Exhibit 4.3
NOTE GUARANTY INSURANCE
POLICY
POLICY NUMBER: 490190
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OBLIGATIONS:
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$650,000,000
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IndyMac Home Equity Mortgage Loan
Asset-Backed Trust, Series 2006-H4
Home Equity Mortgage Loan
Asset-Backed Notes, Series 2006-H4
MBIA Insurance Corporation (the
“Insurer”), in consideration of the payment of the
premium and subject to the terms of this Note Guaranty Insurance
Policy (this “Policy”), hereby unconditionally and
irrevocably guarantees to any Owner that an amount equal to each
full and complete Insured Payment will be received from the Insurer
by Deutsche Bank National Trust Company, or its successors, as
indenture trustee for the Owners (the “Indenture
Trustee”), on behalf of the Owners, for distribution by the
Indenture Trustee to each Owner of each Owner’s proportionate
share of the Insured Payment. The Insurer’s obligations
hereunder with respect to a particular Insured Payment shall be
discharged to the extent funds equal to the applicable Insured
Payment are received by the Indenture Trustee, whether or not those
funds are properly applied by the Indenture Trustee. Insured
Payments will be made only at the time set forth in this Policy,
and no accelerated Insured Payments will be made regardless of any
acceleration of the Obligations, unless the acceleration is at the
sole option of the Insurer.
Notwithstanding the foregoing, this
Policy does not cover shortfalls, if any, attributable to the
liability of the Issuer, any REMIC or the Indenture Trustee for
withholding taxes, if any (including interest and penalties in
respect of any such liability).
The Insurer will pay any Insured
Payment that is a Preference Amount on the Business Day following
receipt on a Business Day by the Fiscal Agent (as described below)
of (a) a certified copy of the order requiring the return of a
preference payment, (b) an opinion of counsel satisfactory to
the Insurer that such order is final and not subject to appeal,
(c) an assignment in such form as is reasonably required by
the Insurer, irrevocably assigning to the Insurer all rights and
claims of the Owner relating to or arising under the Obligations
against the debtor which made such preference payment or otherwise
with respect to such preference payment and (d) appropriate
instruments to effect the appointment of the Insurer as agent for
such Owner in any legal proceeding related to such preference
payment, such instruments being in a form satisfactory to the
Insurer, provided that if such documents are received after
12:00 noon, New York City time, on such Business Day,
they will be deemed to be received on the following Business Day.
Such payments shall be disbursed to the receiver or trustee in
bankruptcy named in the final order of the court exercising
jurisdiction on behalf of the Owner and not to any Owner directly
unless such Owner has returned principal or interest paid on the
Obligations to such receiver or trustee in bankruptcy, in which
case such payment shall be disbursed to such Owner.
The Insurer will pay any other
amount payable hereunder no later than 12:00 noon,
New York City time, on the later of the Payment Date on which
the related Deficiency Amount is due or the first Business Day
following receipt in New York, New York on a Business Day
by
U.S. Bank Trust National
Association, as Fiscal Agent for the Insurer, or any successor
fiscal agent appointed by the Insurer (the “Fiscal
Agent”), of a Notice (as described below), provided that if
such Notice is received after 12:00 noon, New York City
time, on such Business Day, it will be deemed to be received on the
following Business Day. If any such Notice received by the Fiscal
Agent is not in proper form or is otherwise insufficient for the
purpose of making claim hereunder, it shall be deemed not to have
been received by the Fiscal Agent for purposes of this paragraph,
and the Insurer or the Fiscal Agent, as the case may be, shall
promptly so advise the Indenture Trustee and the Indenture Trustee
may submit an amended Notice.
Insured Payments due hereunder,
unless otherwise stated herein, will be disbursed by the Fiscal
Agent to the Indenture Trustee on behalf of the Owners by wire
transfer of immediately available funds in the amount of the
Insured Payment less, in respect of Insured Payments related to
Preference Amounts, any amount held by the Indenture Trustee for
the payment of such Insured Payment and legally available
therefor.
The Fiscal Agent is the agent of the
Insurer only, and the Fiscal Agent shall in no event be liable to
Owners for any acts of the Fiscal Agent or any failure of the
Insurer to deposit, or cause to be deposited, sufficient funds to
make payments due under this Policy.
Subject to the terms of the
Agreement, the Insurer shall be subrogated to the rights of each
Owner to receive payments under the Obligations to the extent of
any payment by the Insurer hereunder.
As used herein, the following terms
shall have the following meanings:
“ Agreement ”
means, collectively, the Indenture, dated as of December 21, 2006,
between IndyMac Home Equity Mortgage Loan Asset-Backed Trust,
Series 2006-H4, as Issuer, and the Indenture Trustee, as indenture
trustee, and the Sale and Servicing Agreement, dated as of December
12, 2006, among the Issuer, IndyMac Bank, F.S.B., as Seller and
Servicer, IndyMac ABS, Inc., as Depositor, and the Indenture
Trustee, as indenture trustee, in each case without regard to any
amendment or supplement thereto, unless such amendment or
supplement has been approved in writing by the Insurer.
“ Available Funds
” means, with respect