EXHIBIT 99.2
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The Confirmation
Page 1 of 20
[GRAPHIC OMITTED]
Dated: April 10, 2006
Rate Cap Transaction
Re: BNY Reference No. 37662
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Ladies and Gentlemen:
The purpose of this letter agreement ("Agreement") is to confirm the
terms and conditions of the rate Cap Transaction entered into on the Trade
Date specified below (the "Transaction") between The Bank of New York ("BNY"),
a trust company duly organized and existing under the laws of the State of New
York, and Deutsche Bank National Trust Company, not in its individual
capacity, but solely as trustee (in such capacity, the "Trustee") under the
Pooling and Servicing Agreement, dated as of April 1, 2006, among IndyMac MBS,
Inc., as depositor (the "Depositor"), IndyMac Bank, F.S.B., as seller (the
"Seller"), (the "Pooling and Servicing Agreement"). IndyMac INDX Mortgage Loan
Trust 2006-AR9 (the "Issuing Entity") is referred to herein as the
"Counterparty". This Agreement, which evidences a complete and binding
agreement between you and us to enter into the Transaction on the terms set
forth below, constitutes a "Confirmation" as referred to in the "ISDA Form
Master Agreement" (as defined below), as well as a "Schedule" as referred to
in the ISDA Form Master Agreement.
1. Form of Agreement. This Agreement is subject to the 2000 ISDA Definitions
(the "Definitions"), as published by the International Swaps and Derivatives
Association, Inc. ("ISDA"). You and we have agreed to enter into this
Agreement in lieu of negotiating a Schedule to the 1992 ISDA Master Agreement
(Multicurrency--Cross Border) form (the "ISDA Form Master Agreement"). An ISDA
Form Master Agreement, as modified by the Schedule terms in Paragraph 4 of
this Confirmation (the "Master Agreement"), shall be deemed to have been
executed by you and us on the date we entered into the Transaction. Except as
otherwise specified, references herein to Sections shall be to Sections of the
ISDA Form Master Agreement and the Master Agreement, and references to
Paragraphs shall be to paragraphs of this Agreement. In the event of any
inconsistency between the provisions of this Agreement and the Definitions or
the ISDA Form Master Agreement, this Agreement shall prevail for purposes of
the Transaction. Capitalized terms not otherwise defined herein or in the
Definitions or the Master Agreement shall have the meaning defined for such
term in the Pooling and Servicing Agreement.
2. Certain Terms. The terms of the particular Transaction to which this
Confirmation relates are as follows:
Type of Transaction: Rate Cap
Ref No. 37662
Page 2 of 20
Notional Amount: With respect to any Calculation Period, the lesser of
(i) the amount set forth on the attached Schedule I
and (ii) the aggregate Certificate Principal Balance
of the Class 3-A-2 Certificates immediately prior to
the related Distribution Date (as each such term is
defined in the Pooling and Servicing Agreement).
The aggregate Certificate Principal Balance of the
Certificates shall be published on the IndyMac INDX
▇▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇ to Certificateholders generated by
Deutsche Bank National Trust Companyon the Deutsche
Bank National Trust Company internet website
▇▇▇▇▇://▇▇▇.▇▇▇.▇▇.▇▇▇/▇▇▇▇ under the column heading
Current Principal Balance. If such report does not
appear on the internet website referenced above, the
Certificate Principal Balance of the Certificates can
be obtained by contacting the trustee at its corporate
trust office located at ▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention Trust
Administration IN06A9, or by contacting the trustee's
investor relations desk at (▇▇▇) ▇▇▇-▇▇▇▇.
Trade Date: April 10, 2006
Effective Date: May 25, 2006
Termination Date: March 25, 2011, subject to adjustment in accordance with
the Following Business Day Convention.
Fixed Amounts:
Fixed Amount Payer: Counterparty
Fixed Amount: USD 274,000.00
Fixed Amount
Payment Date: April 27, 2006
FLOATING AMOUNTS
Floating Rate Payer: BNY
Cap Rate: 5.6923%
Floating Rate for
initial
Calculation Period: To be determined
Ref No. 37662
Page 3 of 20
Floating Rate Day Count
Fraction: 30/360
Floating Rate Option: USD-LIBOR-BBA, provided, however, if the Floating Rate
Option for a Calculation Period is greater than 9.15%
then the Floating Rate Option for such Calculation
Period shall be deemed equal to 9.15%.
Designated Maturity: One month
Spread: Inapplicable
Floating Rate Payer
Period End Dates: The 25th day of each month, beginning on June 25, 2006
and ending on the Termination Date, with No Adjustments.
Floating Rate Payer
Payment Dates: Early Payment shall be applicable. The Floating Rate
Payer Payment Date shall be two (2) Business Days
preceding each Floating Rate Payer Period End Date.
Reset Dates: The first day of each Calculation Period or Compounding
Period, if Compounding is applicable.
Compounding: Inapplicable
Business Days for Payments
By both parties: New York
Calculation Agent: BNY
3. Additional Provisions:
1) Reliance. Each party hereto is hereby advised and acknowledges 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.
2) Transfer, Amendment and Assignment. No transfer, amendment, waiver,
supplement, assignment or other modification of this Transaction shall
be permitted by either party unless each of Standard & Poor's Ratings
Service, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc ("S&P") and
▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's"), has been provided notice of
the same and confirms in writing (including by facsimile transmission)
that it will not downgrade, qualify, withdraw or otherwise modify its
then-current ratings on the Certificates issued under the Pooling and
Servicing Agreement (the "Certificates").
4. Provisions Deemed Incorporated in a Schedule to the Master Agreement:
Ref No. 37662
Page 4 of 20
1) No Netting Between Transactions. The parties agree that
subparagraph (ii) of Section 2(c) will apply to any Transaction.
2) Termination Provisions. Subject to the provisions of Paragraph
4(11) below, for purposes of the Master Agreement:
(a) "Specified Entity" is not applicable to BNY or the
Counterparty for any purpose.
(b) The "Breach of Agreement" provision of Section 5(a)(ii) will
not apply to BNY or the Counterparty.
(c) The "Credit Support Default" provisions of Section 5(a)(iii)
will not apply to BNY (except with respect to credit support
furnished pursuant to Paragraph 4 9) below or the
Counterparty.
(d) The "Misrepresentation" provisions of Section 5(a)(iv) will
not apply to BNY or the Counterparty.
(e) "Default under Specified Transaction" is not applicable to
BNY or the Counterparty for any purpose, and, accordingly,
Section 5(a)(v) shall not apply to BNY or the Counterparty.
(f) The "Cross Default" provisions of Section 5(a)(vi) will not
apply to BNY or to the Counterparty.
(g) The "Bankruptcy" provisions of Section 5(a)(vii)(2) will not
apply to the Counterparty; the words "trustee" and
"custodian" in Section 5(a)(vii)(6) will not include the
Trustee; and the words "specifically authorized " are
inserted before the word "action" in Section 5(a)(vii)(9).
(h) The "Credit Event Upon Merger" provisions of Section
5(b)(iv) will not apply to BNY or the Counterparty.
(i) The "Automatic Early Termination" provision of Section 6(a)
will not apply to BNY or to the Counterparty.
(j) Payments on Early Termination. For the purpose of Section
6(e):
(i) Market Quotation will apply.
(ii) The Second Method will apply.
(k) "Termination Currency" means United States Dollars.
Ref No. 37662
Page 5 of 20
(l) No Additional Amounts Payable by Counterparty. The
Counterparty shall not be required to pay any additional
amounts pursuant to Section 2(d)(i)(4) or 2(d)(ii).
3) Tax Representations.
(a) Payer Representations. For the purpose of Section 3(e), BNY
and the Counterparty make the following representations:
It is not required by any applicable law, as modified by the
practice of any relevant governmental revenue authority, of
any Relevant Jurisdiction to make any deduction or
withholding for or on account of any Tax from any payment
(other than interest under Section 2(e), 6(d)(ii) or 6(e))
to be made by it to the other party under this Agreement. In
making this representation, it may rely on:
(i) the accuracy of any representations made by the other
party pursuant to Section 3(f);
(ii) the satisfaction of the agreement contained in Section
4 (a)(i) or 4(a)(iii) and the accuracy and
effectiveness of any document provided by the other
party pursuant to Section 4 (a)(i) or 4(a)(iii); and
(iii) the satisfaction of the agreement of the other party
contained in Section 4(d), provided that it shall not
be a breach of this representation where reliance is
placed on clause (ii) and the other party does not
deliver a form or document under Section 4(a)(iii) by
reason of material prejudice of its legal or
commercial position.
(b) Payee Representations. For the purpose of Section 3(f), BNY
and the Counterparty make the following representations.
(i) The following representation will apply to BNY:
(x) It is a "U.S. person" (as that term is used in
section 1.1441-4(a)(3)(ii) of the United States
Treasury Regulations) for United States federal income
tax purposes, (y) it is a trust company duly organized
and existing under the laws of the State of New York,
and (y) its U.S. taxpayer identification number is
▇▇▇▇▇▇▇▇▇.
(ii) The following representation will apply to the
Counterparty:
The beneficial owner of payments made to it under this
Agreement is a "U.S. person" (as that term is used in
section 1.1441-4(a)(3)(ii) of
Ref No. 37662
Page 6 of ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇) ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
federal income tax purposes.
4) Documents to be delivered. For the purpose of Section 4(a):
(a) Tax forms, documents or certificates to be delivered are:
Party required to Date by which Covered by Section
deliver document Form/Document/ Certificate to be delivered 3(d) Representation
BNY and Any document required or reasonably Upon the execution and Yes
Counterparty requested to allow the other party to delivery of this
make payments under this Agreement Agreement
without any deduction or withholding for
or on the account of any tax.
(b) Other documents to be delivered are:
Party required to Date by which Covered by Section
deliver document Form/Document/ Certificate to be delivered 3(d) Representation
BNY A certificate of an authorized officer of Upon the execution and Yes
the party, as to the incumbency and delivery of this
authority of the respective officers of the Agreement
party signing this Agreement, any relevant
Credit Support Document, or any Confirmation,
as the case may be.
Counterparty (i) a copy of the executed Pooling and Upon the execution and Yes
Servicing Agreement, and (ii) an incumbency delivery of this
certificate verifying the true signatures Agreement
and authority of the person or persons
signing this letter agreement on behalf of
the Counterparty and the authority of such
party to enter into Transactions
contemplated and performance of its
obligations hereunder.
BNY A copy of the most recent publicly Promptly after request Yes
available regulatory call report. by the other party
Ref No. 37662
Page 7 of 20
5) Miscellaneous.
(a) Address for Notices: For the purposes of Section 12(a):
Address for notices or communications to BNY:
The Bank of New York
Swaps and Derivative Products Group
Global Market Division
▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
with a copy to:
The Bank of New York
Swaps and Derivative Products Group
▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Tele: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇/5837
(For all purposes)
Address for notices or communications to the Counterparty:
IndyMac INDX Mortgage Loan Trust ▇▇▇▇-▇▇▇
▇/▇ ▇▇▇▇▇▇▇▇ Bank National Trust Company
▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: Trust Administration: IN06A9
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
(b) Process Agent. For the purpose of Section 13(c):
BNY appoints as its Process Agent: Not Applicable
The Counterparty appoints as its Process Agent:
Not Applicable
(c) Offices. The provisions of Section 10(a) will not apply to
this Agreement; neither BNY nor the Counterparty have any
Offices other than as set forth in the Notices Section and
BNY agrees that, for purposes of Section 6(b), it shall not
in future have any Office other than one in the United
States.
Ref No. 37662
Page 8 of 20
(d) Multibranch Party. For the purpose of Section 10(c):
BNY is not a Multibranch Party.
The Counterparty is not a Multibranch Party.
(e) Calculation Agent. The Calculation Agent is BNY.
(f) Credit Support Document. Not applicable for either BNY
(except with respect to credit support furnished pursuant to
Paragraph 9) or the Counterparty.
(g) Credit Support Provider.
BNY: Not Applicable (except with respect to
credit support furnished pursuant to
Paragraph 9)
Counterparty: Not Applicable
(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 conflict of
law provisions thereof other than New York General
Obligations Law Sections 5-1401 and 5-1402.
(i) 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) for any reason, 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.
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.
(j) Recording of Conversations. Each party (i) consents to the
recording of telephone conversations between the trading,
marketing and other relevant personnel of the parties in
connection with this Agreement or any potential Transaction,
(ii) agrees to obtain any necessary consent of, and give any
necessary notice of such recording to, its relevant
personnel and (iii) agrees,
Ref No. 37662
Page 9 of 20
to the extent permitted by applicable law, that recordings
may be submitted in evidence in any Proceedings.
(k) Waiver of Jury Trial. Each party waives any right it may
have to a trial by jury in respect of any Proceedings
relating to this Agreement or any Credit Support Document.
(l) Non-Recourse. Notwithstanding any provision herein or in the
ISDA Form Master Agreement to the contrary, the obligations
of the Counterparty hereunder are limited recourse
obligations of the Counterparty, payable solely from the
Issuing Entity and the proceeds thereof to satisfy the
Counterparty's obligations hereunder. In the event that the
Issuing Entity and proceeds thereof should be insufficient
to satisfy all claims outstanding and following the
realization of the Issuing Entity and the distribution of
the proceeds thereof in accordance with the Pooling and
Servicing Agreement, any claims against or obligations of
the Counterparty under the ISDA Form Master Agreement or any
other confirmation thereunder, still outstanding shall be
extinguished and thereafter not revive. This provision shall
survive the expiration of this Agreement.
(m) Limitation on Institution of Bankruptcy Proceedings. BNY
shall not institute against or cause any other person to
institute against, or join any other person in instituting
against the Counterparty, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, under
any of the laws of the United States or any other
jurisdiction, for a period of one year and one day (or, if
longer, the applicable preference period) following
indefeasible payment in full of the Certificates. This
provision shall survive the expiration of this Agreement.
(n) Remedy of Failure to Pay or Deliver. The ISDA Form Master
Agreement is hereby amended by replacing the word "third" in
the third line of Section 5(a)(i) by the word "second".
(o) "Affiliate" will have the meaning specified in Section 14 of
the ISDA Form Master Agreement, provided that the
Counterparty shall not be deemed to have any Affiliates for
purposes of this Agreement, including for purposes of
Section 6(b)(ii).
(p) Trustee's Capacity. It is expressly understood and agreed by
the parties hereto that insofar as this Confirmation is
executed by the Trustee (i) this Confirmation is executed
and delivered by Deutsche Bank National Trust Company, not
in its individual capacity but solely as Trustee pursuant to
the Pooling and Servicing Agreement in the exercise of the
powers and authority conferred and vested in it thereunder
and pursuant to instruction set forth therein (ii) each of
the representations, undertakings and
Ref No. 37662
Page 10 of 20
agreements herein made on behalf of the trust is made and
intended not as a personal representation, undertaking or
agreement of the Trustee but is made and intended for the
purpose of binding only the Counterparty, and (iii) under no
circumstances will Deutsche Bank National Trust Company, in
its individual capacity be personally liable for the payment
of any indebtedness or expenses or be personally liable for
the breach or failure of any obligation, representation,
warranty or covenant made or undertaken under this
Confirmation.
(q) Trustee's Representation. Deutsche Bank National Trust
Company, as Trustee, represents and warrants that:
It has been directed under the Pooling and Servicing
Agreement to enter into this letter agreement as Trustee on
behalf of the Counterparty.
(r) Amendment to Pooling and Servicing Agreement.
Notwithstanding any provisions to the contrary in the
Pooling and Servicing Agreement, none of the Depositor, the
Trustee shall enter into any amendment thereto which could
have a material adverse affect on BNY without the prior
written consent of BNY.
6) Additional Representations. Section 3 is hereby amended, by
substituting for the words "Section 3(f)" in the introductory
sentence thereof the words "Sections 3(f) and 3(i)" and by adding,
at the end thereof, the following Sections 3(g), 3(h) and 3(i):
"(g) Relationship Between Parties.
(1) Nonreliance. 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.
(2) Evaluation and Understanding.
(i) Each Party is acting for its own account and has
the capacity to evaluate (internally or through
independent professional advice) the Transaction
and has made its own decision to enter into the
Transaction; it is not relying on any
communication (written or oral) of the other
party as investment advice or as a
recommendation to enter into such transaction;
it being understood that information and
explanations related to the terms and conditions
of such transaction shall not be considered
investment advice or a
Ref No. 37662
Page 11 of 20
recommendation to enter into such transaction. No
communication (written or oral) received from
the other party shall be deemed to be an
assurance or guarantee as to the expected
results of the transaction; and
(ii) It understands the terms, conditions and risks
of the Transaction and is willing and able to
accept those terms and conditions and to assume
(and does, in fact assume) those risks,
financially and otherwise.
(3) Principal. The other party is not acting as a
fiduciary or an advisor for it in respect of this
Transaction.
(h) Exclusion from Commodities Exchange Act. (A) It is an
"eligible contract participant" within the meaning of
Section 1a(12) of the Commodity Exchange Act, as amended;
(B) this Agreement and each Transaction is subject to
individual negotiation by such party; and (C) neither this
Agreement nor any Transaction will be executed or traded on
a "trading facility" within the meaning of Section 1a(33) of
the Commodity Exchange Act, as amended.
(i) ERISA (Pension Plans). It is not a pension plan or employee
benefits plan and it is not using assets of any such plan or
assets deemed to be assets of such a plan in connection with
this Transaction.
7) Set-off. Notwithstanding any provision of this Agreement or any
other existing or future agreement (but without limiting the
provisions of Section 2(c) and Section 6, except as provided in
the next sentence), 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. The
last sentence of the first paragraph of Section 6(e) shall not
apply for purposes of this Transaction.
8) Additional Termination Events. The following Additional
Termination Events will apply, in each case with respect to BNY as
the sole Affected Party (unless otherwise provided below):
(i) Remedy of Ratings Events. BNY fails to comply with the
provisions of Paragraph 9.
(ii) BNY has not, within five (5) Business Days (without giving
effect to any grace period otherwise provided herein or
otherwise) after the occurrence of a Swap Disclosure Event
(as defined in Paragraph 4(10) below) complied with any of
the provisions set forth therein.
Ref No. 37662
Page 12 of 20
(iii) Amendment of Pooling and Servicing Agreement without Consent
of BNY. If the Trustee permits the Pooling and Servicing
Agreement to be amended in a manner which would have a
material adverse affect on BNY without first obtaining the
prior written consent of BNY. The Counterparty shall be the
sole Affected Party with respect to the occurrence of a
Termination Event described in this Paragraph 8(ii).
9) Provisions Relating to Downgrade of BNY Debt Ratings.
(i) For purposes of this Transaction:
(a) A "Collateralization Ratings Event" shall occur with
respect to BNY (or any applicable credit support
provider) if:
(x) its short-term unsecured and unsubordinated debt
rating is reduced to "P-1 on watch for
downgrade" or below, and its long-term unsecured
and unsubordinated debt is reduced to "A1 on
watch for downgrade" or below (or, if it has no
short-term unsecured and unsubordinated debt
rating, its long term rating is reduced to "Aa3
on watch for downgrade" or below) by Moody's, or
(y) its short-term unsecured and unsubordinated debt
rating is reduced below "A-1" by S&P.
Such ratings are referred to herein as the
"Qualifying Ratings."
(b) A "Ratings Event" shall occur with respect to BNY (or
any applicable credit support provider) if:
(x) its short-term unsecured and unsubordinated debt
rating is withdrawn or reduced to "P-2" or below
by ▇▇▇▇▇'▇ and its long-term unsecured and
unsubordinated debt is reduced to "A3" or below
(or, if it has no short-term unsecured and
unsubordinated debt rating, its long term rating
is reduced to "A2" or below) by ▇▇▇▇▇'▇, or
(y) its long-term unsecured and unsubordinated debt
rating is withdrawn or reduced below "BBB-" by
S&P.
For purposes of (a) and (b) above, such events include
those occurring in connection with a merger,
consolidation or other similar transaction by BNY or
any applicable credit support provider, but they shall
be deemed not to occur if, within 30 days thereafter
Ref No. 37662
Page 13 of 20
(provided, that this shall not be construed to extend
the period within which actions are to be taken as
provided in Paragraph 4(9)(ii) below), each of ▇▇▇▇▇'▇
and S&P has reconfirmed the ratings of the
Certificates, as applicable, which were in effect
immediately prior thereto. For the avoidance of doubt,
a downgrade of the rating on the Certificates could
occur in the event that BNY does not post sufficient
collateral.
(c) "Rating Agency Condition" means, with respect to any
particular proposed act or omission to act hereunder,
that the Trustee shall have received prior written
confirmation from each of ▇▇▇▇▇'▇ and S&P, and shall
have provided notice thereof to BNY, that the proposed
action or inaction would not cause a downgrade or
withdrawal of their then-current ratings of the
Certificates.
(ii) Subject, in each case set forth in (a) and (b) below, to
satisfaction of the Rating Agency Condition:
(a) Collateralization Ratings Event. If a
Collateralization Ratings Event occurs with respect to
BNY (or any applicable credit support provider), then
BNY shall, at its own expense, within thirty (30) days
of such Collateralization Ratings Event:
(w) post collateral under agreements and other
instruments approved by the Counterparty and the
NIMS Insurer, such approval not to be
unreasonably withheld, and satisfactory to
▇▇▇▇▇'▇ and S&P, which will be sufficient to
restore the immediately prior ratings of the
Certificates,
(x) assign this Transaction to a third party, the
ratings of the debt of which (or the ratings of
the debt of the credit support provider of
which) meet or exceed the Qualifying Ratings, on
terms substantially similar to this
Confirmation, which party is approved by the
Counterparty and the NIMS Insurer, such approval
not to be unreasonably withheld,
(y) obtain a guaranty of, or a contingent agreement
of, another person, the ratings of the debt of
which (or the ratings of the debt of the credit
support provider of which) meet or exceed the
Qualifying Ratings, to honor BNY's obligations
under this Agreement, provided that such other
person is approved by the Counterparty and the
NIMS Insurer, such approval not to be
unreasonably withheld, or
Ref No. 37662
Page 14 of 20
(z) establish any other arrangement approved by the
Counterparty and the NIMS Insurer, such approval
not to be unreasonably withheld and satisfactory
to ▇▇▇▇▇'▇ and S&P which will be sufficient to
restore the immediately prior ratings of their
Certificates.
(b) Ratings Event. If a Ratings Event occurs with respect
to BNY (or any applicable credit support provider),
then BNY shall, at its own expense, within ten (10)
Business Days of such Ratings Event:
(x) assign this Transaction to a third party, the
ratings of the debt of which (or the ratings of
the debt of the credit support provider of
which) meet or exceed the Qualifying Ratings, on
terms substantially similar to this
Confirmation, which party is approved by the
Counterparty and the NIMS Insurer, such approval
not to be unreasonably withheld,
(y) obtain a guaranty of, or a contingent agreement
of, another person, the ratings of the debt of
which (or the ratings of the debt of the credit
support provider of which) meet or exceed the
Qualifying Ratings, to honor BNY's obligations
under this Agreement, provided that such other
person is approved by the Counterparty and the
NIMS Insurer, such approval not to be
unreasonably withheld, or
(z) establish any other arrangement approved by the
Counterparty and the NIMS Insurer, such approval
not to be unreasonably withheld and satisfactory
to ▇▇▇▇▇'▇ and S&P which will be sufficient to
restore the immediately prior ratings of their
Certificates.
10) Compliance with Regulation AB. BNY and Counterparty agree that the
terms of the Item 1115 Agreement dated as of April 24, 2006 (the
"Regulation AB Agreement"), among IndyMac Bank, F.S.B., IndyMac
MBS, Inc., IndyMac ABS and BNY shall be incorporated by reference
into this Agreement so that Counterparty shall be an express third
party beneficiary of the Regulation AB Agreement. A copy of the
Regulation AB Agreement is attached hereto as Exhibit A.
11) Additional Provisions. Notwithstanding the terms of Sections 5 and
6 of the ISDA Form Master Agreement, if the Counterparty has
satisfied its payment obligations under Section 2(a)(i) of the
ISDA Form Master Agreement, and shall, at the time, have no future
payment or delivery obligation, whether absolute or contingent,
then unless BNY is required pursuant to appropriate proceedings to
return to the
Ref No. 37662
Page 15 of 20
Counterparty or otherwise returns to the Counterparty upon demand
of the Counterparty any portion of such payment, (a) the
occurrence of an event described in Section 5(a) of the ISDA Form
Master Agreement with respect to the Counterparty shall not
constitute an Event of Default or Potential Event of Default with
respect to the Counterparty as the Defaulting Party and (b) BNY
shall be entitled to designate an Early Termination Date pursuant
to Section 6 of the ISDA Form Master Agreement only as a result of
a Termination Event set forth in either Section 5(b)(i) or Section
5(b)(ii) of the ISDA Form Master Agreement with respect to BNY as
the Affected Party or Section 5(b)(iii) of the ISDA Form Master
Agreement with respect to BNY as the Burdened Party.
12) BNY Payments to be made to Trustee. BNY will, unless otherwise
directed by the Trustee, make all payments hereunder to the
Trustee. Payment made to the Trustee at the account specified
herein or to another account specified in writing by the Trustee
shall satisfy the payment obligations of BNY hereunder to the
extent of such payment.
5. Account Details and Settlement Information:
Payments to BNY:
The Bank of New York
Derivative Products Support Department
▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
ABA #▇▇▇▇▇▇▇▇▇
Account #▇▇▇-▇▇▇▇-▇▇▇
Reference: Interest Rate Swap/Cap
Payments to Counterparty:
Deutsche Bank Trust Company Americas
ABA# ▇▇▇▇▇▇▇▇▇
Account# ▇▇▇▇▇▇▇▇
Account Name: NYLTD Funds Control/Stars West
Ref: IndyMac INDX 2006-AR9 (Class 3-A-2)
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Page 16 of 20
6. Counterparts. This Agreement may be executed in several counterparts, each
of which shall be deemed an original but all of which together shall
constitute one and the same instrument.
Please confirm that the foregoing correctly sets forth the terms of our
agreement by executing this agreement and returning it via facsimile to
Derivative Products Support Dept., Attn: ▇▇▇▇▇ Au-▇▇▇▇▇ at ▇▇▇-▇▇▇-▇▇▇▇/5837.
Once we receive this we will send you two original confirmations for
execution.
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Page 17 of 20
We are very pleased to have executed this Transaction with you and we
look forward to completing other transactions with you in the near future.
Very truly yours,
THE BANK OF NEW YORK
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
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Page 18 of 20
The Counterparty, acting through its duly authorized signatory, hereby agrees
to, accepts and confirms the terms of the foregoing as of the Trade Date.
INDYMAC INDX MORTGAGE LOAN TRUST 2006-AR9
BY: DEUTSCHE BANK NATIONAL TRUST COMPANY, NOT INDIVIDUALLY, BUT SOLELY AS
TRUSTEE ON BEHALF OF INDYMAC INDX MORTGAGE LOAN TRUST 2006-AR9
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Associate
Ref No. 37662
Page 19 of 20
SCHEDULE I
All dates subject to adjustment in accordance with the Following Business Day
Convention.
-----------------------------------------------------
Accrual Start Accrual End Notional Amount
Date Date (in USD)
-----------------------------------------------------
5/25/2006 6/25/2006 103,852,515.23
-----------------------------------------------------
6/25/2006 7/25/2006 102,872,809.36
-----------------------------------------------------
7/25/2006 8/25/2006 101,525,617.18
-----------------------------------------------------
8/25/2006 9/25/2006 99,816,747.67
-----------------------------------------------------
9/25/2006 10/25/2006 97,753,077.66
-----------------------------------------------------
10/25/2006 11/25/2006 95,342,540.31
-----------------------------------------------------
11/25/2006 12/25/2006 92,594,108.61
-----------------------------------------------------
12/25/2006 1/25/2007 89,517,773.68
-----------------------------------------------------
1/25/2007 2/25/2007 86,124,517.95
-----------------------------------------------------
2/25/2007 3/25/2007 82,426,283.21
-----------------------------------------------------
3/25/2007 4/25/2007 78,825,897.80
-----------------------------------------------------
4/25/2007 5/25/2007 75,321,754.19
-----------------------------------------------------
5/25/2007 6/25/2007 71,912,271.25
-----------------------------------------------------
6/25/2007 7/25/2007 68,595,893.80
-----------------------------------------------------
7/25/2007 8/25/2007 65,371,092.22
-----------------------------------------------------
8/25/2007 9/25/2007 62,236,362.01
-----------------------------------------------------
9/25/2007 10/25/2007 59,190,223.36
-----------------------------------------------------
10/25/2007 11/25/2007 56,231,220.78
-----------------------------------------------------
11/25/2007 12/25/2007 53,357,922.68
-----------------------------------------------------
12/25/2007 1/25/2008 50,568,920.97
-----------------------------------------------------
1/25/2008 2/25/2008 47,862,830.69
-----------------------------------------------------
2/25/2008 3/25/2008 45,238,289.64
-----------------------------------------------------
3/25/2008 4/25/2008 42,693,957.98
-----------------------------------------------------
4/25/2008 5/25/2008 40,228,517.86
-----------------------------------------------------
5/25/2008 6/25/2008 37,840,673.10
-----------------------------------------------------
6/25/2008 7/25/2008 35,529,148.79
-----------------------------------------------------
7/25/2008 8/25/2008 33,292,690.98
-----------------------------------------------------
8/25/2008 9/25/2008 31,130,066.28
-----------------------------------------------------
9/25/2008 10/25/2008 29,040,061.59
-----------------------------------------------------
10/25/2008 11/25/2008 27,021,483.73
-----------------------------------------------------
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11/25/2008 12/25/2008 25,073,159.09
-----------------------------------------------------
12/25/2008 1/25/2009 23,193,933.36
-----------------------------------------------------
1/25/2009 2/25/2009 21,382,671.20
-----------------------------------------------------
2/25/2009 3/25/2009 19,638,255.88
-----------------------------------------------------
3/25/2009 4/25/2009 17,959,589.05
-----------------------------------------------------
4/25/2009 5/25/2009 16,345,590.38
-----------------------------------------------------
5/25/2009 6/25/2009 14,795,197.29
-----------------------------------------------------
6/25/2009 7/25/2009 13,307,364.65
-----------------------------------------------------
7/25/2009 8/25/2009 11,881,064.50
-----------------------------------------------------
8/25/2009 9/25/2009 10,515,285.76
-----------------------------------------------------
9/25/2009 10/25/2009 9,209,033.97
-----------------------------------------------------
10/25/2009 11/25/2009 7,961,331.00
-----------------------------------------------------
11/25/2009 12/25/2009 6,771,214.77
-----------------------------------------------------
12/25/2009 1/25/2010 5,637,739.02
-----------------------------------------------------
1/25/2010 2/25/2010 4,559,973.04
-----------------------------------------------------
2/25/2010 3/25/2010 3,977,074.24
-----------------------------------------------------
3/25/2010 4/25/2010 3,440,784.58
-----------------------------------------------------
4/25/2010 5/25/2010 2,950,337.97
-----------------------------------------------------
5/25/2010 6/25/2010 2,504,980.89
-----------------------------------------------------
6/25/2010 7/25/2010 2,103,972.21
-----------------------------------------------------
7/25/2010 8/25/2010 1,746,582.96
-----------------------------------------------------
8/25/2010 9/25/2010 1,432,096.15
-----------------------------------------------------
9/25/2010 10/25/2010 1,159,806.58
-----------------------------------------------------
10/25/2010 11/25/2010 929,020.61
-----------------------------------------------------
11/25/2010 12/25/2010 739,056.01
-----------------------------------------------------
12/25/2010 1/25/2011 589,241.76
-----------------------------------------------------
1/25/2011 2/25/2011 478,917.84
-----------------------------------------------------
2/25/2011 3/25/2011 407,435.10
-----------------------------------------------------
Ref No. 37662