and owing to the Insurer and no Insurer Default has occurred
and is continuing) and the Depositor at any time during normal business hours.
Section 4. Compensation. The Administrator will perform the duties and
provide the services called for under Section 1 above for such compensation as
shall be agreed upon between the Administrator and the Depositor, which amounts
shall be paid by the Depositor. The fees of the attorneys delivering any Opinion
of Counsel, and any other amounts of out-of-pocket expenses reasonably incurred
by the Administrator pursuant to this Agreement shall be paid by the Depositor,
which, by its execution hereof, agree to pay such reasonable fees and expenses
to the Administrator.
Section 5. Additional Information to be Furnished to the Issuer. The
Depositor shall furnish to the Issuer from time to time such additional
information regarding the Collateral as the Issuer shall reasonably request.
Section 6. Independence of the Administrator. For all purposes of this
Agreement, the Administrator shall be an independent contractor and shall not be
subject to the supervision of the Issuer or the Owner Trustee with respect to
the manner in which it accomplishes the performance of its obligations
hereunder. Unless expressly authorized by the Issuer, the Administrator shall
have no authority to act for or represent the Issuer or the Owner Trustee in any
way and shall not otherwise be deemed an agent of the Issuer or the Owner
Trustee.
Section 7. No Joint Venture. Nothing contained in this Agreement (i) shall
constitute the Administrator or the Depositor, respectively, and either of the
Issuer or the Owner Trustee, as members of any partnership, joint venture,
association, syndicate, unincorporated business or other separate entity, (ii)
shall be construed to impose any liability as such on any of them or (iii) shall
be deemed to confer on any of them any express, implied or apparent authority to
incur any obligation or liability on behalf of the others.
Section 8. Other Activities of Administrator and the Depositor. Nothing
herein shall prevent the Administrator, the Depositor or their respective
Affiliates from engaging in other businesses or, in its sole discretion, from
acting in a similar capacity for any other person or
6
entity even though such person or entity may engage in business activities
similar to those of the Issuer or the Owner Trustee.
Section 9. Term of Agreement; Resignation and Removal of Administrator.
(a) This Agreement shall continue in force until the termination of the
Trust Agreement in accordance with its terms, upon which event this Agreement
shall automatically terminate.
(b) Subject to Sections 9(e) and 9(f), the Administrator may resign its
duties hereunder by providing the Issuer with at least 60 days' prior written
notice.
(c) Subject to Sections 9(e) and 9(f), the Issuer may remove the
Administrator without cause by providing the Administrator with at least 60
days' prior written notice.
(d) Subject to Sections 9(e) and 9(f), the Issuer may remove the
Administrator immediately upon written notice of termination from the Issuer to
the Administrator if any of the following events shall occur:
(i) the Administrator shall default in the performance of any of its
duties under this Agreement and, after notice of such default, shall not
cure such default within ten days (or, if such default cannot be cured in
such time, shall not give within ten days such assurance of cure as shall
be reasonably satisfactory to the Issuer); or
(ii) a court having jurisdiction in the premises shall (x) enter a
decree or order for relief, which decree or order shall not have been
vacated within 60 days, in respect of the Administrator in any involuntary
case under any applicable bankruptcy, insolvency or other similar law now
or hereafter in effect, or (y) appoint a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official for the Administrator
or any substantial part of its property, or (z) order the winding-up or
liquidation of the Administrator's affairs; or
(iii) the Administrator shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, shall consent to the entry of an order for relief in an
involuntary case under any such law, or shall consent to the appointment
of a receiver, liquidator, assignee, trustee, custodian, sequestrator or
similar official for the Administrator or any substantial part of its
property, shall consent to the taking of possession by any such official
of any substantial part of its property, shall make any general assignment
for the benefit of creditors or shall fail generally to pay its debts as
they become due.
The Administrator agrees that if any of the events specified in clauses
(ii) or (iii) of this Section 9(d) shall occur, it shall give written notice
thereof to the Issuer and the Indenture Trustee within seven days after the
occurrence of such event.
(e) No resignation or removal of the Administrator pursuant to this
Section shall be effective until (i) a successor Administrator shall have been
appointed by the Owner Trustee in accordance with the Trust Agreement and (ii)
such successor Administrator shall have agreed in
7
writing to be bound by the terms of this Agreement in the same manner as the
Administrator is bound hereunder.
If a successor Administrator does not take office within 60 days after the
retiring Administrator resigns or is removed, the resigning or removed
Administrator or the Issuer may petition any court of competent jurisdiction for
the appointment of a successor Administrator.
(f) The appointment of any successor Administrator shall be effective only
after receipt of a letter from each Rating Agency to the effect that such
proposed appointment will not cause a reduction or withdrawal of the then
current ratings of the Notes.
(g) The Administrator acknowledges that upon the appointment of a
successor Indenture Trustee pursuant to Section 6.08 of the Indenture, the
Administrator shall immediately resign and such successor Indenture Trustee
shall automatically become the Administrator under this Agreement. Any such
successor Indenture Trustee shall be required to agree to assume the duties of
the Administrator under the terms and conditions of this Agreement in its
acceptance of appointment as successor Indenture Trustee.
Section 10. Action upon Termination, Resignation or Removal of the
Administrator. Promptly upon the effective date of termination of this Agreement
or the resignation or removal of the Administrator pursuant to Section 9, the
Administrator shall be entitled to be paid and shall be paid by the Depositor
all fees and reimbursable expenses, including any reasonable out-of-pocket
attorneys' fees, accruing to it to the date of such termination, resignation or
removal. The Administrator shall forthwith upon such termination pursuant to
Section 9 deliver to the successor Administrator all property and documents of
or relating to the Collateral then in the custody of the Administrator, or if
this Agreement has been terminated, to the Depositor. In the event of the
resignation or removal of the Administrator pursuant to Section 9, the
Administrator shall cooperate with the Issuer and take all reasonable steps
requested to assist the Issuer in making an orderly transfer of the duties of
the Administrator.
Section 11. Notices. Any notice, report or other communication given
hereunder shall be in writing, delivered by mail, overnight courier or facsimile
and addressed as follows:
(a) if to the Issuer, to:
IndyMac Home Equity Mortgage Loan Asset-Backed Trust, Series 2006-H3
c/o Wilmington Trust Company
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
8
(b) if to the Administrator, to:
Deutsche Bank National Trust Company
▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Trust Administration IN06H3
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(c) if to the Owner Trustee, to:
Wilmington Trust Company
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
(d) if to the Depositor, to:
IndyMac MBS, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Secondary Marketing - Transaction Management
or to such other address as any party shall have provided to the other
parties in writing. Any notice required to be in writing hereunder shall be
deemed given if such notice is mailed by certified mail, postage prepaid, hand
delivered or faxed to the address of such party as provided above.
Section 12. Amendments.
(a) This Agreement may be amended from time to time by the parties hereto,
without notice to or the consent of any of the Holders of the Notes or the
Certificates but with the consent of the Insurer (so long as the Class A Notes
are outstanding or any Reimbursement Amounts remain due and owing to the Insurer
and no Insurer Default has occurred and is continuing), (i) to cure any
ambiguity, (ii) to cause the provisions herein to conform to or be consistent
with or in furtherance of the statements made with respect to the Securities,
the Issuer or this Agreement in any Offering Document, or to correct or
supplement any provision herein which may be inconsistent with any other
provisions herein, (iii) to make any other provisions with respect to matters or
questions arising under this Agreement or (iv) to add, delete, or amend any
provisions to the extent necessary or desirable to comply with any requirements
imposed by the Code. No such amendment effected pursuant to clause (iii) of the
preceding sentence shall, as evidenced by an Opinion of Counsel (which shall be
an expense of the party requesting such amendment and shall not be an expense of
the Trust), adversely affect the tax status of the REMICs created by the Trust
Agreement, nor shall such amendment adversely affect in any material respect the
interests of any Holder or adversely affect the Insurer without the consent of
the Insurer. Prior to entering into any amendment without the consent of Holders
pursuant to this paragraph, the
9
Administrator may require an Opinion of Counsel (at the expense of the party
requesting such amendment) to the effect that such amendment is permitted under
this paragraph. Any such amendment shall be deemed not to adversely affect in
any material respect any Holder and the opinion to such effect will not be
required to be given, if the Administrator receives written confirmation from
each Rating Agency that such amendment will not cause such Rating Agency to
reduce the then current rating assigned to the Notes without taking into account
the Policy.
(b) This Agreement may also be amended from time to time by the parties
hereto with the consent of the Holders of not less than 66-2/3% of the Note
Principal Amount of each Class of Notes, the Insurer (so long as the Class A
Notes are Outstanding) and of the Holders of the Certificates for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of the
Holders; provided, however, that no such amendment may (i) increase or reduce in
any manner the amount of, or accelerate or delay the timing of, collections of
payments on the Collateral or payments or distributions, as applicable, that
shall be required to be made for the benefit of the Noteholders or the
Certificateholders or the Insurer or (ii) reduce the aforesaid percentage of the
Class Principal Amount of the Notes required to consent to any such amendment,
in the case of clause (i) without the consent of the Holders of all the
outstanding Notes and the Certificates, the Insurer (so long as the Class A
Notes are outstanding or any Reimbursement Amounts remain due and owing to the
Insurer) and in the case of clause (ii) without the consent of the Holders of
all the outstanding Notes. For purposes of this paragraph, references to
"Holder" or "Holders" shall be deemed to include, in the case of Book-Entry
Notes, the related Note Owners.
(c) Promptly after the execution of any such amendment, the Administrator
shall furnish a copy of such amendment to each Holder, the Depositor and to each
Rating Agency.
(d) It shall not be necessary for the consent of Holders under this
Section 12 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Holders shall be subject to such reasonable regulations as
the Administrator may prescribe.
(e) The Owner Trustee may, but shall not be obligated to, enter into any
amendment which affects the Owner Trustee's own rights, duties or immunities
under this Agreement or otherwise.
Section 13. Successors and Assigns. This Agreement may not be assigned by
the Administrator unless such assignment is previously consented to in writing
by the Owner Trustee, the Insurer (so long as the Class A Notes are outstanding
or any Reimbursement Amounts remain due and owing to the Insurer and no Insurer
Default has occurred and is continuing) and the Depositor, and the Rating Agency
Condition in respect thereof has been satisfied. An assignment with such consent
and satisfaction, if accepted by the assignee, shall bind the assignee hereunder
in the same manner as the Administrator is bound hereunder. Notwithstanding the
foregoing, this Agreement may be assigned by the Administrator without the
consent of the Owner Trustee or the Depositor to a corporation or other
organization that is a successor (by merger, consolidation or purchase of
assets) to the Administrator, provided that
10
such successor organization executes and delivers to the Issuer, the Owner
Trustee and the Depositor an agreement in which such corporation or other
organization agrees to be bound hereunder by the terms of said assignment in the
same manner as the Administrator is bound hereunder. Subject to the foregoing,
this Agreement shall bind any successors or assigns of the parties hereto.
Section 14. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER THAN SECTIONS 5-1401 AND
5-1402 OF THE GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 15. Headings. The section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the meaning,
construction or effect of this Agreement.
Section 16. Counterparts. This Agreement may be executed in counterparts,
each of which when so executed shall together constitute one and the same
agreement.
Section 17. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
Section 18. Not Applicable to Deutsche Bank National Trust Company in
Other Capacities. Nothing in this Agreement shall affect any obligation Deutsche
Bank National Trust Company may have in any other capacity.
Section 19. Limitation of Liability of Owner Trustee. Notwithstanding
anything contained herein to the contrary, this Agreement has been countersigned
by Wilmington Trust Company not in its individual capacity but solely in its
capacity as Owner Trustee of the Issuer and in no event shall Wilmington Trust
Company in its individual capacity or any beneficial owner of the Issuer have
any liability for the representations, warranties, covenants, agreements or
other obligations of the Issuer hereunder, as to all of which recourse shall be
had solely to the assets of the Issuer. For all purposes of this Agreement, in
the performance of any duties or obligations of the Issuer hereunder, the Owner
Trustee shall be subject to, and entitled to the benefits of, the terms and
provisions of Articles VI, VII and VIII of the Trust Agreement.
Section 20. Limitation of Liability of the Administrator; Indemnification.
Notwithstanding anything herein to the contrary, this Agreement has been
countersigned by Deutsche Bank National Trust Company not in its individual
capacity but solely in its capacity as Administrator and in no event shall the
Administrator in its individual capacity have any liability for the
representations, warranties, covenants, agreements or other obligations of the
Issuer hereunder, as to all of which recourse shall be had solely to the assets
of the Issuer. The Depositor hereby agrees to indemnify the Administrator, the
Certificate Paying Agent and the
11
Certificate Registrar against any and all loss, liability or expense (including
attorney's fees) incurred by any of them in connection with the performance of
their respective duties under the Related Agreements. The Administrator, the
Certificate Paying Agent and the Certificate Registrar and shall notify each of
the Issuer and the Depositor promptly of any claim for which it may seek
indemnity. Failure by any such party to so notify the Depositor shall not
relieve the Depositor of its obligations hereunder. The Depositor shall defend
any such claim, and the Administrator and the Certificate Paying Agent may have
separate counsel and the Depositor shall pay the fees and expenses of such
counsel. The Depositor need not reimburse any expense or indemnify against any
loss, liability or expense incurred by the Administrator, the Certificate Paying
Agent or the Certificate Registrar to the extent attributable to any such
party's own willful misconduct, negligence or bad faith.
Each of such parties shall be third-party beneficiaries of this Section 20
and shall be entitled to rely upon and to directly enforce this Section. The
payment and indemnification obligations of the Depositor under the Related
Agreements shall survive the resignation or removal of either of such parties
and the termination of this Agreement and the Related Agreements.
Section 21. Benefit of Agreement. It is expressly agreed that in
performing its duties under this Agreement, the Administrator will act for the
benefit of Holders of the Securities as well as for the benefit of the Insurer
and the Issuer, and that such obligations on the part of the Administrator shall
be enforceable at the instance of the Indenture Trustee, the Insurer and the
Issuer.
Section 22. Bankruptcy Matters. No party to this Agreement shall take any
action to cause the Depositor or the Issuer to dissolve in whole or in part or
file a voluntary petition or otherwise initiate proceedings to have the
Depositor or the Issuer adjudicated bankrupt or insolvent, or consent to the
institution of bankruptcy or insolvency proceedings against the Depositor or the
Issuer, or file a petition seeking or consenting to reorganization or relief of
the Depositor or the Issuer as debtor under any applicable federal or state law
relating to bankruptcy, insolvency, or other relief for debtors with respect to
the Depositor or the Issuer; or seek or consent to the appointment of any
trustee, receiver, conservator, assignee, sequestrator, custodian, liquidator
(or other similar official) of the Depositor or the Issuer or of all or any
substantial part of the properties and assets of the Depositor or the Issuer, or
cause the Issuer to make any general assignment for the benefit of creditors of
the Depositor or the Issuer, or take any action in furtherance of any of the
above actions.
12
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
INDYMAC HOME EQUITY MORTGAGE LOAN
ASSET-BACKED TRUST, SERIES 2006-H3
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity but solely as Administrator
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
---------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇▇
Title: Authorized Signer
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
INDYMAC MBS, INC.,
as Depositor
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
IndyMac Home Equity Mortgage Loan
Asset-Backed Trust, Series 2006-H3
Administration Agreement
S-1