EXHIBIT 99.1
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INDYMAC MBS, INC.
Depositor
INDYMAC BANK, F.S.B.
Seller and Servicer
DEUTSCHE BANK NATIONAL TRUST COMPANY
Trustee
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POOLING AND SERVICING AGREEMENT
Dated as of April 1, 2007
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INDYMAC INDX MORTGAGE LOAN TRUST
2007-AR11
MORTGAGE PASS-THROUGH CERTIFICATES
Series 2007-AR11
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TABLE OF CONTENTS
Page
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ARTICLE ONE DEFINITIONS..........................................................................................9
Section 1.01 Definitions............................................................................9
Section 1.02 Rules of Construction.................................................................40
ARTICLE TWO CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES.........................................42
Section 2.01 Conveyance of Mortgage Loans..........................................................42
Section 2.02 Acceptance by the Trustee of the Mortgage Loans.......................................45
Section 2.03 Representations, Warranties, and Covenants of the Seller and the Servicer.............47
Section 2.04 Representations and Warranties of the Depositor as to the Mortgage Loans..............49
Section 2.05 Delivery of Opinion of Counsel in Connection with Substitutions.......................49
Section 2.06 Execution and Delivery of Certificates................................................49
Section 2.07 REMIC Matters.........................................................................50
ARTICLE THREE ADMINISTRATION AND SERVICING OF MORTGAGE LOANS.....................................................51
Section 3.01 Servicer to Service Mortgage Loans....................................................51
Section 3.02 [Reserved]............................................................................52
Section 3.03 Rights of the Depositor and the Trustee in Respect of the Servicer....................52
Section 3.04 [Reserved]............................................................................52
Section 3.05 Trustee to Act as Servicer............................................................52
Section 3.06 Collection of Mortgage Loan Payments; Certificate Account; Distribution Account.......52
Section 3.07 Collection of Taxes, Assessments and Similar Items; Escrow Accounts...................55
Section 3.08 Access to Certain Documentation and Information Regarding the Mortgage Loans..........56
Section 3.09 Permitted Withdrawals from the Certificate Account and the Distribution Account.......56
Section 3.10 Maintenance of Hazard Insurance; Maintenance of Primary Insurance Policies............57
Section 3.11 Enforcement of Due-On-Sale Clauses; Assumption Agreements.............................58
Section 3.12 Realization Upon Defaulted Mortgage Loans.............................................59
Section 3.13 Trustee to Cooperate; Release of Mortgage Files.......................................61
Section 3.14 Documents, Records and Funds in Possession of the Servicer to be Held for the Trustee.62
Section 3.15 Servicing Compensation................................................................62
Section 3.16 Access to Certain Documentation.......................................................63
Section 3.17 Annual Statement as to Compliance.....................................................63
Section 3.18 Errors and Omissions Insurance; Fidelity Bonds........................................63
Section 3.19 Notification of Adjustments...........................................................63
Section 3.20 Prepayment Charges....................................................................64
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ARTICLE FOUR DISTRIBUTIONS AND ADVANCES BY THE SERVICER..........................................................66
Section 4.01 Advances..............................................................................66
Section 4.02 Priorities of Distribution............................................................67
Section 4.03 Cross-Collateralization; Adjustments to Available Funds...............................70
Section 4.04 [Reserved]............................................................................71
Section 4.05 Allocation of Realized Losses.........................................................71
Section 4.06 Monthly Statements to Certificateholders..............................................72
ARTICLE FIVE THE CERTIFICATES....................................................................................76
Section 5.01 The Certificates......................................................................76
Section 5.02 Certificate Register; Registration of Transfer and Exchange of Certificates...........76
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates.....................................80
Section 5.04 Persons Deemed Owners.................................................................80
Section 5.05 Access to List of Certificateholders' Names and Addresses.............................80
Section 5.06 Maintenance of Office or Agency.......................................................81
ARTICLE SIX THE DEPOSITOR AND THE SERVICER.......................................................................82
Section 6.01 Respective Liabilities of the Depositor and the Servicer..............................82
Section 6.02 Merger or Consolidation of the Depositor or the Servicer..............................82
Section 6.03 Limitation on Liability of the Depositor, the Seller, the Servicer, and Others........82
Section 6.04 Limitation on Resignation of the Servicer.............................................83
ARTICLE SEVEN DEFAULT 84
Section 7.01 Events of Default.....................................................................84
Section 7.02 Trustee to Act; Appointment of Successor..............................................85
Section 7.03 Notification to Certificateholders....................................................86
ARTICLE EIGHT CONCERNING THE TRUSTEE.............................................................................88
Section 8.01 Duties of the Trustee.................................................................88
Section 8.02 Certain Matters Affecting the Trustee.................................................88
Section 8.03 Trustee Not Liable for Certificates or Mortgage Loans.................................90
Section 8.04 Trustee May Own Certificates..........................................................90
Section 8.05 Trustee's Fees and Expenses...........................................................90
Section 8.06 Eligibility Requirements for the Trustee..............................................91
Section 8.07 Resignation and Removal of the Trustee................................................91
Section 8.08 Successor Trustee.....................................................................92
Section 8.09 Merger or Consolidation of the Trustee................................................93
Section 8.10 Appointment of Co-Trustee or Separate Trustee.........................................93
Section 8.11 Tax Matters...........................................................................94
ARTICLE NINE TERMINATION 97
Section 9.01 Termination upon Liquidation or Purchase of the Mortgage Loans........................97
Section 9.02 Final Distribution on the Certificates................................................98
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Section 9.03 Additional Termination Requirements...................................................99
ARTICLE TEN MISCELLANEOUS PROVISIONS............................................................................100
Section 10.01 Amendment............................................................................100
Section 10.02 Recordation of Agreement; Counterparts...............................................101
Section 10.03 Governing Law........................................................................102
Section 10.04 Intention of Parties.................................................................102
Section 10.05 Notices. 102
Section 10.06 Severability of Provisions...........................................................103
Section 10.07 Assignment...........................................................................103
Section 10.08 Limitation on Rights of Certificateholders...........................................103
Section 10.09 Inspection and Audit Rights..........................................................104
Section 10.10 Certificates Nonassessable and Fully Paid............................................104
Section 10.11 Official Record......................................................................104
Section 10.12 Protection of Assets.................................................................105
Section 10.13 Qualifying Special Purpose Entity....................................................105
ARTICLE ELEVEN EXCHANGE ACT REPORTING...........................................................................105
Section 11.01 Filing Obligations...................................................................105
Section 11.02 Form 10-D Filings....................................................................105
Section 11.03 Form 8-K Filings.....................................................................106
Section 11.04 Form 10-K Filings....................................................................107
Section 11.05 ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification.........................................................109
Section 11.06 Form 15 Filing.......................................................................109
Section 11.07 Report on Assessment of Compliance and Attestation...................................110
Section 11.08 Use of Subcontractors................................................................111
Section 11.09 Amendments...........................................................................111
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SCHEDULES
Schedule I: Mortgage Loan Schedule...................................................................S-I-1
Schedule II: Representations and Warranties of the Seller/Servicer...................................S-II-1
Schedule III: Representations and Warranties as to the Mortgage Loans................................S-III-1
Schedule IV: Reserved................................................................................S-IV-1
Schedule V: Form of Monthly Report...................................................................S-V-1
EXHIBITS
Exhibit A: Form of Senior Certificate (excluding Notional Amount Certificates)........................A-1
Exhibit B: Form of Subordinated Certificate...........................................................B-1
Exhibit C: Form of Class A-R Certificate..............................................................C-1
Exhibit D: Form of Notional Amount Certificate........................................................D-1
Exhibit E Form of Reverse of Certificates............................................................E-1
Exhibit F-1: Form of Class P Certificates.............................................................F-1-1
Exhibit F-2: Form of Class L Certificates.............................................................F-2-1
Exhibit G-1: Form of Initial Certification of Trustee ................................................G-1-1
Exhibit G-2: Form of Delay Delivery Certification.....................................................G-2-1
Exhibit H: Form of Final Certification of Trustee.....................................................H-1
Exhibit I: Form of Transfer Affidavit.................................................................I-1
Exhibit J: Form of Transferor Certificate.............................................................J-1
Exhibit K: Form of Investment Letter (Non-Rule 144A)..................................................K-1
Exhibit L: Form of Rule 144A Letter...................................................................L-1
Exhibit M: Form of Request for Release (for Trustee)..................................................M-1
Exhibit N: Request for Release of Documents...........................................................N-1
Exhibit O-1: Form of Certification To Be Provided By The Depositor With Form 10-K.......................O-1
Exhibit O-2: Form of Trustee's Officer's Certificate....................................................O-2
iv
Exhibit P: [Reserved].................................................................................P-1
Exhibit Q: Reporting Responsibility...................................................................Q-1
Exhibit R: Form of Performance Certification (Trustee)................................................R-1
Exhibit S: Form of Servicing Criteria To Be Addressed in Assessment
of Compliance Statement................................................................S-1
Exhibit T: List of Item 1119 Parties..................................................................T-1
Exhibit U: Form of ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification (Replacement of Servicer).............................U-1
v
THIS POOLING AND SERVICING AGREEMENT, dated as of April 1, 2007,
among INDYMAC MBS, INC., a Delaware corporation, as depositor (the
"Depositor"), IndyMac Bank, F.S.B. ("IndyMac"), a federal savings bank, as
seller (in that capacity, the "Seller") and as servicer (in that capacity, the
"Servicer"), and Deutsche Bank National Trust Company, a national banking
association, as trustee (the "Trustee"),
W I T N E S S E T H T H A T
In consideration of the mutual agreements set forth in this
Agreement, the parties agree as follows:
P R E L I M I N A R Y S T A T E M E N T
The Depositor is the owner of the Trust Fund that is hereby conveyed
to the Trustee in return for the Certificates. As provided in this Agreement,
the Trustee shall elect that the Trust Fund (exclusive of any amounts in
respect of waived Prepayment Charges paid by the Servicer to the Class P
Certificates pursuant to Section 3.20(b) and any amounts in respect of waived
Late Payment Fees paid by the Servicer to the Class L Certificates pursuant to
Section 3.21(b)) be treated for federal income tax purposes as comprising
three real estate mortgage investment conduits (each, a "REMIC" or, in the
alternative, "REMIC 1," "REMIC 2" and the "Master REMIC"). Each Certificate,
other than the Class A-R Certificate, will represent ownership of one or more
regular interests in the Master REMIC for purposes of the REMIC Provisions.
The Class A-R represents ownership of the sole class of residual interest in
each REMIC created under this Agreement. The Master REMIC will hold as assets
the several classes of uncertificated REMIC 2 Interests (other than the Class
R-2 Interest). REMIC 2 will hold as assets the several classes of
uncertificated REMIC 1 Interests (other than the Class R-1 Interest). REMIC 1
will hold as assets all property of the Trust Fund. Each REMIC 2 Interest
(other than the Class R-2 Interest) is hereby designated as a regular interest
in REMIC 2. Each REMIC 1 Interest (other than the Class R-1 Interest) is
hereby designated as a regular interest in REMIC 1. The latest possible
maturity date of all REMIC regular interests created in this Agreement shall
be the Latest Possible Maturity Date. All amounts in respect of waived
Prepayment Charges paid by the Servicer to the Class P Certificates pursuant
to Section 3.20(b) will be treated as paid directly by the Servicer to the
Class P Certificates and not as paid by or through any REMIC created under
this Agreement. All amounts in respect of waived Late Payment Fees paid by the
Servicer to the Class L Certificates pursuant to Section 3.21(b) will be
treated as paid directly by the Servicer to the Class L Certificates and not
as paid by or through any REMIC created under this Agreement or by or through
the Grantor Trust described in this Agreement.
REMIC 1
The REMIC 1 Regular Interests will have the initial principal
balance, Pass-Through Rates and corresponding Loan Groups as set forth in the
following table:
Initial Principal
Balance or
---------- Pass-Through Corresponding
REMIC 1 Interests Notional Amount Rate Loan Group
----------------- --------------- ---- ----------
A-1 (0.9% of the Assumed Balance of
Loan Group 1) (1) (2) 1
B-1 (0.1% of the Assumed Balance of
Loan Group 1) (1) (2) 1
C-1 (Excess of Loan Group 1) (1) (2) 1
A-2 (0.9% of the Assumed Balance of
Loan Group 2) (1) (2) 2
1
B-2 (0.1% of the Assumed Balance of
Loan Group 2) (1) (2) 2
C-2 (Excess of Loan Group 2) (1) (2) 2
1-P $100 (3) N/A
1-$100 $100 (4) N/A
R-1 (5) (5) N/A
---------------
(1) Each Class A Interest will have a principal balance initially equal to
0.9% of the Assumed Balance of its corresponding Loan Group. Each Class B
Interest will have a principal balance initially equal to 0.1% of the the
Assumed Balance of its corresponding Loan Group. The initial principal balance
of each Class C Interest will equal the excess of the initial aggregate
principal balance of its corresponding Loan Group over the initial aggregate
principal balances of the Class A and Class B Interests (and of the Class
1-$100 Interest, in the case of the Class C-1 Interest) corresponding to such
Loan Group.
(2) The Weighted Average Adjusted Net Mortgage Rate of the Mortgage Loans in
the corresponding Loan Group.
(3) The Class 1-P Interests will not bear interest. The Class 1-P Interests
will be entitled to 100% of any Prepayment Charges paid on the Mortgage Loans.
(4) The Weighted Average Adjusted Net Mortgage Rate of the Mortgage Loans in
Loan Group 2.
(5) The Class R-1 Interest is the sole class of residual interest in REMIC 1.
It has no principal balance and pays no principal or interest.
On each Distribution Date, the Available Funds shall be distributed
with respect to the REMIC 1 Interests in the following manner:
(1) Interest is to be distributed with respect to each REMIC 1 Interest
according to the formulas described above;
(2) Principal Amounts and Realized Losses will be allocated to make the
balances of the Class 1-P and Class 1-$100 Interests equal to the principal
balances of the Class P and Class A-R Certificates, respectively, for such
Distribution Date.
(3) If Cross-Over Situation does not exist with respect to any Class of
Interests, then Principal Amounts and Realized Losses arising with respect to
each Loan Group will be allocated: first to cause the Loan Group's
corresponding Class A and Class B Interests to equal, respectively, 0.9% of
the Assumed Balance and 0.1% of the Assumed Balance; and second to the Loan
Group's corresponding Class C Interest;
(4) If a Cross-Over Situation exists with respect to the Class A and Class B
Interests then:
(a) if the Calculation Rate in respect of the outstanding Class A and
Class B Interests is less than the Subordinate Pass-Through Rate,
Principal Relocation Payments will be made proportionately to the
outstanding Class A Interests prior to any other distributions of
principal from each such Loan Group; and
(b) if the Calculation Rate in respect of the outstanding Class A and
Class B Interests is greater than the Subordinate Pass-Through Rate,
Principal Relocation Payments will be made
2
proportionately to the outstanding Class B Interests prior to any
other distributions of principal from each such Loan Group.
In case of either (a) or (b), Principal Relocation Payments will be made so as
to cause the Calculation Rate in respect of the outstanding Class A and Class
B Interests to equal the Subordinate Pass-Through Rate. With respect to each
Loan Group, if (and to the extent that) the sum of (a) the principal payments
comprising the Principal Amount received during the Due Period and (b) the
Realized Losses on the Mortgage Loans in that Loan Group, are insufficient to
make the necessary reductions of principal on the Class A and Class B
Interests, then interest will be added to the Loan Group's other REMIC 1
Interests that are not receiving Principal Relocation Payments, in proportion
to their principal balances.
(c) Unless otherwise required to achieve the Calculation Rate, the
outstanding aggregate Class A and Class B Interests for all Loan
Groups will not be reduced below 1% of the excess of (i) the
aggregate Stated Principal Balances of the Mortgage Loans as of the
end of any Due Period (reduced by any Principal Prepayments received
after the Due Period that are to be distributed on the Distribution
Date related to the Due Period)over (ii) the Certificate Balance of
the Senior Certificates (excluding the Class A-R Certificates) for
all Certificate Groups as of the related Distribution Date (after
taking into account distributions of principal on such Distribution
Date).
If (and to the extent that) the limitation in paragraph (c) prevents the
distribution of principal to the Class A and Class B Interests of a Loan
Group, and if the Loan Group's Class C Interest has already been reduced to
zero, then the excess principal from that Loan Group will be paid to the Class
C Interests of the other Loan Group, the aggregate Class A and Class B
Interests of which are less than 1% of the Assumed Balance. If the Mortgage
Loans in the Loan Group of the Class C Interest that receives such payment has
a Weighted Average Adjusted Net Mortgage Rate below the Weighted Average
Adjusted Net Mortgage Rate of the Loan Group making the payment, then the
payment will be treated by the REMIC 1 as a Realized Loss. Conversely, if the
Loan Group of the Class C Interest that receives such payment has a Weighted
Average Adjusted Net Mortgage Rate above the Weighted Average Adjusted Net
Mortgage Rate of the Loan Group making the payment, then the payment will be
treated by the REMIC 1 as a reimbursement for prior Realized Losses.
REMIC 2
The REMIC 2 Regular Interests will have the initial principal
balance, Pass-Through Rates and corresponding Loan Groups as set forth in the
following table:
Initial Principal Pass-Through Corresponding Class of
REMIC 2 Interests Balance Rate Certificates or Components
----------------- ------- ---- --------------------------
Class 2-1-A-1 (1) Variable(2) Class 1-A-1, 1-X
Class 2-2-A-1 (1) Variable(3) Class 2-A-1, 2-X
Class 2-C-M-1 (1) Variable(2) Class C-M-1
Class 2-C-M-2 (1) Variable(3) Class C-M-2
Class 2-$100 (1) Variable(2) Class A-R
Class 2-B-1 (1) Variable(4) Class B-1, B-IO
Class 2-B-2 (1) Variable(4) Class B-2, B-IO
Class 2-B-3 (1) Variable(4) Class B-3
Class 2-B-4 (1) Variable(4) Class B-4
Class 2-B-5 (1) Variable(4) Class B-5
Class 2-B-6 (1) Variable(4) Class B-6
3
Class 2-P-1 $100 (5) Class P
Class R-2 (6) (6) N/A
(1) On each Distribution Date, Realized Losses and payments of principal will
be allocated to each REMIC 2 Regular Interest in the same amounts as they are
allocated to their Corresponding Class of Certificates (or Corresponding
Components, in the case of the 2-C-M-1 and 2-C-M-2 Interests).
(2) These Interests will bear interest during each Accrual Period for any
Distribution Date at a per annum rate equal to the Weighted Average Adjusted
Net Mortgage Rate of the Group 1 Mortgage Loans as of that Distribution Date.
(3) These Interests will bear interest during each Interest Accrual Period for
any Distribution Date at a per annum rate equal to the Weighted Average
Adjusted Net Mortgage Rate of the Group 2 Mortgage Loans as of that
Distribution Date.
(4) The Pass-Through Rate for each such Class for each Interest Accrual Period
for any Distribution Date will be a per annum rate equal to the Calculation
Rate.
(5) The Class 2-P Interest will not bear interest, and will be entitled to
100% of any Prepayment Charges paid on the Class P Certificates.
(6) The Class R-2 Interest is the sole class of residual interest in REMIC 2.
It has no principal balance and pays no principal or interest.
The Master REMIC
The following table sets forth characteristics of the Certificates,
together with the minimum denominations and integral multiples in excess
thereof in which such Classes shall be issuable (except that one Certificate
of each Class of Senior and Subordinated Certificates may be issued in a
different amount):
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Initial Class Pass-Through Minimum Integral Multiples in
Class Designation Certificate Balance Rate Denomination Excess of Minimum
----------------------------------------------------------------------------------------------------------------
Class 1-A-1 $ 120,269,000 Variable(1) $ 25,000 $1,000
----------------------------------------------------------------------------------------------------------------
Class 1-X $ 120,269,000 (2) 0.300% $ 25,000 (3) $1,000 (3)
----------------------------------------------------------------------------------------------------------------
Class 2-A-1 $ 110,731,000 Variable(4) $ 25,000 $1,000
----------------------------------------------------------------------------------------------------------------
Class 2-X $ 110,731,000 (2) 0.300% $ 25,000 (3) $1,000 (3)
----------------------------------------------------------------------------------------------------------------
Class C-M $ 23,957,000 Variable(5) $ 25,000 $1,000
----------------------------------------------------------------------------------------------------------------
Class A-R $ 100 Variable(6) $ 100 N/A
----------------------------------------------------------------------------------------------------------------
Class B-1 $ 7,094,000 Variable(7) $ 25,000 $1,000
----------------------------------------------------------------------------------------------------------------
Class B-2 $ 5,425,000 Variable(7) $ 25,000 $1,000
----------------------------------------------------------------------------------------------------------------
Class B-3 $ 3,756,000 Variable(7) $ 25,000 $1,000
----------------------------------------------------------------------------------------------------------------
Class B-4 $ 3,060,000 Variable(7) $ 100,000 $1,000
----------------------------------------------------------------------------------------------------------------
Class B-5 $ 2,364,000 Variable(7) $ 100,000 $1,000
----------------------------------------------------------------------------------------------------------------
Class B-6 $ 1,530,758 Variable(7) $ 100,000 $1,000
----------------------------------------------------------------------------------------------------------------
Class P $ 100 (8) $ 100 N/A
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4
(1) The Pass-Through Rate for the Class 1-A-1 Certificates for each Interest
Accrual Period will equal the Weighted Average Adjusted Net Mortgage Rate of
the Group 1 Mortgages minus 0.300%, but not less than 0.00%. The Pass-Through
Rate for the Class 1-A-1 Certificates for the Interest Accrual Period related
to the first Distribution Date is 5.674542151% per annum.
(2) This Class of Certificates will be Notional Amount Certificates, will have
no Class Certificate Balance, will pay no principal and will be entitled to
distributions of interest on its Notional Amount.
(3) Minimum denomination is based on the Notional Amount of the Class.
(4) The Pass-Through Rate for the Class 2-A-1 Certificates for each Interest
Accrual Period will equal the Weighted Average Adjusted Net Mortgage Rate of
the Group 2 Mortgage Loans minus 0.300%, but not less than 0.00%. The
Pass-Through Rate for the Class 2-A-1 Certificates for the Interest Accrual
Period related to the first Distribution Date is 6.459224106% per annum.
(5) The Pass-Through rate for the Class C-M Certificates for the Interest
Accrual Period related to each Distribution Date will equal the weighted
average of the Pass-Through Rates on its Components. The Pass-Through Rate on
each Component for the Interest Accrual Period for each Distribution Date
will equal the Weighted Average Adjusted Net Mortgage Rate for the Mortgage
Loans in the related Loan Group. Each Component of the Class C-M Certificates
will be treated as a REMIC Regular Interest for federal income tax purposes.
The Pass-Through Rate for the Class C-M Certificates for the Interest Accrual
Period related to the first Distribution Date is 6.350686392% per annum.
(6) The Pass-Through Rate for the Class A-R Certificates for the Interest
Accrual Period related to each Distribution Date will equal the Weighted
Average Adjusted Net Mortgage Rate of the Group 1 Mortgage Loans. The
Pass-Through Rate for the Class A-R Certificates for the Interest Accrual
Period related to the first Distribution Date is 5.▇▇▇▇▇▇▇▇% per annum.
(7) The Pass-Through Rate for this Class of Subordinated Certificates for each
Interest Accrual Period for any Distribution Date will be a per annum rate
equal to the Subordinated Pass-Through Rate. The Pass-Through Rate for this
Class of Subordinated Certificates for the Interest Accrual Period related to
the first Distribution Date is 6.350671994% per annum. For federal income tax
purposes, the Pass-Through Rate for each Class of Subordinated Certificates
will be the Calculation Rate.
(8) The Class P Certificates will not be entitled to any interest, but will be
entitled to 100% of any Prepayment Charges collected on the Mortgage Loans.
All amounts in respect of waived Prepayment Charges paid by the Servicer to
the Class P Certificates pursuant to the Section 3.20(b) will be treated as
paid directly by the Servicer to the Class P Certificates and not as paid by
or through any REMIC created under this Agreement.
For federal income tax purposes, the Trustee will treat Late Payment
Fees as beneficially owned by the Holder of the Class L Certificates and shall
treat such portion of the Trust Fund as an interest in a "trust" within the
meaning of Treasury regulations section 301.7701-4(a) (the "Grantor Trust").
The foregoing REMIC structure is intended to cause all of the cash
from the Mortgage Loans to flow through to the Master REMIC as cash flow on a
REMIC regular interest, without creating any shortfall--actual or potential
(other than for credit losses) to any REMIC regular interest.
For any purpose for which the Pass-Through Rates is calculated, the
interest rate on the Mortgage Loans shall be appropriately adjusted to account
for the difference between the monthly day count convention of the Mortgage
Loans and the monthly day count convention of the regular interests issued
5
by each of the REMICs. For purposes of calculating the Pass-Through Rates for
each of the interests issued by REMIC 1 and the Master REMIC such rates shall
be adjusted to equal a monthly day count convention based on a 30 day month
for each Due Period and a 360-day year so that the Mortgage Loans and all
regular interests will be using the same monthly day count convention.
Set forth below are designations of Classes of Certificates to the categories
used in this Agreement:
Accretion Directed Certificates......... None.
Accrual Certificates.................... None.
Book-Entry Certificates................. All Classes of Certificates other than the Physical
Certificates.
Class P Certificates.................... Class P Certificates.
COFI Certificates....................... None.
Components.............................. Class C-M-1 Component and Class C-M-2 Component.
For purposes of calculating distributions of
principal and interest and allocation of losses, the
Class C-M Certificates will be comprised of two
components, having the designations and Initial
Component Balances set forth below:
Designation Initial Component Balance
----------- -------------------------
C-M-1 Component $12,473,000
C-M-2 Component $11,484,000
Component Certificates.................. Class C-M Certificates.
Delay Certificates...................... All interest-bearing Classes of Certificates other
than any Non-Delay Certificates.
ERISA-Restricted Certificates,.......... The Residual Certificates and the Private
Certificates; the Retained Certificates until they
have been the subject of an ERISA-Qualifying
Underwriting; and Certificates that cease to have a
rating of BBB- (or its equivalent), or better, from
at least one Rating Agency.
Group 1 Senior Certificates............. Class 1-A-1, Class 1-X and Class A-R Certificates
and Class C-M-1 Component.
Group 1 Certificates.................... Group 1 Senior Certificates and the portion of the
Subordinated Certificates related to Loan Group 1.
6
Group 2 Senior Certificates............. Class 2-A-1 and Class 2-X Certificates and Class
C-M-2 Component.
Group 2 Certificates.................... Group 2 Senior Certificates and the portion of the
Subordinated Certificates related to Loan Group 2.
LIBOR Certificates...................... None.
Non-Delay Certificates.................. LIBOR Certificates.
Notional Amount Certificates............ Class 1-X and Class 2-X Certificates.
Notional Amount Components.............. None.
Offered Certificates.................... All Classes of Certificates other than the Private
Certificates.
Physical Certificates................... Class A-R Certificates and the Private Certificates.
Planned Principal Classes............... None.
Principal Only Certificates............. None.
Private Certificates.................... Class P, Class L, Class B-4, Class B-5 and Class B-6
Certificates.
Rating Agencies......................... ▇▇▇▇▇'▇ and S&P.
Regular Certificates.................... All Classes of Certificates other than the Class A-R
Certificates.
Residual Certificate.................... Class A-R Certificates.
Retained Certificates................... Class B-1, Class B-2, Class B-3, Class B-4, Class
B-6, Class P and Class L Certificates.
Senior Certificates..................... Class 1-A-1, Class 1-X, Class 2-A-1, Class 2-X,
Class C-M and Class A-R Certificates.
Senior Certificate Group................ The Group 1 Senior Certificates and the Group 2
Senior Certificates, as applicable.
Subordinated Certificates............... Class B-1, Class B-2, Class B-3, Class B-4, Class
B-5 and Class B-6 Certificates.
Targeted Principal Classes.............. None.
Targeted Principal Component............ None.
7
With respect to any of the foregoing designations as to which the
corresponding reference is "None," all defined terms and provisions in this
Agreement relating solely to such designations shall be of no force or effect,
and any calculations in this Agreement incorporating references to such
designations shall be interpreted without reference to such designations and
amounts. Defined terms and provisions in this Agreement relating to
statistical rating agencies not designated above as Rating Agencies shall be
of no force or effect.
8
ARTICLE ONE
DEFINITIONS
Section 1.01 Definitions.
Unless the context requires a different meaning, capitalized terms
are used in this Agreement as defined below.
Accretion Directed Certificates: As specified in the Preliminary
Statement.
Accretion Direction Rule: Not applicable.
Accrual Amount: Not applicable.
Accrual Certificates: As specified in the Preliminary Statement.
Accrual Termination Date: Not applicable.
Additional Designated Information: As defined in Section 11.02.
Adjusted Mortgage Rate: As to each Mortgage Loan and at any time, the
per annum rate equal to the Mortgage Rate less the Servicing Fee Rate.
Adjusted Net Mortgage Rate: As to each Mortgage Loan and any
Distribution Date, the per annum rate equal to the Mortgage Rate of that
Mortgage Loan (as of the Due Date in the month preceding the month in which
such Distribution Date occurs) less the Expense Fee Rate for that Mortgage
Loan.
Adjustment Date: A date specified in each Mortgage Note as a date on
which the Mortgage Rate on the related Mortgage Loan is subject to adjustment.
Advance: As to a Loan Group, the payment required to be made by the
Servicer with respect to any Distribution Date pursuant to Section 4.01, the
amount of any such payment being equal to the aggregate of payments of
principal and interest (net of the Servicing Fee) on the Mortgage Loans in
such Loan Group that were due during the related Due Period and not received
as of the close of business on the related Determination Date, together with
an amount equivalent to interest on each REO Property, net of any net income
from such REO Property, less the aggregate amount of any such delinquent
payments that the Servicer has determined would constitute a Nonrecoverable
Advance if advanced.
Advance Notice: As defined in Section 4.01(b).
Advance Deficiency: As defined in Section 4.01(b).
Affiliate: With respect to any Person, any other Person controlling,
controlled or under common control with such Person. For purposes of this
definition, "control" means the power to direct the management and policies of
a Person, directly or indirectly, whether through ownership of voting
securities, by contract, or otherwise and "controlling" and "controlled" shall
have meanings correlative to the foregoing. Affiliates also include any
entities consolidated with the requirements of generally accepted accounting
principles.
Aggregate Subordinated Percentage: With respect to any Distribution
Date, the fraction, expressed as a percentage, the numerator of which is equal
to the aggregate Class Certificate Balance of
9
the Subordinated Certificates immediately prior to such Distribution Date and
the denominator of which is the aggregate Stated Principal Balance of all the
Mortgage Loans as of the Due Date in the month preceding the month of such
Distribution Date (after giving effect to Principal Prepayments received in
the Prepayment Period related to that prior Due Date).
Agreement: This Pooling and Servicing Agreement and all amendments
and supplements.
Allocable Share: As to any Distribution Date and Class of
Certificates, the ratio that the amount calculated with respect to such
Distribution Date (A) with respect to the Senior Certificates of the related
Senior Certificate Group, pursuant to clause (i) of the definition of Class
Optimal Interest Distribution Amount (without giving effect to any reduction
of such amount pursuant to Section 4.02 (d)) and (B) with respect to the
Subordinated Certificates, pursuant to the definition of Assumed Interest
Amount or after a Senior Termination Date pursuant to clause (i) of the
definition of Class Optimal Interest Distribution Amount (without giving
effect to any reduction of such amount pursuant to Section 4.02(d)) bears to
the amount calculated with respect to such Distribution Date for each Class of
Certificates pursuant to clause (i) of the definition of Class Optimal
Interest Distribution Amount (without giving effect to any reduction of such
amount pursuant to Section 4.02(d)) or the definition of Assumed Interest
Amount for such Loan Group and Class, as applicable.
Amount Available for Senior Principal: As to any Distribution Date
and Loan Group, the related Available Funds for such Distribution Date,
reduced by the aggregate amount distributable (or allocable to the Accrual
Amount, if applicable) on such Distribution Date in respect of interest on the
related Senior Certificates pursuant to Section 4.02(a)(1)(i) and Section
4.02(a)(2)(i).
Amount Held for Future Distribution: As to any Distribution Date and
the Mortgage Loans in a Loan Group, the aggregate amount held in the
Certificate Account at the close of business on the related Determination Date
on account of (i) Principal Prepayments received after the last day of the
related Prepayment Period and Liquidation Proceeds and Subsequent Recoveries
relating to the Mortgage Loans in such Loan Group received in the month of
such Distribution Date and (ii) all Scheduled Payments relating to the
Mortgage Loans in that Loan Group due after the related Due Date.
Applicable Credit Support Percentage: As defined in Section 4.02(e).
Appraised Value: With respect to any Mortgage Loan, the Appraised
Value of the related Mortgaged Property shall be: (i) with respect to a
Mortgage Loan other than a Refinance Loan, the lesser of (a) the value of the
Mortgaged Property based upon the appraisal made at the time of the
origination of such Mortgage Loan and (b) the sales price of the Mortgaged
Property at the time of the origination of such Mortgage Loan; (ii) with
respect to a Refinance Loan, the value of the Mortgaged Property based upon
the appraisal made at the time of the origination of such Refinance Loan.
Assumed Balance: With respect to any Distribution Date, Class of
Subordinated Certificates and Loan Group, a pro rata amount for each such
Class (based on their respective Class Certificate Balances) in such Loan
Group equal to the product of the Subordinated Percentage for such Loan Group
as of such Distribution Date and the aggregate Stated Principal Balance of
each Mortgage Loan in such Loan Group as of the Due Date occurring in the
month preceding the month of such Distribution Date (after giving effect to
Principal Prepayments received in the Prepayment Period related to such prior
Due Date).
Assumed Interest Amount: With respect to any Distribution Date, any
Class of Subordinated Certificates and any Loan Group, one month's interest
accrued during the related Interest Accrual Period at the Pass-Through Rate on
the related Assumed Balance immediately prior to that Distribution Date.
10
Available Funds: As to any Distribution Date and the Mortgage Loans
in a Loan Group, the sum of (a) the aggregate amount held in the Certificate
Account at the close of business on the related Determination Date, including
any Subsequent Recoveries with respect to the Mortgage Loans in that Loan
Group, net of the Amount Held for Future Distribution, net of Prepayment
Charges and Late Payment Fees and net of amounts permitted to be withdrawn
from the Certificate Account pursuant to clauses (i) - (viii), inclusive, of
Section 3.09(a) and amounts permitted to be withdrawn from the Distribution
Account pursuant to clauses (i) - (iii), inclusive, of Section 3.09(b), (b)
the amount of the related Advance, (c) in connection with Defective Mortgage
Loans in such Loan Group, as applicable, the aggregate of the Purchase Prices
and Substitution Adjustment Amounts deposited on the related Distribution
Account Deposit Date, and (d) any amount deposited on the related Distribution
Account Deposit Date pursuant to Section 3.10. The Holders of the Class P
Certificates will be entitled to all Prepayment Charges received on the
Mortgage Loans and such amounts will not be available for distribution to the
Holders of any other Class of Certificates. The Holders of the Class L
Certificates will be entitled to all Late Payment Fees assessable on the
Mortgage Loans and such amounts will not be available for distribution to the
Holders of any other Class of Certificates.
Bankruptcy Code: The United States Bankruptcy Reform Act of 1978, as
amended.
Bankruptcy Coverage Termination Date: The point in time at which the
Bankruptcy Loss Coverage Amount is reduced to zero.
Bankruptcy Loss: With respect to any Mortgage Loan, a Deficient
Valuation or Debt Service Reduction; provided, however, that a Bankruptcy Loss
shall not be deemed a Bankruptcy Loss under this Agreement so long as the
Servicer has notified the Trustee in writing that the Servicer is diligently
pursuing any remedies that may exist in connection with the related Mortgage
Loan and either (A) the related Mortgage Loan is not in default with regard to
payments due under the Mortgage Loan or (B) delinquent payments of principal
and interest under the related Mortgage Loan and any related escrow payments
in respect of such Mortgage Loan are being advanced on a current basis by the
Servicer, in either case without giving effect to any Debt Service Reduction
or Deficient Valuation..
Bankruptcy Loss Coverage Amount: As of any date of determination, the
Bankruptcy Loss Coverage Amount shall equal the Initial Bankruptcy Loss
Coverage Amount as reduced by (i) the aggregate amount of Bankruptcy Losses
allocated to the Certificates since the Cut-off Date and (ii) any permissible
reductions in the Bankruptcy Loss Coverage Amount as evidenced by a letter of
each Rating Agency to the Trustee to the effect that any such reduction will
not result in a downgrading, qualification or withdrawal of the then current
ratings assigned to the Classes of Certificates rated by it.
Blanket Mortgage: The mortgage or mortgages encumbering a Cooperative
Property.
Book-Entry Certificates: As specified in the Preliminary Statement.
Business Day: Any day other than (i) a Saturday or a Sunday, or (ii)
a day on which banking institutions in the City of New York, New York, the
State of California or the city in which the Corporate Trust Office of the
Trustee is located are authorized or obligated by law or executive order to be
closed.
Calculation Rate: For each Distribution Date, the product of (i) 10
and (ii) the weighted average pass-through rate of the outstanding Class A and
Class B Interests, treating each of the Class A Interests as having an
Interest Rate of 0.00%.
Cap Counterparty: Not applicable.
Certificate: Any one of the certificates issued by the Trust Fund and
executed by the Trustee in substantially the forms attached as exhibits.
11
Certificate Account: The separate Eligible Account or Accounts
created and maintained by the Servicer pursuant to Section 3.06(d) with a
depository institution in the name of the Servicer for the benefit of the
Trustee on behalf of Certificateholders and designated "IndyMac Bank, F.S.B.,
in trust for the registered holders of IndyMac INDX Mortgage Loan Trust
2007-AR11, Mortgage Pass-Through Certificates, Series 2007-AR11."
Certificate Balance: With respect to any Certificate (other than a
Notional Amount Certificate) at any date of determination, the maximum dollar
amount of principal to which the Holder thereof is then entitled under this
Agreement, such amount being equal to the Denomination thereof (A) plus any
increase in the Certificate Balance of such Certificate pursuant to Section
4.02 due to the receipt of Subsequent Recoveries on the Mortgage Loans in a
Loan Group, (B) minus the sum of (i) all distributions of principal previously
made with respect thereto and (ii) all Realized Losses allocated to that
Certificate and, in the case of any Subordinated Certificates, all other
reductions in Certificate Balance previously allocated to that Certificate
pursuant to Section 4.05 and (C) in the case of any Class of Accrual
Certificates, plus the Accrual Amount added to the Class Certificate Balance
of such Class prior to such date. The Notional Amount Certificates and the
Class L Certificates have no Certificate Balances.
Certificate Group: Any of Group 1 and Group 2, as the context
requires.
Certificate Owner: With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of the Book-Entry Certificate. For the
purposes of this Agreement, in order for a Certificate Owner to enforce any of
its rights under this Agreement, it shall first have to provide evidence of
its beneficial ownership interest in a Certificate that is reasonably
satisfactory to the Trustee, the Depositor and/or the Servicer, as applicable.
Certificate Register: The register maintained pursuant to Section
5.02.
Certificate Registrar: Deutsche Bank National Trust Company and its
successors and, if a successor certificate registrar is appointed under this
Agreement, the successor.
Certificateholder or Holder: The person in whose name a Certificate
is registered in the Certificate Register, except that, solely for the purpose
of giving any consent pursuant to this Agreement, any Certificate registered
in the name of the Depositor or any affiliate of the Depositor is not
Outstanding and the Percentage Interest evidenced thereby shall not be taken
into account in determining whether the requisite amount of Percentage
Interests necessary to effect a consent has been obtained, except that if the
Depositor or its affiliates own 100% of the Percentage Interests evidenced by
a Class of Certificates, the Certificates shall be Outstanding for purposes of
any provision of this Agreement requiring the consent of the Holders of
Certificates of a particular Class as a condition to the taking of any action.
The Trustee is entitled to rely conclusively on a certification of the
Depositor or any affiliate of the Depositor in determining which Certificates
are registered in the name of an affiliate of the Depositor.
Certification Party: As defined in Section 11.05.
Certifying Person: As defined in Section 11.05.
Class: All Certificates bearing the same class designation as set
forth in the Preliminary Statement.
Class A Interest: Each of the Class A-1 and Class A-2 Interests.
Class B Interest: Each of the Class B-1 and Class B-2 Interests.
12
Class C Interest: Each of the Class C-1 and Class C-2 Interests.
Class Certificate Balance: For any Class as of any date of
determination, the aggregate of the Certificate Balances of all Certificates
of the Class as of that date.
Class Interest Shortfall: As to any Distribution Date and Class, the
amount by which the amount described in clause (i) of the definition of Class
Optimal Interest Distribution Amount for such Class exceeds the amount of
interest actually distributed on such Class on such Distribution Date pursuant
to such clause (i).
Class Optimal Interest Distribution Amount: With respect to any
Distribution Date and interest-bearing Class or Component, the sum of (i) one
month's interest accrued during the related Interest Accrual Period at the
Pass-Through Rate for such Class on the related Class Certificate Balance or
Component Balance immediately prior to such Distribution Date, subject to
reduction pursuant to Section 4.02(d), and (ii) any Class Unpaid Interest
Amounts for such Class.
Class Subordination Percentage: With respect to any Distribution Date
and each Class of Subordinated Certificates, the fraction (expressed as a
percentage) the numerator of which is the Class Certificate Balance of such
Class of Subordinated Certificates immediately prior to such Distribution Date
and the denominator of which is the aggregate Class Certificate Balance of all
Classes of Certificates immediately prior to such Distribution Date.
Class Unpaid Interest Amounts: As to any Distribution Date and Class
of interest-bearing Certificates, the amount by which the aggregate Class
Interest Shortfalls for such Class on prior Distribution Dates exceeds the
amount distributed on such Class on prior Distribution Dates pursuant to
clause (ii) of the definition of Class Optimal Interest Distribution Amount.
Closing Date: April 27, 2007.
Code: The Internal Revenue Code of 1986, including any successor or
amendatory provisions.
COFI: Not applicable.
COFI Certificates: Not applicable.
Commission: The United States Securities and Exchange Commission.
Compensating Interest: For any Distribution Date, 0.125% multiplied
by one-twelfth multiplied by the aggregate Stated Principal Balance of the
Mortgage Loans as of the first day of the prior month.
Component: As specified in the Preliminary Statement.
Component Balance: With respect to any Component and any Distribution
Date, its initial Component Balance (A) plus any increase in that Component
Balance due to the receipt of Subsequent Recoveries, (B) minus the sum of all
amounts applied in reduction of the Component Balance of that Component and
Realized Losses allocated thereto.
Component Certificates: As specified in the Preliminary Statement.
Co-op Shares: Shares issued by a Cooperative Corporation.
13
Cooperative Corporation: The entity that holds title (fee or an
acceptable leasehold estate) to the real property and improvements
constituting the Cooperative Property and that governs the Cooperative
Property, which Cooperative Corporation must qualify as a Cooperative Housing
Corporation under section 216 of the Code.
Cooperative Loan: Any Mortgage Loan secured by Co-op Shares and a
Proprietary Lease.
Cooperative Property: The real property and improvements owned by the
Cooperative Corporation, including the allocation of individual dwelling units
to the holders of the Co-op Shares of the Cooperative Corporation.
Cooperative Unit: A single family dwelling located in a Cooperative
Property.
Corporate Trust Office: The designated office of the Trustee in the
State of California at which at any particular time its corporate trust
business with respect to this Agreement is administered, which office at the
date of the execution of this Agreement is located at ▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: Trust Administration- IN07AB
(IndyMac MBS, Inc., IndyMac INDX Mortgage Loan Trust 2007-AR11, Mortgage
Pass-Through Certificates, Series 2007-AR11), and which is the address to
which notices to and correspondence with the Trustee should be directed. The
office of the Certificate Registrar for purposes of presentment of
certificates for registration of transfer, exchange or final payment is
located at DB Services Tennessee, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Transfer Unit.
Cross-over Situation: For any Distribution Date and for any Loan
Group (after taking into account principal distributions on such Distribution
Date) a Cross-Over Situation exists with respect to the Class A and Class B
Interests of the Loan Group if such Interests in the aggregate are less than
1% of the Assumed Balance of the related Loan Group.
Cut-off Date: April 1, 2007.
Cut-off Date Pool Principal Balance: $278,186,858.90.
Cut-off Date Principal Balance: As to any Mortgage Loan, its Stated
Principal Balance as of the close of business on the Cut-off Date.
Debt Service Reduction: For any Mortgage Loan, a reduction by a court
of competent jurisdiction in a proceeding under the Bankruptcy Code in the
Scheduled Payment for the Mortgage Loan that became final and non-appealable,
except a reduction resulting from a Deficient Valuation or a reduction that
results in a permanent forgiveness of principal.
Defective Mortgage Loan: Any Mortgage Loan that is required to be
repurchased pursuant to Section 2.02 or 2.03.
Deficient Valuation: For any Mortgage Loan, a valuation by a court of
competent jurisdiction of the Mortgaged Property in an amount less than the
then outstanding indebtedness under the Mortgage Loan, or any reduction in the
amount of principal to be paid in connection with any Scheduled Payment that
results in a permanent forgiveness of principal, which valuation or reduction
results from an order of the court that is final and non-appealable in a
proceeding under the Bankruptcy Code.
Definitive Certificates: Any Certificate evidenced by a Physical
Certificate and any Certificate issued in lieu of a Book-Entry Certificate
pursuant to Section 5.02(e).
14
Delay Certificates: As specified in the Preliminary Statement.
Delay Delivery Certification: A certification substantially in the
form of Exhibit G-2.
Delay Delivery Mortgage Loans: The Mortgage Loans identified on the
Mortgage Loan Schedule for which none of a related Mortgage File, or neither
the Mortgage Note, nor a lost note affidavit for a lost Mortgage Note, has
been delivered to the Trustee by the Closing Date. The Depositor shall deliver
the Mortgage Files to the Trustee:
(A) for at least 70% of the Mortgage Loans in each Loan Group, not
later than the Closing Date, and
(B) for the remaining 30% of the Mortgage Loans in each Loan Group,
not later than five Business Days following the Closing Date.
To the extent that the Seller is in possession of any Mortgage File
for any Delay Delivery Mortgage Loan, until delivery of the Mortgage File to
the Trustee as provided in Section 2.01, the Seller shall hold the files as
Servicer, as agent and in trust for the Trustee.
Deleted Mortgage Loan: As defined in Section 2.03(c).
Delinquent: [ A Mortgage Loan is "Delinquent" if any monthly payment
due on a Due Date is not made by the close of business on the next scheduled
Due Date for such Mortgage Loan. A Mortgage Loan is "30 days Delinquent" if
such monthly payment has not been received by the close of business on the
corresponding day of the month immediately succeeding the month in which such
monthly payment was due.] The determination of whether a Mortgage Loan is "60
days Delinquent", "90 days Delinquent", etc. shall be made in a like manner.
Denomination: For each Certificate, the amount on the face of the
Certificate as the "Initial Certificate Balance of this Certificate" or the
"Initial Notional Amount of this Certificate" or, if neither of the foregoing,
the Percentage Interest appearing on the face of the Certificate.
Depositor: IndyMac MBS, Inc., a Delaware corporation, or its
successor in interest.
Depository: The initial Depository shall be The Depository Trust
Company, the nominee of which is CEDE & Co., as the registered Holder of the
Book-Entry Certificates. The Depository shall at all times be a "clearing
corporation" as defined in Section 8-102(a)(5) of the UCC.
Depository Participant: A broker, dealer, bank, or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Determination Date: As to any Distribution Date, the 18th day of each
month or if that day is not a Business Day the next Business Day, except that
if the next Business Day is less than two Business Days before the related
Distribution Date, then the Determination Date shall be the Business Day
preceding the 18th day of the month.
Distribution Account: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 3.06(e) in the name of the
Trustee for the benefit of the Certificateholders and designated "Deutsche
Bank National Trust Company in trust for registered holders of IndyMac INDX
Mortgage Loan Trust 2007-AR11, Mortgage Pass-Through Certificates, Series
2007-AR11." Funds in the
15
Distribution Account shall be held in trust for the Certificateholders for the
uses and purposes set forth in this Agreement.
Distribution Account Deposit Date: As to any Distribution Date, 12:30
P.M. Pacific time on the Business Day preceding the Distribution Date.
Distribution Date: The 25th day of each calendar month, or if that
day is not a Business Day, the next Business Day, commencing in May 2007.
Due Date: For any Mortgage Loan and Distribution Date, the first day
of the month in which such Distribution Date occurs.
Due Period: For any Distribution Date, the period commencing on the
second day of the month preceding the month in which the Distribution Date
occurs and ending on the first day of the month in which the Distribution Date
occurs.
▇▇▇▇▇: The Commission's Electronic Data Gathering, Analysis and
Retrieval system.
Eligible Account: Any of
(i) an account or accounts maintained with a federal or state
chartered depository institution or trust company the short-term unsecured
debt obligations of which (or, in the case of a depository institution or
trust company that is the principal subsidiary of a holding company, the debt
obligations of either such holding company or the depository institution or
trust company, whichever are rated higher) have (x) if ▇▇▇▇▇'▇ is a Rating
Agency at the time amounts are held on deposit therein, the highest short-term
ratings of Moody's (which shall be Prime-1), (y) if Fitch is a Rating Agency
at the time any amounts are held on deposit therein, the highest short-term
rating of Fitch (which shall be F1 for funds held for less than 30 days, and
F1+ for funds held for longer than 30 days and less than 365 days) and (z) if
S&P is a Rating Agency at the time any amounts are held on deposit therein, a
short-term rating of at least A-2, for funds held no longer than 30 days, and,
if funds will be held longer than 30 days and less than 365 days, a short-term
rating of at least A-1+, or
(ii) an account or accounts in a depository institution or trust
company in which such accounts are insured by the FDIC (to the limits
established by the FDIC) and the uninsured deposits in which accounts are
otherwise secured such that, as evidenced by an Opinion of Counsel delivered
to the Trustee and to each Rating Agency, the Certificateholders have a claim
with respect to the funds in such account or a perfected first priority
security interest against any collateral (which shall be limited to Permitted
Investments) securing such funds that is superior to claims of any other
depositors or creditors of the depository institution or trust company in
which such account is maintained, or
(iii) a trust account or accounts maintained with (a) the trust
department of a federal or state chartered depository institution or (b) a
trust company, acting in its fiduciary capacity, or
(iv) any other account acceptable to each Rating Agency.
Eligible Accounts may bear interest, and may include, if otherwise qualified
under this definition, accounts maintained with the Trustee.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
16
ERISA-Qualifying Underwriting: A best efforts or firm commitment
underwriting or private placement that meets the requirements of the
Underwriter's Exemption.
ERISA-Restricted Certificate: As specified in the Preliminary
Statement.
Escrow Account: The Eligible Account or Accounts established and
maintained pursuant to Section 3.07(a).
Event of Default: As defined in Section 7.01.
Excess Loss: The amount of any (i) Fraud Loss on the Mortgage Loans
realized after the Fraud Loss Coverage Termination Date, (ii) Special Hazard
Loss on the Mortgage Loans realized after the Special Hazard Coverage
Termination Date or (iii) Bankruptcy Loss on the Mortgage Loans realized after
the Bankruptcy Coverage Termination Date.
Excess Proceeds: For any Liquidated Mortgage Loan, the excess of
(a) all Liquidation Proceeds from the Mortgage Loan received in the
calendar month in which the Mortgage Loan became a Liquidated Mortgage Loan,
net of any amounts previously reimbursed to the Servicer as Nonrecoverable
Advances with respect to the Mortgage Loan pursuant to Section 3.09(a)(iii),
over
(b) the sum of (i) the unpaid principal balance of the Liquidated
Mortgage Loan as of the Due Date in the month in which the Mortgage Loan
became a Liquidated Mortgage Loan plus (ii) accrued interest at the Mortgage
Rate from the Due Date for which interest was last paid or advanced (and not
reimbursed) to Certificateholders up to the Due Date applicable to the
Distribution Date following the calendar month during which the liquidation
occurred.
Exchange Act: The Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
Exchange Act Reports: Any reports on Form 10-D, Form 8-K and Form
10-K required to be filed by the Depositor with respect to the Trust Fund
under the Exchange Act.
Expense Fee Rate: As to each Mortgage Loan, the sum of (a) the
Servicing Fee Rate and (b) the Trustee Fee Rate.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of
the Emergency Home Finance Act of 1970, as amended, or any successor thereto.
Fitch: Fitch, Inc., or any successor thereto. If Fitch is designated
as a Rating Agency in the Preliminary Statement, for purposes of Section
10.05(b) the address for notices to Fitch shall be Fitch, Inc., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: MBS Monitoring - IndyMac INDX
2007-AR11, or any other address Fitch furnishes to the Depositor and the
Servicer.
FNMA: The Federal National Mortgage Association, a federally
chartered and privately owned corporation organized and existing under the
Federal National Mortgage Association Charter Act, or any successor thereto.
17
Form 10-D Disclosure Item: With respect to any Person, any material
litigation or governmental proceedings pending against such Person, or against
any of the Trust Fund, the Depositor, the Trustee or the Servicer, if such
Person has actual knowledge thereof.
Form 10-K Disclosure Item: With respect to any Person, (a) Form 10-D
Disclosure Item, and (b) any affiliations or relationships between such Person
and any Item 1119 Party.
Fraud Loan: A Liquidated Mortgage Loan as to which a Fraud Loss has
occurred.
Fraud Loss Coverage Amount: As of the Closing Date, $8,345,605,
subject to reduction from time to time, by the amount of Fraud Losses
allocated to the Certificates. In addition, on each anniversary of the Cut-off
Date, the Fraud Loss Coverage Amount will be reduced as follows: (a) on the
first, second, third and fourth anniversaries of the Cut-off Date, to an
amount equal to the lesser of (i) 2.00% of the then current Stated Principal
Balance of the Mortgage Loans in the case of the first anniversary and 1.00%
of the then-current Stated Principal Balance of the Mortgage Loans in the case
of the second, third and fourth such anniversaries and (ii) the excess of the
Fraud Loss Coverage Amount as of the preceding anniversary of the Cut-off Date
over the cumulative amount of Fraud Losses allocated to the Certificates since
such preceding anniversary; and (b) on the fifth anniversary of the Cut-off
Date, to zero.
Fraud Loss Coverage Termination Date: The point in time at which the
Fraud Loss Coverage Amount is reduced to zero.
Fraud Losses: Realized Losses on Mortgage Loans as to which a loss is
sustained by reason of a default arising from fraud, dishonesty or
misrepresentation in connection with the related Mortgage Loan, including a
loss by reason of the denial of coverage under any related Primary Insurance
Policy because of such fraud, dishonesty or misrepresentation.
Grantor Trust: As specified in the Preliminary Statement.
Gross Margin: With respect to each Mortgage Loan, the fixed
percentage set forth in the related Mortgage Note that is added to the
Mortgage Index on each Adjustment Date in accordance with the terms of the
related Mortgage Note used to determine the Mortgage Rate for such Mortgage
Loan.
Group 1 Certificates: As specified in the Preliminary Statement.
Group 1 Mortgage Loan: Any Mortgage Loan in Loan Group 1.
Group 1 Senior Certificates: As specified in the Preliminary
Statement.
Group 2 Certificates: As specified in the Preliminary Statement.
Group 2 Mortgage Loan: Any Mortgage Loan in Loan Group 2.
Group 2 Senior Certificates: As specified in the Preliminary
Statement.
Hard Prepayment Charges: As to a Mortgage Loan, any charge payable by
a Mortgagor in connection with certain partial Principal Prepayments and all
Principal Prepayments in Full made within the related Prepayment Charge
Period, the Hard Prepayment Charges with respect to each applicable Mortgage
Loan so held by the Trust Fund being identified in the Mortgage Loan Schedule.
Hedged Certificates: Not applicable.
Index: Not applicable.
18
Indirect Participant: A broker, dealer, bank, or other financial
institution or other Person that clears through or maintains a custodial
relationship with a Depository Participant.
Initial Bankruptcy Loss Coverage Amount: $150,000.
Initial LIBOR Rate: Not applicable.
Insurance Policy: For any Mortgage Loan included in the Trust Fund,
any insurance policy, including all riders and endorsements thereto in effect,
including any replacement policy or policies for any Insurance Policies.
Insurance Proceeds: Proceeds paid by an insurer pursuant to any
Insurance Policy, in each case other than any amount included in such
Insurance Proceeds in respect of Insured Expenses.
Insured Expenses: Expenses covered by an Insurance Policy or any
other insurance policy with respect to the Mortgage Loans.
Interest Accrual Period: With respect to each Class of Delay
Certificates and any Distribution Date, the calendar month prior to the month
of such Distribution Date. With respect to each Class of Non-Delay
Certificates and any Distribution Date, the one-month period commencing on the
25th day of the month preceding the month in which such Distribution Date
occurs and ending on the 24th day of the month in which such Distribution Date
occurs. All Classes of Certificates will accrue interest on the basis of a
360-day year consisting of twelve 30-day months.
Interest Determination Date: With respect to (a) any Interest Accrual
Period for any LIBOR Certificates and (b) any Interest Accrual Period for the
COFI Certificates for which the applicable Index is LIBOR, the second Business
Day prior to the first day of such Interest Accrual Period.
Interest Rate: With respect to each REMIC 1 Interest, the applicable
rate set forth or calculated in the manner described in the Preliminary
Statement.
Interest Settlement Rate: As defined in Section 4.08.
Item 1119 Party: The Depositor, the Seller, the Servicer, the Trustee
and any other material transaction party, as identified in Exhibit T hereto,
as updated pursuant to Section 11.04.
Late Payment Fee: As to a Mortgage Loan, any fees assessable by the
related mortgagee in connection with the late payment of a Scheduled Payment
due after the Cut-off Date.
Latest Possible Maturity Date: The Distribution Date, determined as
of the Closing Date, following the third anniversary of the later of: (i) the
scheduled maturity date of the Mortgage Loan having the latest scheduled
maturity date as of the Cut-off Date, and (ii) the latest possible maturity of
any Substitute Mortgage Loan that may be substituted for any Mortgage Loan
pursuant to this Agreement.
Lender PMI Loans: Mortgage Loans with respect to which the lender
rather than the borrower acquired the primary mortgage guaranty insurance and
charged the related borrower an interest premium.
LIBOR: The London interbank offered rate for one month United States
dollar deposits calculated in the manner described in Section 4.08.
19
LIBOR Determination Date: For any Interest Accrual Period, the second
London Business Day prior to the commencement of such Interest Accrual Period.
Limited Exchange Act Reporting Obligations: The obligations of the
Servicer under Section 3.17(b), Section 6.02 and Section 6.04 with respect to
notice and information to be provided to the Depositor and Article 11 (except
Section 11.07(a)(i) and (ii)).
Liquidated Mortgage Loan: For any Distribution Date, a defaulted
Mortgage Loan (including any REO Property) that was liquidated in the calendar
month preceding the month of the Distribution Date and as to which the
Servicer has certified (in accordance with this Agreement) that it has
received all amounts it expects to receive in connection with the liquidation
of the Mortgage Loan, including the final disposition of an REO Property.
Liquidation Proceeds: Amounts, including Insurance Proceeds
regardless of when received, received in connection with the partial or
complete liquidation of defaulted Mortgage Loans, whether through trustee's
sale, foreclosure sale, or otherwise or amounts received in connection with
any condemnation or partial release of a Mortgaged Property, and any other
proceeds received in connection with an REO Property, less the sum of related
unreimbursed Servicing Fees, Servicing Advances, and Advances.
Loan Group: Either Loan Group 1 or Loan Group 2, as applicable.
Loan Group 1: All Mortgage Loans identified as Group 1 Mortgage Loans
on the Mortgage Loan Schedule.
Loan Group 2: All Mortgage Loans identified as Group 2 Mortgage Loans
on the Mortgage Loan Schedule.
Loan-to-Value Ratio: For any Mortgage Loan and as of any date of
determination, is the fraction whose numerator is the original principal
balance of the related Mortgage Loan at that date of determination and whose
denominator is the Appraised Value of the related Mortgaged Property.
London Business Day: Any day on which dealings in deposits of United
States dollars are transacted in the London interbank market.
Lost Mortgage Note: Any Mortgage Note the original of which was
permanently lost or destroyed and has not been replaced.
Maintenance: For any Cooperative Unit, the rent paid by the Mortgagor
to the Cooperative Corporation pursuant to the Proprietary Lease.
Maximum Mortgage Rate: For each Mortgage Loan, the percentage set
forth in the related Mortgage Note as the lifetime maximum Mortgage Rate to
which such Mortgage Rate may be adjusted.
MERS: Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or any
successor thereto.
MERS Mortgage Loan: Any Mortgage Loan registered with MERS on the
MERS(R) System.
MERS(R) System: The system of recording transfers of mortgages
electronically maintained by MERS.
20
MIN: The mortgage identification number for any MERS Mortgage Loan.
Minimum Mortgage Rate: For each Mortgage Loan, the percentage set
forth in the related Mortgage Note as the lifetime minimum Mortgage Rate to
which such Mortgage Rate may be adjusted.
MOM Loan: Any Mortgage Loan as to which MERS is acting as mortgagee,
solely as nominee for the originator of such Mortgage Loan and its successors
and assigns.
Monthly Statement: The statement delivered to the Certificateholders
pursuant to Section 4.06.
Moody's: ▇▇▇▇▇'▇ Investors Service, Inc., or any successor thereto.
If ▇▇▇▇▇'▇ is designated as a Rating Agency in the Preliminary Statement, for
purposes of Section 10.05(b) the address for notices to Moody's shall be
▇▇▇▇▇'▇ Investors Service, Inc., ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Residential Loan Monitoring Group, or any other address that
Moody's furnishes to the Depositor and the Servicer.
Mortgage: The mortgage, deed of trust, or other instrument creating a
first lien on an estate in fee simple or leasehold interest in real property
securing a Mortgage Note.
Mortgage File: The mortgage documents listed in Section 2.01
pertaining to a particular Mortgage Loan and any additional documents
delivered to the Trustee to be added to the Mortgage File pursuant to this
Agreement.
Mortgage Index: Six-Month LIBOR Index or One-Year LIBOR Index.
Mortgage Loans: Such of the mortgage loans transferred and assigned
to the Trustee pursuant to this Agreement, as from time to time are held as a
part of the Trust Fund (including any REO Property), the Mortgage Loans so
held being identified on the Mortgage Loan Schedule, notwithstanding
foreclosure or other acquisition of title of the related Mortgaged Property.
Mortgage Loan Schedule: As of any date, the list set forth in
Schedule I of Mortgage Loans included in the Trust Fund on that date. The
Mortgage Loan Schedule shall be prepared by the Seller and shall set forth the
following information with respect to each Mortgage Loan by Loan Group:
(i) the loan number;
(ii) the street address of the Mortgaged Property,
including the zip code;
(iii) the maturity date;
(iv) the original principal balance;
(v) the Cut-off Date Principal Balance;
(vi) the first payment date of the Mortgage Loan;
(vii) the Scheduled Payment in effect as of the Cut-off
Date;
(viii) the Gross Margin in effect as of the Cut-off Date;
(ix) the Maximum Mortgage Rate in effect as of the
Cut-off Date;
21
(x) the Adjustment Date in effect as of the Cut-off
Date;
(xi) a code indicating the Mortgage Index and when it is
determined;
(xii) the Loan-to-Value Ratio at origination;
(xiii) a code indicating whether the residential dwelling
at the time of origination was represented to be
owner-occupied;
(xiv) a code indicating whether the residential dwelling
is either (a) a detached single family dwelling,
(b) a dwelling in a PUD, (c) a condominium unit,
(d) a two- to four-unit residential property, or
(e) a Cooperative Unit;
(xv) the Mortgage Rate in effect as of the Cut-off Date;
(xvi) the purpose for the Mortgage Loan;
(xvii) the type of documentation program pursuant to which
the Mortgage Loan was originated;
(xviii) a code indicating whether the Mortgage Loan is a
borrower-paid mortgage insurance loan;
(xix) the Servicing Fee Rate;
(xx) a code indicating whether the Mortgage Loan is a
Lender PMI Loan;
(xxi) the coverage amount of any mortgage insurance;
(xxii) with respect to the Lender PMI Loans, the interest
premium charged by the lender;
(xxiii) a code indicating whether the Mortgage Loan is a
Delay Delivery Mortgage Loan;
(xxiv) the Minimum Mortgage Rate in effect as of the
Cut-off Date; and
(xxv) a code indicating whether the Mortgage Loan is a
MERS Mortgage Loan.
The schedule shall also set forth the total of the amounts described under (v)
above for all of the Mortgage Loans and for each Loan Group.
Mortgage Note: The original executed note or other evidence of the
indebtedness of a Mortgagor under a Mortgage Loan.
Mortgage Rate: The annual rate of interest borne by a Mortgage Note
from time to time (net of the interest premium for any Lender PMI Loan).
Mortgaged Property: The underlying property securing a Mortgage Loan,
which, with respect to a Cooperative Loan, is the related Co-op Shares and
Proprietary Lease.
Mortgagor: The obligors on a Mortgage Note.
22
National Cost of Funds Index: The National Monthly Median Cost of
Funds Ratio to SAIF-Insured Institutions published by the OTS.
Net Prepayment Interest Shortfall: As to any Distribution Date and
Loan Group, the amount by which the aggregate of the Prepayment Interest
Shortfalls for such Loan Group and such Distribution Date exceeds an amount
equal to the sum of (a) the Compensating Interest allocable to such Loan Group
for such Distribution Date and (b) the excess, if any, of the Compensating
Interest allocable to the other Loan Groups for such Distribution Date over
the Prepayment Interest Shortfalls for such other Loan Groups and Distribution
Date.
Non-Delay Certificates: As specified in the Preliminary Statement.
Nonrecoverable Advance: Any portion of an Advance previously made or
proposed to be made by the Servicer, that, in the good faith judgment of the
Servicer, will not be ultimately recoverable by the Servicer from the related
Mortgagor, related Liquidation Proceeds or otherwise.
Notice of Final Distribution: The notice to be provided pursuant to
Section 9.02 to the effect that final distribution on any of the Certificates
shall be made only upon presentation and surrender thereof.
Notional Amount: With respect to the Class 1-X Certificates for the
Interest Accrual Period for any Distribution Date the Class Certificate
Balance of the Class 1-A-1 Certificates immediately prior to that Distribution
Date. With respect to the Class 2-X Certificates for the Interest Accrual
Period for any Distribution Date the Class Certificate Balance of the Class
2-A-1 Certificates immediately prior to that Distribution Date.
Notional Amount Certificates: As specified in the Preliminary
Statement.
Notional Amount Components: As specified in the Preliminary
Statement.
Offered Certificates: As specified in the Preliminary Statement.
Officer's Certificate: A certificate (i) signed by the Chairman of
the Board, the Vice Chairman of the Board, the President, a Managing Director,
a Vice President (however denominated), an Assistant Vice President, the
Treasurer, the Secretary, or one of the Assistant Treasurers or Assistant
Secretaries of the Depositor or the Servicer, or (ii) if provided for in this
Agreement, signed by a Servicing Officer, as the case may be, and delivered to
the Depositor and the Trustee as required by this Agreement or (iii) in the
case of any other Person, signed by an authorized officer of such Person.
One-Year CMT Index: The weekly average yield on United States
Treasury securities adjusted to a constant maturity of one year as published
by the Federal Reserve Board in Statistical Release H.15 and most recently
available as of a day specified in the related Mortgage Note.
One-Year LIBOR Index: The average of the London interbank offered
rates for one-year U.S. dollar deposits in the London market, generally as set
forth in either The Wall Street Journal or some other source generally
accepted in the residential mortgage loan origination business and specified
in the related Mortgage Note, or, if such rate ceases to be published in The
Wall Street Journal or becomes unavailable for any reason, then based upon a
new index selected by the servicer, based on comparable information, in each
case, as most recently announced as of either 45 days prior to, or the first
Business Day of the month immediately preceding the month of, such Adjustment
Date.
23
Opinion of Counsel: For the interpretation or application of the
REMIC Provisions, a written opinion of counsel who (i) is in fact independent
of the Depositor and the Servicer, (ii) does not have any direct financial
interest in the Depositor or the Servicer or in any affiliate of either, and
(iii) is not connected with the Depositor or the Servicer as an officer,
employee, promoter, underwriter, trustee, partner, director, or person
performing similar functions. Otherwise, a written opinion of counsel who may
be counsel for the Depositor or the Servicer, including in-house counsel,
reasonably acceptable to the Trustee.
Optional Termination Date: As defined in Section 9.01.
Original Applicable Credit Support Percentage: With respect to each
of the following Classes of Subordinated Certificates, the corresponding
percentage described below:
Class B-1.................................... 8.35%
Class B-2.................................... 5.80%
Class B-3.................................... 3.85%
Class B-4.................................... 2.50%
Class B-5.................................... 1.40%
Class B-6.................................... 0.55%
Original Mortgage Loan: The Mortgage Loan refinanced in connection
with the origination of a Refinance Loan.
Original Subordinated Principal Balance: On or prior to a Senior
Termination Date, the Subordinated Percentage of the aggregate Stated
Principal Balance of the Mortgage Loans in the related Loan Group, in each
case as of the Cut-off Date; or if such date is after a Senior Termination
Date, the aggregate Class Certificate Balance of the Subordinated Certificates
as of the Closing Date.
OTS: The Office of Thrift Supervision.
Outside Reference Date: Not applicable.
Outstanding: For the Certificates as of any date of determination,
all Certificates theretofore executed and authenticated under this Agreement
except:
(i) Certificates theretofore canceled by the Trustee or
delivered to the Trustee for cancellation; and
(ii) Certificates in exchange for which or in lieu of
which other Certificates have been executed and
delivered by the Trustee pursuant to this
Agreement.
Outstanding Mortgage Loan: As of any Due Date, a Mortgage Loan with a
Stated Principal Balance greater than zero that was not the subject of a
Principal Prepayment in Full before the Due Date or during the related
Prepayment Period and that did not become a Liquidated Mortgage Loan before
the Due Date.
Overcollateralized Group: As defined in Section 4.03.
24
Ownership Interest: As to any Residual Certificate, any ownership
interest in the Certificate including any interest in the Certificate as its
Holder and any other interest therein, whether direct or indirect, legal or
beneficial.
Pass-Through Rate: For each Class of Certificates, the per annum rate
set forth or calculated in the manner described in the Preliminary Statement.
Percentage Interest: As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made on the related Class,
the percentage interest being set forth on its face or equal to the percentage
obtained by dividing the Denomination of the Certificate by the aggregate of
the Denominations of all Certificates of the same Class.
Performance Certification: As defined in Section 11.05.
Permitted Investments: At any time, any of the following:
(i) obligations of the United States or any agency thereof backed by
the full faith and credit of the United States;
(ii) general obligations of or obligations guaranteed by any state of
the United States or the District of Columbia receiving the highest long-term
debt rating of each Rating Agency, or any lower rating that will not result in
the downgrading, qualification or withdrawal of the ratings then assigned to
the Certificates by the Rating Agencies, as evidenced by a signed writing
delivered by each Rating Agency;
(iii) commercial or finance company paper that is then receiving the
highest commercial or finance company paper rating of each Rating Agency, or
any lower rating that will not result in the downgrading, qualification or
withdrawal of the ratings then assigned to the Certificates by the Rating
Agencies , as evidenced by a signed writing delivered by each Rating Agency;
(iv) certificates of deposit, demand or time deposits, or bankers'
acceptances issued by any depository institution or trust company incorporated
under the laws of the United States or of any state thereof and subject to
supervision and examination by federal or state banking authorities, provided
that the commercial paper or long-term unsecured debt obligations of the
depository institution or trust company (or in the case of the principal
depository institution in a holding company system, the commercial paper or
long-term unsecured debt obligations of the holding company, but only if
▇▇▇▇▇'▇ is not a Rating Agency) are then rated one of the two highest
long-term and the highest short-term ratings of each Rating Agency for the
securities, or any lower rating that will not result in the downgrading,
qualification or withdrawal of the ratings then assigned to the Certificates
by the Rating Agencies, as evidenced by a signed writing delivered by each
Rating Agency;
(v) demand or time deposits or certificates of deposit issued by any
bank or trust company or savings institution to the extent that the deposits
are fully insured by the FDIC;
(vi) guaranteed reinvestment agreements issued by any bank, insurance
company, or other corporation acceptable to the Rating Agencies at the time of
the issuance of the agreements, as evidenced by a signed writing delivered by
each Rating Agency;
(vii) repurchase obligations with respect to any security described
in clauses (i) and (ii) above, in either case entered into with a depository
institution or trust company (acting as principal) described in
25
clause (iv) above; provided that such repurchase obligation would be accounted
for as a financing arrangement under generally accepted accounting principles;
(viii) securities (other than stripped bonds, stripped coupons, or
instruments sold at a purchase price in excess of 115% of their face amount)
bearing interest or sold at a discount issued by any corporation incorporated
under the laws of the United States or any state thereof that, at the time of
the investment, have one of the two highest ratings of each Rating Agency
(except if the Rating Agency is Moody's the rating shall be the highest
commercial paper rating of Moody's for the securities), or any lower rating
that will not result in the downgrading, qualification or withdrawal of the
ratings then assigned to the Certificates by the Rating Agencies, as evidenced
by a signed writing delivered by each Rating Agency and that have a maturity
date occurring no more than 365 days from their date of issuance;
(ix) units of a taxable money-market portfolio having the highest
rating assigned by each Rating Agency (except (i) if Fitch is a Rating Agency
and has not rated the portfolio, the highest rating assigned by Moody's and
(ii) if S&P is a Rating Agency, "AAAm" or "AAAM-G" by S&P) and restricted to
obligations issued or guaranteed by the United States of America or entities
whose obligations are backed by the full faith and credit of the United States
of America and repurchase agreements collateralized by such obligations; and
(x) any other investments bearing interest or sold at a discount
acceptable to each Rating Agency that will not result in the downgrading,
qualification or withdrawal of the ratings then assigned to the Certificates
by the Rating Agencies, as evidenced by a signed writing delivered by each
Rating Agency.
No Permitted Investment may (i) evidence the right to receive
interest only payments with respect to the obligations underlying the
instrument, (ii) be sold or disposed of before its maturity or (iii) be any
obligation of the Seller or any of its Affiliates. Any Permitted Investment
shall be relatively risk free and no options or voting rights shall be
exercised with respect to any Permitted Investment. Any Permitted Investment
shall be sold or disposed of in accordance with Financial Accounting Standard
140, paragraph 35c(6) in effect as of the Closing Date.
Permitted Transferee: Any person other than
(i) the United States, any State or political subdivision thereof, or
any agency or instrumentality of any of the foregoing,
(ii) a foreign government, International Organization, or any agency
or instrumentality of either of the foregoing,
(iii) an organization (except certain farmers' cooperatives described
in section 521 of the Code) that is exempt from tax imposed by Chapter 1 of
the Code (including the tax imposed by section 511 of the Code on unrelated
business taxable income) on any excess inclusions (as defined in section
860E(c)(1) of the Code) with respect to any Residual Certificate,
(iv) a rural electric and telephone cooperatives described in section
1381(a)(2)(C) of the Code,
(v) an "electing large partnership" as defined in section 775 of the
Code,
(vi) a Person that is not a U.S. Person, and
26
(vii) any other Person so designated by the Depositor based on an
Opinion of Counsel that the Transfer of an Ownership Interest in a Residual
Certificate to the Person may cause any REMIC to fail to qualify as a REMIC at
any time that the Certificates are outstanding.
Person: Any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust,
unincorporated organization, or government, or any agency or political
subdivision thereof.
Physical Certificates: As specified in the Preliminary Statement.
Planned Balance: Not applicable.
Planned Principal Classes: As specified in the Preliminary Statement.
Pool Stated Principal Balance: The aggregate Stated Principal Balance
of the Mortgage Loans.
Prepayment Charge: As to a Mortgage Loan, either a Hard Prepayment
Charge or a Soft Prepayment Charge, as identified on the Mortgage Loan
Schedule.
Prepayment Charge Period: As to any Mortgage Loan, the period of time
during which a Prepayment Charge may be imposed.
Prepayment Interest Excess: As to any Principal Prepayment received
by the Servicer on a Mortgage Loan from the first day through the fifteenth
day of any calendar month other than the month of the Cut-off Date, all
amounts paid by the related Mortgagor in respect of interest on such Principal
Prepayment. All Prepayment Interest Excess shall be retained by the Servicer
as additional servicing compensation.
Prepayment Interest Shortfall: As to any Distribution Date, Mortgage
Loan and Principal Prepayment received on or after the sixteenth day of the
month preceding the month of such Distribution Date (or, in the case of the
first Distribution Date, on or after the Cut-off Date) and on or before the
last day of the month preceding the month of such Distribution Date, the
amount, if any, by which one month's interest at the related Mortgage Rate,
net of the Servicing Fee Rate, on such Principal Prepayment exceeds the amount
of interest paid in connection with such Principal Prepayment.
Prepayment Period: As to any Distribution Date and related Due Date,
the period from and including the 16th day of the month immediately prior to
the month of such Distribution Date (or, in the case of the first Distribution
Date, from the Cut-off Date) and to and including the 15th day of the month of
such Distribution Date.
Prepayment Shift Percentage: Not applicable.
Primary Insurance Policy: Each policy of primary mortgage guaranty
insurance or any replacement policy therefor with respect to any Mortgage
Loan.
Principal Amount: As to any Distribution Date and each Loan Group,
the sum of (a) all monthly payments of principal due on each Mortgage Loan in
that Loan Group on the related Due Date, (b) the principal portion of the
Purchase Price of each Mortgage Loan in that Loan Group that was repurchased
by the Seller pursuant to this Agreement as of such Distribution Date,
excluding any Mortgage Loan that was purchased by the Servicer as provided in
Section 3.12, (c) the Substitution Adjustment Amount in connection with any
Deleted Mortgage Loan in that Loan Group received with respect to such
27
Distribution Date, (d) any Insurance Proceeds or Liquidation Proceeds
allocable to recoveries of principal of Mortgage Loans in that Loan Group that
are not yet Liquidated Mortgage Loans received during the calendar month
preceding the month of such Distribution Date, (e) with respect to each
Mortgage Loan in that Loan Group that became a Liquidated Mortgage Loan during
the calendar month preceding the month of such Distribution Date, the amount
of Liquidation Proceeds allocable to principal received with respect to such
Mortgage Loan, (f) all partial and full Principal Prepayments on the Mortgage
Loans in that Loan Group received during the related Prepayment Period, and
(g) any Subsequent Recoveries with respect to the Mortgage Loans in that Loan
Group received during the calendar month preceding the month of such
Distribution Date.
Principal Only Certificates: As specified in the Preliminary
Statement.
Principal Prepayment: Any payment of principal by a Mortgagor on a
Mortgage Loan (including the principal portion of the Purchase Price of any
Mortgage Loan purchased by the Servicer pursuant to Section 3.12) that is
received in advance of its scheduled Due Date and is not accompanied by an
amount representing scheduled interest due on any date in any month after the
month of prepayment. The Servicer shall apply partial Principal Prepayments in
accordance with the related Mortgage Note.
Principal Prepayment in Full: Any Principal Prepayment made by a
Mortgagor of the entire principal balance of a Mortgage Loan.
Principal Relocation Payment: A payment from any Loan Group to REMIC
1 Interests other than those of their corresponding Loan Group as provided in
the Preliminary Statement. Principal Relocation Payments shall be made of
principal allocations comprising the Principal Amount from a Loan Group.
Private Certificates: As specified in the Preliminary Statement.
Pro Rata Share: As to any Distribution Date and any Class of
Subordinated Certificates, the portion of the Subordinated Principal
Distribution Amount allocable to such Class, equal to the product of the
Subordinated Principal Distribution Amount on such Distribution Date and a
fraction, the numerator of which is the related Class Certificate Balance
thereof and the denominator of which is the aggregate Class Certificate
Balance of the Subordinated Certificates, in each case immediately prior to
such Distribution Date.
Proprietary Lease: For any Cooperative Unit, a lease or occupancy
agreement between a Cooperative Corporation and a holder of related Co-op
Shares.
Prospectus Supplement: The Prospectus Supplement dated April 26,
2007, relating to the Offered Certificates, and any supplement to the
Prospectus Supplement.
PUD: Planned Unit Development.
Purchase Price: For any Mortgage Loan required to be purchased by the
Seller pursuant to Section 2.02 or 2.03 or purchased by the Servicer pursuant
to Section 3.12, the sum of
(i) 100% of the unpaid principal balance of the Mortgage Loan on the
date of the purchase,
(ii) accrued and unpaid interest on the Mortgage Loan at the
applicable Mortgage Rate (or at the applicable Adjusted Mortgage Rate if (x)
the purchaser is the Servicer or (y) if the purchaser is the Seller and the
Seller is the Servicer) from the date through which interest was last paid by
the Mortgagor
28
to the Due Date in the month in which the Purchase Price is to be distributed
to Certificateholders, net of any unreimbursed Advances made by the Servicer
on the Mortgage Loan, and
(iii) any costs and damages incurred by the Trust Fund in connection
with any violation by the Mortgage Loan of any predatory or abusive lending
law.
If the Mortgage Loan is purchased pursuant to Section 3.12, the
interest component of the Purchase Price shall be computed (i) on the basis of
the applicable Adjusted Mortgage Rate before giving effect to the related
modification and (ii) from the date to which interest was last paid to the
date on which the Mortgage Loan is assigned to the Servicer pursuant to
Section 3.12.
Qualified Insurer: A mortgage guaranty insurance company duly
qualified as such under the laws of the state of its principal place of
business and each state having jurisdiction over the insurer in connection
with the insurance policy issued by the insurer, duly authorized and licensed
in such states to transact a mortgage guaranty insurance business in such
states and to write the insurance provided by the insurance policy issued by
it, approved as a FNMA- or FHLMC-approved mortgage insurer or having a claims
paying ability rating of at least "AA" or equivalent rating by a nationally
recognized statistical rating organization. Any replacement insurer with
respect to a Mortgage Loan must have at least as high a claims paying ability
rating as the insurer it replaces had on the Closing Date.
Rating Agency: Each of the Rating Agencies specified in the
Preliminary Statement. If any of them or a successor is no longer in
existence, "Rating Agency" shall be the nationally recognized statistical
rating organization, or other comparable Person, designated by the Depositor
and identified as a "Rating Agency" in the Underwriters' Exemption, notice of
which designation shall be given to the Trustee. References to a given rating
or rating category of a Rating Agency means the rating category without giving
effect to any modifiers.
Realized Loss: With respect to each Liquidated Mortgage Loan, an
amount (not less than zero or more than the Stated Principal Balance of the
Mortgage Loan) as of the date of such liquidation, equal to (i) the Stated
Principal Balance of the Liquidated Mortgage Loan as of the date of such
liquidation, plus (ii) interest at the Adjusted Net Mortgage Rate from the Due
Date as to which interest was last paid or advanced (and not reimbursed) to
Certificateholders up to the Due Date in the month in which Liquidation
Proceeds are required to be distributed on the Stated Principal Balance of
such Liquidated Mortgage Loan from time to time, minus (iii) the Liquidation
Proceeds, if any, received during the month in which such liquidation
occurred, to the extent applied as recoveries of interest at the Adjusted Net
Mortgage Rate and to principal of the Liquidated Mortgage Loan. With respect
to each Mortgage Loan which has become the subject of a Deficient Valuation,
if the principal amount due under the related Mortgage Note has been reduced,
the difference between the principal balance of the Mortgage Loan outstanding
immediately prior to such Deficient Valuation and the principal balance of the
Mortgage Loan as reduced by the Deficient Valuation. With respect to each
Mortgage Loan that has become the subject of a Debt Service Reduction and any
Distribution Date, the amount, if any, by which the principal portion of the
related Scheduled Payment has been reduced.
To the extent the Servicer receives Subsequent Recoveries with
respect to any Mortgage Loan, the amount of the Realized Loss with respect to
that Mortgage Loan will be reduced by such Subsequent Recoveries.
Recognition Agreement: For any Cooperative Loan, an agreement between
the Cooperative Corporation and the originator of the Mortgage Loan that
establishes the rights of the originator in the Cooperative Property.
29
Record Date: With respect to any Distribution Date, the close of
business on the last Business Day of the month preceding the month of that
Distribution Date.
Reference Bank: As defined in Section 4.08.
Refinance Loan: Any Mortgage Loan the proceeds of which are used to
refinance an Original Mortgage Loan.
Regular Certificates: As specified in the Preliminary Statement.
Regulation AB: Subpart 229.1100 - Asset Backed Securities (Regulation
AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from time to
time, and subject to such clarification and interpretation as have been
provided by the Commission in the adopting release (Asset-Backed Securities,
Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005))
or by the staff of the Commission, or as may be provided by the Commission or
its staff from time to time.
Relief Act: The Servicemembers Civil Relief Act.
Relief Act Reductions: With respect to any Distribution Date and any
Mortgage Loan as to which there has been a reduction in the amount of interest
collectible thereon for the most recently ended calendar month as a result of
the application of the Relief Act or any similar state or local laws, the
amount, if any, by which (i) interest collectible on such Mortgage Loan for
the most recently ended calendar month is less than (ii) interest accrued
thereon for such month pursuant to the Mortgage Note.
REMIC: A "real estate mortgage investment conduit" within the meaning
of section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and regulations promulgated thereunder, as the foregoing may be in effect from
time to time as well as provisions of applicable state laws.
REO Property: A Mortgaged Property acquired by the Trust Fund through
foreclosure or deed-in-lieu of foreclosure in connection with a defaulted
Mortgage Loan.
Reportable Event: Any event required to be reported on Form 8-K, and
in any event, the following:
(a) entry into a definitive agreement related to the Trust Fund, the
Certificates or the Mortgage Loans, or an amendment to a Transaction Document,
even if the Depositor is not a party to such agreement (e.g., a servicing
agreement with a servicer contemplated by Item 1108(a)(3) of Regulation AB);
(b) termination of a Transaction Document (other than by expiration
of the agreement on its stated termination date or as a result of all parties
completing their obligations under such agreement), even if the Depositor is
not a party to such agreement (e.g., a servicing agreement with a servicer
contemplated by Item 1108(a)(3) of Regulation AB);
(c) with respect to the Servicer only, if the Servicer becomes aware
of any bankruptcy or receivership with respect to the Seller, the Depositor,
the Servicer, the Trustee, the Cap Counterparty, any
30
enhancement or support provider contemplated by Items 1114(b) or 1115 of
Regulation AB, or any other material party contemplated by Item 1101(d)(1) of
Regulation AB;
(d) with respect to the Trustee, the Servicer and the Depositor only,
the occurrence of an early amortization, performance trigger or other event,
including an Event of Default under this Agreement;
(e) any amendment to this Agreement;
(f) the resignation, removal, replacement, substitution of the
Servicer or the Trustee;
(g) with respect to the Servicer only, if the Servicer becomes aware
that (i) any material enhancement or support specified in Item 1114(a)(1)
through (3) of Regulation AB or Item 1115 of Regulation AB that was previously
applicable regarding one or more Classes of the Certificates has terminated
other than by expiration of the contract on its stated termination date or as
a result of all parties completing their obligations under such agreement;
(ii) any material enhancement specified in Item 1114(a)(1) through (3) of
Regulation AB or Item 1115 of Regulation AB has been added with respect to one
or more Classes of the Certificates; or (iii) any existing material
enhancement or support specified in Item 1114(a)(1) through (3) of Regulation
AB or Item 1115 of Regulation AB with respect to one or more Classes of the
Certificates has been materially amended or modified; and
(h) with respect to the Trustee, the Servicer and the Depositor only,
a required distribution to Holders of the Certificates is not made as of the
required Distribution Date under this Agreement.
Reporting Subcontractor: With respect to the Servicer or the Trustee,
any Subcontractor determined by such Person pursuant to Section 11.08(b) to be
"participating in the servicing function" within the meaning of Item 1122 of
Regulation AB. References to a Reporting Subcontractor shall refer only to the
Subcontractor of such Person and shall not refer to Subcontractors generally.
Request for Release: The Request for Release submitted by the
Servicer to the Trustee, substantially in the form of Exhibits M and N, as
appropriate.
Required Insurance Policy: For any Mortgage Loan, any insurance
policy that is required to be maintained from time to time under this
Agreement.
Residual Certificates: As specified in the Preliminary Statement.
Responsible Officer: When used with respect to the Trustee, any
Managing Director, any Director, Vice President, any Assistant Vice President,
any Associate, any Assistant Secretary, any Trust Officer, or any other
officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers who at such time shall be
officers to whom, with respect to a particular matter, the matter is referred
because of the officer's knowledge of and familiarity with the particular
subject and who has direct responsibility for the administration of this
Agreement.
Restricted Classes: As defined in Section 4.02(e).
Reuters Page LIBOR01: The display page designated as "LIBOR01" page
on Reuters (or any page replacing that page on that service for the purpose of
displaying London inter-bank offered rates of major banks).
SAIF: The Savings Association Insurance Fund, or any successor
thereto.
31
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification: As defined in Section 11.05.
S&P: Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
If S&P is designated as a Rating Agency in the Preliminary Statement, for
purposes of Section 10.05(b) the address for notices to S&P shall be Standard
& Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Mortgage Surveillance Monitoring, or any
other address that S&P furnishes to the Depositor and the Servicer.
Scheduled Balance: Not applicable.
Scheduled Classes: As specified in the Preliminary Statement.
Scheduled Payment: The scheduled monthly payment on a Mortgage Loan
due on any Due Date allocable to principal and/or interest on such Mortgage
Loan which, unless otherwise specified herein, shall give effect to any
related Debt Service Reduction and any Deficient Valuation that affects the
amount of the monthly payment due on such Mortgage Loan.
Securities Act: The Securities Act of 1933, as amended.
Security Agreement: For any Cooperative Loan, the agreement between
the owner of the related Co-op Shares and the originator of the related
Mortgage Note that defines the security interest in the Co-op Shares and the
related Proprietary Lease.
Seller: IndyMac Bank, F.S.B., a federal savings bank, and its
successors and assigns, in its capacity as seller of the Mortgage Loans to the
Depositor.
Senior Certificate Group: As specified in the Preliminary Statement.
Senior Certificates: As specified in the Preliminary Statement.
Senior Credit Support Depletion Date: The date on which the Class
Certificate Balance of each Class of Subordinated Certificates has been
reduced to zero.
Senior Percentage: As to any Senior Certificate Group and
Distribution Date, the percentage equivalent (not greater than 100%) of a
fraction the numerator of which is the aggregate Class Certificate Balance and
Component Balance of the Senior Certificates and Component of such Senior
Certificate Group immediately before the Distribution Date and the denominator
of which is the aggregate Stated Principal Balance of the Mortgage Loans in
the related Loan Group as of the Due Date occurring in the month prior to the
month of that Distribution Date (after giving effect to Principal Prepayments
received on the related Mortgage Loans in the Prepayment Period related to
such prior Due Date); provided, however, that on any Distribution Date after a
Senior Termination Date, the Senior Percentage for the Senior Certificates of
the remaining Senior Certificate Group is the percentage equivalent (not
greater than 100%) of a fraction, the numerator of which is the aggregate
Class Certificate Balance and Component Balance of the Senior Certificates and
Component of such remaining Senior Certificate Group immediately prior to such
Distribution Date and the denominator is the aggregate Class Certificate
Balance of all Classes of Certificates immediately prior to that Distribution
Date.
Senior Prepayment Percentage: As to a Senior Certificate Group and
any Distribution Date during the seven years beginning on the first
Distribution Date, 100%. The related Senior Prepayment Percentage for any
Distribution Date occurring on or after the seventh anniversary of the first
Distribution Date will, except as provided in this Agreement, be as follows:
for any Distribution Date in the first year
32
thereafter, the related Senior Percentage plus 70% of the related Subordinated
Percentage for such Distribution Date; for any Distribution Date in the second
year thereafter, the related Senior Percentage plus 60% of the related
Subordinated Percentage for such Distribution Date; for any Distribution Date
in the third year thereafter, the related Senior Percentage plus 40% of the
related Subordinated Percentage for such Distribution Date; for any
Distribution Date in the fourth year thereafter, the related Senior Percentage
plus 20% of the related Subordinated Percentage for such Distribution Date;
and for any Distribution Date thereafter, the related Senior Percentage for
such Distribution Date (unless on any Distribution Date the Senior Percentage
of a Senior Certificate Group exceeds the initial Senior Percentage for such
Senior Certificate Group in which case the Senior Prepayment Percentage for
each Senior Certificate Group for such Distribution Date will once again equal
100%). Notwithstanding the foregoing, no decrease in any Senior Prepayment
Percentage will occur unless both Senior Step Down Conditions are satisfied
with respect to all of the Mortgage Loans.
Notwithstanding the preceding paragraphs, if (x) on or before the
Distribution Date in April 2010, the Aggregate Subordinated Percentage is at
least 200% of the Aggregate Subordinated Percentage as of the Closing Date,
the delinquency test set forth in the definition of Senior Step Down
Conditions is satisfied and cumulative Realized Losses do not exceed 20% of
the aggregate Class Certificate Balance of the Subordinated Certificates as of
the Closing Date, the Senior Prepayment Percentage for each Senior Certificate
Group will equal the related Senior Percentage for that Distribution Date plus
50% of an amount equal to 100% minus the related Senior Percentage for that
Distribution Date and (y) after the Distribution Date in April 2010, the
Aggregate Subordinated Percentage is at least 200% of the Aggregate
Subordinated Percentage as of the Closing Date, the delinquency test set forth
in the definition of Senior Step Down Conditions is satisfied and cumulative
Realized Losses do not exceed 30% of the aggregate Class Certificate Balance
of the Subordinated Certificates as of the Closing Date, the Senior Prepayment
Percentage for each Senior Certificate Group will equal the related Senior
Percentage.
Senior Principal Distribution Amount: As to any Distribution Date and
any Loan Group, the sum of (i) the related Senior Percentage of all amounts
described in clauses (a) through (d) of the definition of Principal Amount for
that Loan Group and such Distribution Date, (ii) with respect to any Mortgage
Loan that became a Liquidated Mortgage Loan during the calendar month
preceding the month of such Distribution Date, the lesser of (x) the related
Senior Percentage of the Stated Principal Balance of such Mortgage Loan and
(y) either (A) if no Excess Losses were sustained on the Liquidated Mortgage
Loan during the preceding calendar month, the related Senior Prepayment
Percentage of the amount of the Liquidation Proceeds allocable to principal
received on the Mortgage Loan or (B) if an Excess Loss was sustained with
respect to such Liquidated Mortgage Loan during such preceding calendar month,
the Senior Percentage of the amount of the Liquidation Proceeds allocable to
principal received with respect to such Mortgage Loan, and (iii) the sum of
(x) the Senior Prepayment Percentage of the amounts described in clause (f) of
the definition of Principal Amount for that Loan Group and such Distribution
Date, and (y) the applicable Senior Prepayment Percentage of any Subsequent
Recoveries described in clause (g) of the definition of Principal Amount for
that Loan Group and such Distribution Date; provided, however, that if a
Bankruptcy Loss that is an Excess Loss is sustained with respect to a Mortgage
Loan in that Loan Group that is not a Liquidated Mortgage Loan, the Senior
Principal Distribution Amount will be reduced on the related Distribution Date
by the Senior Percentage of the applicable principal portion of such
Bankruptcy Loss; provided further, however, on any Distribution Date after a
Senior Termination Date, the Senior Principal Distribution Amount for the
remaining Senior Certificate Group will be calculated pursuant to the above
formula based on all the Mortgage Loans in the Mortgage Pool, as opposed to
the Mortgage Loans in the related Loan Group.
Senior Step Down Conditions: As to any Distribution Date: (i) the
aggregate Stated Principal Balance of all the Mortgage Loans 60 days or more
Delinquent (averaged over the preceding six month period) (including any
Mortgage Loans subject to foreclosure proceedings, REO Property (regardless of
33
whether that Mortgage Loan is 60 days or more Delinquent) and Mortgage Loans
the Mortgagors of which are in bankruptcy), as a percentage (a) if such date
is on or prior to second Senior Termination Date, the Subordinated Percentage
for that Loan Group of the aggregate Stated Principal Balance of the Mortgage
Loans in that Loan Group, or (b) if such date is after a Senior Termination
Date, the aggregate Class Certificate Balance of the Subordinated Certificates
immediately prior to such Distribution Date, does not equal or exceed 50%, and
(ii) cumulative Realized Losses do not exceed: (a) commencing with the
Distribution Date on the seventh anniversary of the first Distribution Date,
30% of the Original Subordinated Principal Balance, (b) commencing with the
Distribution Date on the eighth anniversary of the first Distribution Date,
35% of the Original Subordinated Principal Balance, (c) commencing with the
Distribution Date on the ninth anniversary of the first Distribution Date, 40%
of the Original Subordinated Principal Balance, (d) commencing with the
Distribution Date on the tenth anniversary of the first Distribution Date, 45%
of the Original Subordinated Principal Balance, and (e) commencing with the
Distribution Date on the eleventh anniversary of the first Distribution Date
and thereafter, 50% of the Original Subordinated Principal Balance.
Senior Termination Date: For each Senior Certificate Group, the
Distribution Date on which the aggregate Class Certificate Balance and
Component Balance of the related Classes and Component of Senior Certificates
has been reduced to zero.
Servicer: IndyMac Bank, F.S.B., a federal savings bank, and its
successors and assigns, in its capacity as servicer under this Agreement.
Servicer Advance Date: As to any Distribution Date, 12:30 P.M.
Pacific time on the Business Day preceding that Distribution Date.
Servicing Advances: All customary, reasonable, and necessary "out of
pocket" costs and expenses incurred in the performance by the Servicer of its
servicing obligations, including the cost of
(a) the preservation, restoration, and protection of a
Mortgaged Property,
(b) expenses reimbursable to the Servicer pursuant to
Section 3.12 and any enforcement or judicial proceedings, including
foreclosures,
(c) the maintenance and liquidation of any REO Property,
(d) compliance with the obligations under Section 3.10, and
(e) reasonable compensation to the Servicer or its
affiliates for acting as broker in connection with the sale of
foreclosed Mortgaged Properties and for performing certain default
management and other similar services (including appraisal services)
in connection with the servicing of defaulted Mortgage Loans. For
purposes of this clause (e), only costs and expenses incurred in
connection with the performance of activities generally considered to
be outside the scope of customary servicing or master servicing
duties shall be treated as Servicing Advances.
Servicing Criteria: The "servicing criteria" set forth in Item
1122(d) of Regulation AB.
Servicing Fee: As to each Mortgage Loan and any Distribution Date,
one month's interest at the applicable Servicing Fee Rate on the Stated
Principal Balance of the Mortgage Loan as of the Due Date in the month
preceding the month of such Distribution Date or, whenever a payment of
interest accompanies a Principal Prepayment in Full made by the Mortgagor,
interest at the Servicing Fee Rate on the Stated
34
Principal Balance of the Mortgage Loan for the period covered by the payment
of interest, subject to reduction as provided in Section 3.15.
Servicing Fee Rate: For each Mortgage Loan, 0.375%.
Servicing Officer: Any officer of the Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name and facsimile signature appear on a list of servicing officers furnished
to the Trustee by the Servicer on the Closing Date pursuant to this Agreement,
as the list may from time to time be amended.
Servicing Standard: That degree of skill and care exercised by the
Servicer with respect to mortgage loans comparable to the Mortgage Loans
serviced by the Servicer for itself or others.
Six-Month LIBOR Index: The average of the London interbank offered
rates for six month U.S. dollar deposits in the London market, generally as
set forth in either The Wall Street Journal or some other source generally
accepted in the residential mortgage loan origination business and specified
in the related Mortgage Note or, if such rate ceases to be published in The
Wall Street Journal or becomes unavailable for any reason, then based upon a
new index selected by the Servicer, based on comparable information, in each
case, as most recently announced as of either 45 days prior to, or the first
Business Day of the month immediately preceding the month of, such Adjustment
Date.
Soft Prepayment Charges: As to a Mortgage Loan, any charge payable by
a Mortgagor in connection with certain partial Principal Prepayments and all
Principal Prepayments in Full made within the related Prepayment Charge Period
other than as a result of selling the Mortgaged Property, the Soft Prepayment
Charges with respect to each applicable Mortgage Loan so held by the Trust
Fund being identified in the Mortgage Loan Schedule.
Special Hazard Coverage Termination Date: The point in time at which
the Special Hazard Loss Coverage Amount is reduced to zero.
Special Hazard Loss: Any Realized Loss suffered by a Mortgaged
Property on account of direct physical loss, but not including (i) any loss of
a type covered by a hazard insurance policy or a flood insurance policy
required to be maintained with respect to such Mortgaged Property pursuant to
Section 3.10 to the extent of the amount of such loss covered thereby, or (ii)
any loss caused by or resulting from:
(a) normal wear and tear;
(b) fraud, conversion or other dishonest act on the part of
the Trustee, the Servicer or any of their agents or employees
(without regard to any portion of the loss not covered by any errors
and omissions policy);
(c) errors in design, faulty workmanship or faulty
materials, unless the collapse of the property or a part thereof
ensues and then only for the ensuing loss;
(d) nuclear or chemical reaction or nuclear radiation or
radioactive or chemical contamination, all whether controlled or
uncontrolled, and whether such loss be direct or indirect, proximate
or remote or be in whole or in part caused by, contributed to or
aggravated by a peril covered by the definition of the term "Special
Hazard Loss";
(e) hostile or warlike action in time of peace and war,
including action in hindering, combating or defending against an
actual, impending or expected attack:
35
1. by any government or sovereign power, de jure or
de facto, or by any authority maintaining or using military,
naval or air forces; or
2. by military, naval or air forces; or
3. by an agent of any such government, power,
authority or forces;
(f) any weapon of war employing nuclear fission, fusion or
other radioactive force, whether in time of peace or war; or
(g) insurrection, rebellion, revolution, civil war, usurped
power or action taken by governmental authority in hindering,
combating or defending against such an occurrence, seizure or
destruction under quarantine or customs regulations, confiscation by
order of any government or public authority, or risks of contraband
or illegal transportation or trade.
Special Hazard Loss Coverage Amount: With respect to the first
Distribution Date, $4,690,000. With respect to any Distribution Date after the
first Distribution Date, the lesser of (a) the greatest of (i) 1% of the
aggregate of the principal balances of the Mortgage Loans, (ii) twice the
principal balance of the largest Mortgage Loan and (iii) the aggregate of the
principal balances of all Mortgage Loans secured by Mortgaged Properties
located in the single California postal zip code area having the highest
aggregate principal balance of any such zip code area and (b) the Special
Hazard Loss Coverage Amount as of the Closing Date less the amount, if any, of
Special Hazard Losses allocated to the Certificates since the Closing Date.
All principal balances for the purpose of this definition will be calculated
as of the first day of the calendar month preceding the month of such
Distribution Date after giving effect to Scheduled Payments on the Mortgage
Loans then due, whether or not paid.
Special Hazard Mortgage Loan: A Liquidated Mortgage Loan as to which
a Special Hazard Loss has occurred.
Startup Day: The Closing Date.
Stated Principal Balance: As to any Mortgage Loan and Due Date, the
unpaid principal balance of such Mortgage Loan as of such Due Date, as
specified in the amortization schedule at the time relating thereto (before
any adjustment to such amortization schedule by reason of any moratorium or
similar waiver or grace period) after giving effect to the sum of: (i) the
payment of principal due on such Due Date and irrespective of any delinquency
in payment by the related Mortgagor and (ii) any Liquidation Proceeds
allocable to principal received in the prior calendar month and Principal
Prepayments received through the last day of the Prepayment Period in which
the Due Date occurs, in each case with respect to such Mortgage Loan.
Subcontractor: Any vendor, subcontractor or other Person that is not
responsible for the overall servicing (as "servicing" is commonly understood
by participants in the mortgage-backed securities market) of Mortgage Loans
but performs one or more discrete functions identified in Item 1122(d) of
Regulation AB with respect to the Mortgage Loans under the direction or
authority of the Servicer or the Trustee, as the case may be.
Subordinate Pass-Through Rate: As to any Class of Subordinated
Certificates and the Interest Accrual Period for any Distribution Date, a per
annum rate equal to (a) the sum of the following for each Loan Group: the
product of (x) the related Assumed Balance immediately prior to that
Distribution Date and (y) the Weighted Average Adjusted Net Mortgage Rate of
the Mortgage Loans in that Loan Group
36
divided by (b) the sum of the Assumed Balance for each Loan Group immediately
prior to that Distribution Date.
Subordinated Certificates: As specified in the Preliminary Statement.
Subordinated Percentage: As to any Distribution Date on or prior to a
Senior Termination Date and any Loan Group, 100% minus the Senior Percentage
for the Senior Certificate Group relating to such Loan Group for such
Distribution Date. As to any Distribution Date after a Senior Termination
Date, 100% minus the Senior Percentage for such Distribution Date.
Subordinated Prepayment Percentage: As to any Distribution Date and
Loan Group, 100% minus the related Senior Prepayment Percentage for such
Distribution Date.
Subordinated Principal Distribution Amount: As to any Distribution
Date and Loan Group, the sum of the following with respect to each Loan Group:
(i) the Subordinated Percentage of all amounts described in clauses (a)
through (d) of the definition of Principal Amount with respect to such Loan
Group and such Distribution Date, (ii) with respect to any Mortgage Loan in
the related Loan Group that became a Liquidated Mortgage Loan during the
calendar month preceding the month of such Distribution Date, the amount of
Liquidation Proceeds allocable to principal received with respect thereto
remaining after application thereof pursuant to clause (ii) of the definition
of Senior Principal Distribution Amount for that Loan Group, up to the related
Subordinated Percentage of the Stated Principal Balance of such Mortgage Loan
and (iii) the sum of the Subordinated Prepayment Percentage of the amounts
described in clauses (f) and (g) of the definition of Principal Amount with
respect to that Loan Group for such Distribution Date; provided, however, that
on any Distribution Date after a Senior Termination Date, the Subordinated
Principal Distribution Amount will not be calculated by Loan Group but will
equal the amount calculated pursuant to the formula set forth above based on
the applicable Subordinated Percentage and Subordinated Prepayment Percentage
for the Subordinated Certificates for such Distribution Date with respect to
all of the Mortgage Loans as opposed to the Mortgage Loans only in the related
Loan Group.
Subsequent Recoveries: As to any Distribution Date, with respect to a
Liquidated Mortgage Loan that resulted in a Realized Loss in a prior calendar
month, unexpected amounts received by the Servicer (net of any related
expenses permitted to be reimbursed pursuant to Section 3.09) specifically
related to such Liquidated Mortgage Loan.
Substitute Mortgage Loan: A Mortgage Loan substituted by the Seller
for a Deleted Mortgage Loan that must, on the date of substitution, as
confirmed in a Request for Release, substantially in the form of Exhibit M,
(i) have a Stated Principal Balance, after deduction of the
principal portion of the Scheduled Payment due in the month of substitution,
not in excess of, and not more than 10% less than, the Stated Principal
Balance of the Deleted Mortgage Loan (unless the amount of any shortfall is
deposited by the Seller in the Certificate Account and held for distribution
to the Certificateholders on the related Distribution Date);
(ii) have a Mortgage Rate no lower than and not more than 1% per
annum higher than the Deleted Mortgage Loan;
(iii) have a Maximum Mortgage Rate not more than 1% per annum
higher than and not lower than the Maximum Mortgage Rate
of the deleted Mortgage Loan;
37
(iv) have the same Mortgage Index and interval between Adjustment
Dates as the deleted Mortgage Loan and a Gross Margin not
more than 1% per annum higher than, and not lower than that
of the deleted Mortgage Loan, provided that any such
Substitute Mortgage Loan with a remaining term to maturity
greater than that of the Deleted Mortgage Loan may not
exceed 5% of the Cut-off Date Pool Principal Balance;
(vi) have a Loan-to-Value Ratio no higher than that of the
Deleted Mortgage Loan;
(vii) have a remaining term to maturity no greater than (and not
more than one year less than) that of the Deleted Mortgage Loan;
(viii) not be a Cooperative Loan unless the Deleted Mortgage Loan
was a Cooperative Loan; and
(ix) comply with each representation and warranty in Section 2.03.
Substitution Adjustment Amount: As defined in Section 2.03.
Suspension Notification: Notification to the Commission of the
suspension of the Trust Fund's obligation to file reports pursuant to Section
15(d) of the Exchange Act.
Targeted Balance: Not applicable.
Targeted Principal Classes: As specified in the Preliminary
Statement.
Transaction Documents: This Agreement and any other document or
agreement entered into in connection with the Trust Fund, the Certificates or
the Mortgage Loans.
Transfer: Any direct or indirect transfer or sale of any Ownership
Interest in a Residual Certificate.
Transfer Payment Made: As defined in Section 4.03.
Transfer Payment Received: As defined in Section 4.03.
Trust Fund: The corpus of the trust created under this Agreement
consisting of
(i) the Mortgage Loans and all interest and principal received on
them after the Cut-off Date, other than amounts due on the Mortgage Loans by
the Cut-off Date;
(ii) the Certificate Account, the Distribution Account and all
amounts deposited therein pursuant to this Agreement (including amounts
received from the Depositor on the Closing Date that will be deposited by the
Servicer in the Certificate Account pursuant to Section 2.01);
(iii) property that secured a Mortgage Loan and has been acquired by
foreclosure, deed-in-lieu of foreclosure, or otherwise;
(iv) the right to collect any amounts under any mortgage insurance
policies covering any Mortgage Loan and any collections received under any
mortgage insurance policies covering any Mortgage Loan;
(v) all proceeds of the conversion, voluntary or involuntary, of any
of the foregoing.
38
Trustee: Deutsche Bank National Trust Company and its successors and,
if a successor trustee is appointed under this Agreement, the successor.
Trustee Fee: The fee payable to the Trustee on each Distribution Date
for its services as Trustee hereunder, in an amount equal to one-twelfth of
the Trustee Fee Rate multiplied by the aggregate Stated Principal Balance of
the Mortgage Loans as of the Due Date in the month preceding the month of such
Distribution Date (after giving effect to Principal Prepayments in the
Prepayment Period related to that prior Due Date).
Trustee Fee Rate: 0.010% per annum.
The terms "United States," "State," and "International Organization"
have the meanings in section 7701 of the Code or successor provisions. A
corporation will not be treated as an instrumentality of the United States or
of any State or political subdivision thereof for these purposes if all of its
activities are subject to tax and, with the exception of the Federal Home Loan
Mortgage Corporation, a majority of its board of directors is not selected by
such government unit.
UCC: The Uniform Commercial Code for the State of New York.
Undercollateralized Group: As defined in Section 4.03.
Underwriter's Exemption: Prohibited Transaction Exemption 2002-41, 67
Fed. Reg. 54487 (2002) (or any successor thereto), or any substantially
similar administrative exemption granted by the U.S. Department of Labor
United States Person or U.S. Person:
(i) A citizen or resident of the United States;
(ii) a corporation (or entity treated as a corporation for tax
purposes) created or organized in the United States or under the laws of the
United States or of any state thereof, including, for this purpose, the
District of Columbia;
(iii) a partnership (or entity treated as a partnership for tax
purposes) organized in the United States or under the laws of the United
States or of any state thereof, including, for this purpose, the District of
Columbia (unless provided otherwise by future Treasury regulations);
(iv) an estate whose income is includible in gross income for United
States income tax purposes regardless of its source; or
(v) a trust, if a court within the United States is able to exercise
primary supervision over the administration of the trust and one or more U.S.
Persons have authority to control all substantial decisions of the trust.
Notwithstanding the last clause of the preceding sentence, to the extent
provided in Treasury regulations, certain trusts in existence on August 20,
1996, and treated as U.S. Persons before that date, may elect to continue to
be U.S. Persons.
U.S.A. Patriot Act: The Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act
of 2001.
Voting Rights: The portion of the voting rights of all of the
Certificates that is allocated to any Certificate. As of any date of
determination, (a) 1% of all Voting Rights shall be allocated to the Holder
39
of the Class A-R Certificates, (b) 1% of all Voting Rights shall be allocated
to each of the Class 1-X and Class 2-X Certificates and (c) the remaining
Voting Rights shall be allocated among Holders of the remaining Classes of
Senior and Subordinated Certificates in proportion to the Certificate Balances
of the respective Certificates on the date.
Weighted Average Adjusted Net Mortgage Rate: For any Distribution
Date and Loan Group, the average of the Adjusted Net Mortgage Rate of each
Mortgage Loan in that Loan Group, weighted on the basis of its Stated
Principal Balance as of the Due Date in the prior month (after giving effect
to Principal Prepayments in the Prepayment Period related to such prior Due
Date).
Weighted Average Initial Adjustment Date: Not applicable.
Withdrawal Date: The 18th day of each month, or if such day is not a
Business Day, the next preceding Business Day.
Section 1.02 Rules of Construction.
Except as otherwise expressly provided in this Agreement or unless
the context clearly requires otherwise
(a) References to designated articles, sections, subsections,
exhibits, and other subdivisions of this Agreement, such as "Section 6.12
(a)," refer to the designated article, section, subsection, exhibit, or other
subdivision of this Agreement as a whole and to all subdivisions of the
designated article, section, subsection, exhibit, or other subdivision. The
words "herein," "hereof," "hereto," "hereunder," and other words of similar
import refer to this Agreement as a whole and not to any particular article,
section, exhibit, or other subdivision of this Agreement.
(b) Any term that relates to a document or a statute, rule, or
regulation includes any amendments, modifications, supplements, or any other
changes that may have occurred since the document, statute, rule, or
regulation came into being, including changes that occur after the date of
this Agreement.
(c) Any party may execute any of the requirements under this
Agreement either directly or through others, and the right to cause something
to be done rather than doing it directly shall be implicit in every
requirement under this Agreement. Unless a provision is restricted as to time
or limited as to frequency, all provisions under this Agreement are implicitly
available and things may happen from time to time.
(d) The term "including" and all its variations mean "including but
not limited to." Except when used in conjunction with the word "either," the
word "or" is always used inclusively (for example, the phrase "A or B" means
"A or B or both," not "either A or B but not both").
(e) A reference to "a [thing]" or "any [of a thing]" does not imply
the existence or occurrence of the thing referred to even though not followed
by "if any," and "any [of a thing]" is any of it. A reference to the plural of
anything as to which there could be either one or more than one does not imply
the existence of more than one (for instance, the phrase "the obligors on a
note" means "the obligor or obligors on a note"). "Until [something occurs]"
does not imply that it must occur, and will not be modified by the word
"unless." The word "due" and the word "payable" are each used in the sense
that the stated time for payment has passed. The word "accrued" is used in its
accounting sense, i.e., an amount paid is no longer accrued. In the
calculation of amounts of things, differences and sums may generally result in
negative numbers, but when the calculation of the excess of one thing over
another
40
results in zero or a negative number, the calculation is disregarded and an
"excess" does not exist. Portions of things may be expressed as fractions or
percentages interchangeably.
(f) All accounting terms used in an accounting context and not
otherwise defined, and accounting terms partly defined in this Agreement, to
the extent not completely defined, shall be construed in accordance with
generally accepted accounting principles. To the extent that the definitions
of accounting terms in this Agreement are inconsistent with their meanings
under generally accepted accounting principles, the definitions contained in
this Agreement shall control. Capitalized terms used in this Agreement without
definition that are defined in the Uniform Commercial Code are used in this
Agreement as defined in the Uniform Commercial Code.
(g) In the computation of a period of time from a specified date to a
later specified date or an open-ended period, the words "from" and "beginning"
mean "from and including," the word "after" means "from but excluding," the
words "to" and "until" mean "to but excluding," and the word "through" means
"to and including." Likewise, in setting deadlines or other periods, "by"
means "by." The words "preceding," "following," and words of similar import,
mean immediately preceding or following. References to a month or a year refer
to calendar months and calendar years.
(h) Any reference to the enforceability of any agreement against a
party means that it is enforceable, subject as to enforcement against the
party, to applicable bankruptcy, insolvency, reorganization, and other similar
laws of general applicability relating to or affecting creditors' rights and
to general equity principles.
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ARTICLE TWO
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans.
(a) The Seller, concurrently with the execution and delivery of this
Agreement, hereby transfers to the Depositor, without recourse, all the
interest of the Seller in each Mortgage Loan, including all interest and
principal received or receivable by the Seller on each Mortgage Loan after the
Cut-off Date and all interest and principal payments on each Mortgage Loan
received before the Cut-off Date for installments of interest and principal
due after the Cut-off Date but not including payments of principal and
interest due by the Cut-off Date. By the Closing Date, the Seller shall
deliver to the Depositor or, at the Depositor's direction, to the Trustee or
other designee of the Depositor, the Mortgage File for each Mortgage Loan
listed in the Mortgage Loan Schedule (except that, in the case of Mortgage
Loans that are Delay Delivery Mortgage Loans, such delivery may take place
within five Business Days of the Closing Date) as of the Closing Date. The
delivery of the Mortgage Files shall be made against payment by the Depositor
of the purchase price, previously agreed to by the Seller and Depositor, for
the Mortgage Loans. With respect to any Mortgage Loan that does not have a
first payment date on or before the Due Date in the month of the first
Distribution Date, the Seller shall deposit into the Distribution Account on
the first Distribution Account Deposit Date an amount equal to one month's
interest at the related Adjusted Mortgage Rate on the Cut-off Date Principal
Balance of such Mortgage Loan. Also on the Closing Date the Depositor shall
deposit $100 into the Certificate Account for the benefit of the Class P
Certificates.
(b) The Depositor, concurrently with the execution and delivery of
this Agreement, hereby transfers to the Trustee for the benefit of the
Certificateholders, without recourse, all the interest of the Depositor in the
Trust Fund, together with the Depositor's right to require the Seller to cure
any breach of a representation or warranty made in this Agreement by the
Seller or to repurchase or substitute for any affected Mortgage Loan in
accordance with this Agreement.
(c) In connection with the transfer and assignment of each Mortgage
Loan, the Depositor has delivered (or, in the case of the Delay Delivery
Mortgage Loans, will deliver to the Trustee within the time periods specified
in the definition of Delay Delivery Mortgage Loans), for the benefit of the
Certificateholders the following documents or instruments with respect to each
Mortgage Loan so assigned:
(i) The original Mortgage Note, endorsed by manual or facsimile
signature in blank in the following form: "Pay to the order of
_______________ ______________without recourse," with all
intervening endorsements showing a complete chain of endorsement
from the originator to the Person endorsing the Mortgage Note (each
endorsement being sufficient to transfer all interest of the party
so endorsing, as noteholder or assignee thereof, in that Mortgage
Note) or a lost note affidavit for any Lost Mortgage Note from the
Seller stating that the original Mortgage Note was lost or
destroyed, together with a copy of the Mortgage Note.
(ii) Except as provided below and for each Mortgage Loan that
is not a MERS Mortgage Loan, the original recorded Mortgage or a
copy of such Mortgage certified by the Seller as being a true and
complete copy of the Mortgage (or, in the case of a Mortgage for
which the related Mortgaged Property is located in the Commonwealth
of Puerto Rico, a true copy of the Mortgage certified as such by the
applicable notary) and in the case of each MERS Mortgage Loan, the
original Mortgage, noting the presence of the MIN of the Mortgage
Loans and either language indicating that the Mortgage Loan is a MOM
Loan if the Mortgage Loan is a MOM
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Loan or if the Mortgage Loan was not a MOM Loan at origination,
the original Mortgage and the assignment thereof to MERS, with
evidence of recording indicated thereon, or a copy of the Mortgage
certified by the public recording office in which such Mortgage
has been recorded;
(iii) In the case of a Mortgage Loan that is not a MERS
Mortgage Loan, a duly executed assignment of the Mortgage (which may
be included in a blanket assignment or assignments), together with,
except as provided below, all interim recorded assignments of the
mortgage (each assignment, when duly and validly completed, to be in
recordable form and sufficient to effect the assignment of and
transfer to its assignee of the Mortgage to which the assignment
relates). If the related Mortgage has not been returned from the
applicable public recording office, the assignment of the Mortgage
may exclude the information to be provided by the recording office.
The assignment of Mortgage need not be delivered in the case of a
Mortgage for which the related Mortgage Property is located in the
Commonwealth of Puerto Rico.
(iv) The original or copies of each assumption, modification,
written assurance, or substitution agreement.
(v) Except as provided below, the original or duplicate
original lender's title policy and all its riders.
(vi) The originals of the following documents for each
Cooperative Loan:
(A) the Co-op Shares, together with a stock power in
blank;
(B) the executed Security Agreement;
(C) the executed Proprietary Lease;
(D) the executed Recognition Agreement;
(E) the executed UCC-1 financing statement that has been
filed in all places required to perfect the Seller's
interest in the Co-op Shares and the Proprietary
Lease with evidence of recording on it; and
(F) executed UCC-3 financing statements or other
appropriate UCC financing statements required by
state law, evidencing a complete and unbroken line
from the mortgagee to the Trustee with evidence of
recording thereon (or in a form suitable for
recordation).
In addition, in connection with the assignment of any MERS Mortgage
Loan, the Seller agrees that it will cause, at the Seller's expense, the
MERS(R) System to indicate that the Mortgage Loans sold by the Seller to the
Depositor have been assigned by the Seller to the Trustee in accordance with
this Agreement for the benefit of the Certificateholders by including (or
deleting, in the case of Mortgage Loans that are repurchased in accordance
with this Agreement) in such computer files the information required by the
MERS(R) System to identify the series of the Certificates issued in connection
with such Mortgage Loans. The Seller further agrees that it will not, and will
not permit the Servicer to, and the Servicer agrees that it will not, alter
the information referenced in this paragraph with respect to any Mortgage Loan
sold by the Seller to the Depositor during the term of this Agreement unless
and until such Mortgage Loan is repurchased in accordance with the terms of
this Agreement.
43
In the event that in connection with any Mortgage Loan that is not a
MERS Mortgage Loan the Depositor cannot deliver (a) the original recorded
Mortgage, (b) all interim recorded assignments or (c) the lender's title
policy (together with all riders thereto) satisfying the requirements of
clause (ii), (iii) or (v) above, respectively, concurrently with the execution
and delivery of this Agreement because such document or documents have not
been returned from the applicable public recording office in the case of
clause (ii) or (iii) above, or because the title policy has not been delivered
to either the Servicer or the Depositor by the applicable title insurer in the
case of clause (v) above, then the Depositor shall promptly deliver to the
Trustee, in the case of clause (ii) or (iii) above, the original Mortgage or
the interim assignment, as the case may be, with evidence of recording
indicated on when it is received from the public recording office, or a copy
of it, certified, if appropriate, by the relevant recording office and in the
case of clause (v) above, the original or a copy of a written commitment or
interim binder or preliminary report of title issued by the title insurance or
escrow company, with the original or duplicate copy thereof to be delivered to
the Trustee upon receipt thereof. The delivery of the original Mortgage Loan
and each interim assignment or a copy of them, certified, if appropriate, by
the relevant recording office, shall not be made later than one year following
the Closing Date, or, in the case of clause (v) above, later than 120 days
following the Closing Date. If the Depositor is unable to deliver each
Mortgage by that date and each interim assignment because any documents have
not been returned by the appropriate recording office, or, in the case of each
interim assignment, because the related Mortgage has not been returned by the
appropriate recording office, the Depositor shall deliver the documents to the
Trustee as promptly as possible upon their receipt and, in any event, within
720 days following the Closing Date.
The Depositor shall forward to the Trustee (a) from time to time
additional original documents evidencing an assumption or modification of a
Mortgage Loan and (b) any other documents required to be delivered by the
Depositor or the Servicer to the Trustee. If the original Mortgage is not
delivered and in connection with the payment in full of the related Mortgage
Loan the public recording office requires the presentation of a "lost
instruments affidavit and indemnity" or any equivalent document, because only
a copy of the Mortgage can be delivered with the instrument of satisfaction or
reconveyance, the Servicer shall execute and deliver the required document to
the public recording office. If a public recording office retains the original
recorded Mortgage or if a Mortgage is lost after recordation in a public
recording office, the Seller shall deliver to the Trustee a copy of the
Mortgage certified by the public recording office to be a true and complete
copy of the original recorded Mortgage.
As promptly as practicable after any transfer of a Mortgage Loan
under this Agreement, and in any event within thirty days after the transfer,
the Trustee shall (i) affix the Trustee's name to each assignment of Mortgage,
as its assignee, and (ii) cause to be delivered for recording in the
appropriate public office for real property records the assignments of the
Mortgages to the Trustee, except that, if the Trustee has not received the
information required to deliver any assignment of a Mortgage for recording,
the Trustee shall deliver it as soon as practicable after receipt of the
needed information and in any event within thirty days.
If any Mortgage Loans have been prepaid in full as of the Closing
Date, the Depositor, in lieu of delivering the above documents to the Trustee,
will deposit in the Certificate Account the portion of the prepayment that is
required to be deposited in the Certificate Account pursuant to Section 3.06.
Notwithstanding anything to the contrary in this Agreement, within
five Business Days after the Closing Date, the Seller shall either
(x) deliver to the Trustee the Mortgage File as required
pursuant to this Section 2.01 for each Delay Delivery
Mortgage Loan or
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(y) (A) repurchase the Delay Delivery Mortgage Loan or (B)
substitute the Substitute Mortgage Loan for a Delay Delivery
Mortgage Loan, which repurchase or substitution shall be
accomplished in the manner and subject to the conditions in
Section 2.03 (treating each such Delay Delivery Mortgage
Loan as a Deleted Mortgage Loan for purposes of such Section
2.03);
provided, however, that if the Seller fails to deliver a Mortgage File for any
Delay Delivery Mortgage Loan within the period specified herein, the Seller
shall use its best reasonable efforts to effect a substitution, rather than a
repurchase of, such Deleted Mortgage Loan and provided further that the cure
period provided for in Section 2.02 or in Section 2.03 shall not apply to the
initial delivery of the Mortgage File for such Delay Delivery Mortgage Loan,
but rather the Seller shall have five (5) Business Days to cure such failure
to deliver. At the end of such period, the Trustee shall send a Delay Delivery
Certification for the Delay Delivery Mortgage Loans delivered during such
period in accordance with the provisions of Section 2.02.
(d) Notwithstanding the foregoing, however, the assignments of
Mortgage shall not be required to be submitted for recording (except with
respect to any Mortgage Loan secured by Mortgaged Property located in
Maryland) unless such failure to record would, as certified to the Trustee in
writing by the Servicer, result in a withdrawal or a downgrading by any Rating
Agency of the rating on any Class of Certificates; provided, however, that
each assignment of Mortgage shall be submitted for recording by the Seller (at
the direction of the Servicer) in the manner described above, at no expense to
the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable
direction by the Holders of Certificates entitled to at least 25% of the
Voting Rights, (ii) the occurrence of a bankruptcy, insolvency or foreclosure
relating to the Seller, (iii) the occurrence of a servicing transfer as
described in Section 7.02 and (iv) if the Seller is not the Servicer and with
respect to any one assignment or Mortgage, the occurrence of a bankruptcy,
insolvency or foreclosure relating to the Mortgagor under the related
Mortgage. Notwithstanding the foregoing, if the Seller is unable to pay the
cost of recording the assignments of Mortgage, such expense shall be paid by
the Trustee and shall be reimbursable out of the Distribution Account.
(e) The Seller agrees to treat the transfer of the Mortgage Loans to
the Depositor as a sale for all tax, accounting, and regulatory purposes.
(f) The Trust Fund does not intend to acquire or hold any Mortgage
Loan that would violate the representations made by the Seller set forth in
clause (27) of Schedule III.
Section 2.02 Acceptance by the Trustee of the Mortgage Loans.
The Trustee acknowledges receipt of the documents identified in the
Initial Certification in the form of Exhibit G-1, and declares that it holds
and will hold such documents and the other documents delivered to it
constituting the Mortgage Files for the Mortgage Loans, and that it holds or
will hold such other assets as are included in the Trust Fund, in trust for
the exclusive use and benefit of all present and future Certificateholders.
The Trustee acknowledges that it will maintain possession of the
related Mortgage Notes in the State of California, unless otherwise permitted
by the Rating Agencies. The Trustee agrees to execute and deliver on the
Closing Date to the Depositor, the Servicer and the Seller an Initial
Certification in the form of Exhibit G-1. Based on its review and examination,
and only as to the documents identified in such Initial Certification, the
Trustee acknowledges that such documents appear regular on their face and
relate to such Mortgage Loans. The Trustee shall be under no duty or
obligation to inspect, review or examine said documents, instruments,
certificates or other papers to determine that the same are genuine,
45
enforceable or appropriate for the represented purpose or that they have
actually been recorded in the real estate records or that they are other than
what they purport to be on their face.
By the thirtieth day after the Closing Date (or if that day is not a
Business Day, the succeeding Business Day), the Trustee shall deliver to the
Depositor, the Servicer, and the Seller a Delay Delivery Certification with
respect to the Mortgage Loans substantially in the form of Exhibit G-2, with
any applicable exceptions noted thereon.
By the ninetieth day after the Closing Date (or if that day is not a
Business Day, the succeeding Business Day), the Trustee shall deliver to the
Depositor, the Servicer and the Seller a Final Certification with respect to
the Mortgage Loans in the form of Exhibit H, with any applicable exceptions
noted thereon.
If, in the course of its review, the Trustee finds any document
constituting a part of a Mortgage File that does not meet the requirements of
Section 2.01, the Trustee shall list such as an exception in the Final
Certification. The Trustee shall not make any determination as to whether (i)
any endorsement is sufficient to transfer all interest of the party so
endorsing, as noteholder or assignee thereof, in that Mortgage Note or (ii)
any assignment is in recordable form or is sufficient to effect the assignment
of and transfer to the assignee thereof under the mortgage to which the
assignment relates. The Seller shall promptly correct any defect that
materially and adversely affects the interests of the Certificateholders
within 90 days from the date it was so notified of the defect and, if the
Seller does not correct the defect within that period, the Seller shall either
(a) substitute for the related Mortgage Loan a Substitute Mortgage Loan, which
substitution shall be accomplished in the pursuant Section 2.03, or (b)
purchase the Mortgage Loan at its Purchase Price from the Trustee within 90
days from the date the Seller was notified of the defect in writing.
If a substitution or purchase of a Mortgage Loan pursuant to this
provision is required because of a delay in delivery of any documents by the
appropriate recording office, or there is a dispute between either the
Servicer or the Seller and the Trustee over the location or status of the
recorded document, then the substitution or purchase shall occur within 720
days from the Closing Date. In no other case may a substitution or purchase
occur more than 540 days from the Closing Date.
Any substitution shall not be effected before the delivery to the
Trustee of the Opinion of Counsel, if required by Section 2.05, and any
substitution shall not be effected before the additional delivery to the
Trustee of a Request for Release substantially in the form of Exhibit N. No
substitution is permitted to be made in any calendar month after the
Determination Date for the month.
The Purchase Price for any Mortgage Loan shall be deposited by the
Seller in the Certificate Account by the Distribution Account Deposit Date for
the Distribution Date in the month following the month of repurchase and, upon
receipt of the deposit and certification with respect thereto in the form of
Exhibit N, the Trustee shall release the related Mortgage File to the Seller
and shall execute and deliver at the Seller's request any instruments of
transfer or assignment prepared by the Seller, in each case without recourse,
necessary to vest in the Seller, or a designee, the Trustee's interest in any
Mortgage Loan released pursuant hereto.
If pursuant to the foregoing provisions the Seller repurchases a
Mortgage Loan that is a MERS Mortgage Loan, the Servicer shall either (i)
cause MERS to execute and deliver an assignment of the Mortgage in recordable
form to transfer the Mortgage from MERS to the Seller and shall cause such
Mortgage to be removed from registration on the MERS(R) System in accordance
with MERS' rules and regulations or (ii) cause MERS to designate on the
MERS(R) System the Seller as the beneficial holder of such Mortgage Loan.
46
The Trustee shall retain possession and custody of each Mortgage File
in accordance with and subject to the terms and conditions set forth herein.
The Servicer shall promptly deliver to the Trustee, upon the execution or
receipt thereof, the originals of any other documents or instruments
constituting the Mortgage File that come into the possession of the Servicer
from time to time.
The obligation of the Seller to substitute for or to purchase any
Mortgage Loan that does not meet the requirements of Section 2.01 shall
constitute the sole remedy respecting the defect available to the Trustee, the
Depositor, and any Certificateholder against the Seller.
Section 2.03 Representations, Warranties, and Covenants of the Seller
and the Servicer.
(a) IndyMac, in its capacities as Seller and Servicer, makes the
representations and warranties in Schedule II, and by this reference
incorporated in this Agreement, to the Depositor and the Trustee, as of the
Closing Date.
(b) The Seller, in its capacity as Seller, makes the representations
and warranties in Schedule III, and by this reference incorporated in this
Agreement, to the Depositor and the Trustee, as of the Closing Date, or if so
specified in Schedule III, as of the Cut-off Date.
(c) Upon discovery by any of the parties hereto of a breach of a
representation or warranty made pursuant to Section 2.03(b) that materially
and adversely affects the interests of the Certificateholders in any Mortgage
Loan, the party discovering such breach shall give prompt notice thereof to
the other parties. Any breach of representations and warranties under clauses
(27) and (32) of Schedule III shall be deemed to affect materially and
adversely the interests of the Certificateholders in the affected Mortgage
Loans. The Seller covenants that within 90 days of the earlier of its
discovery or its receipt of written notice from any party of a breach of any
representation or warranty made pursuant to Section 2.03(b) which materially
and adversely affects the interests of the Certificateholders in any Mortgage
Loan, it shall cure such breach in all material respects, and if such breach
is not so cured, shall, (i) if the 90-day period expires before the second
anniversary of the Closing Date, remove the Mortgage Loan (a "Deleted Mortgage
Loan") from the Trust Fund and substitute in its place a Substitute Mortgage
Loan, in accordance with this Section 2.03; or (ii) repurchase the affected
Mortgage Loan or Mortgage Loans from the Trustee at the Purchase Price in the
manner set forth below. Any substitution pursuant to (i) above shall not be
effected before the delivery to the Trustee of the Opinion of Counsel, if
required by Section 2.05, and a Request for Release substantially in the form
of Exhibit N, and the Mortgage File for any Substitute Mortgage Loan. The
Seller shall promptly reimburse the Servicer and the Trustee for any expenses
reasonably incurred by the Servicer or the Trustee in respect of enforcing the
remedies for the breach.
With respect to any Substitute Mortgage Loan or Loans, the Seller
shall deliver to the Trustee for the benefit of the Certificateholders the
Mortgage Note, the Mortgage, the related assignment of the Mortgage, and such
other documents and agreements as are required by Section 2.01, with the
Mortgage Note endorsed and the Mortgage assigned as required by Section 2.01.
No substitution is permitted to be made in any calendar month after the
Determination Date for such month. Scheduled Payments due with respect to
Substitute Mortgage Loans in the month of substitution shall not be part of
the Trust Fund and will be retained by the Seller on the next succeeding
Distribution Date. For the month of substitution, distributions to
Certificateholders will include the monthly payment due on any Deleted
Mortgage Loan for such month and thereafter the Seller shall be entitled to
retain all amounts received in respect of such Deleted Mortgage Loan.
The Servicer shall amend the Mortgage Loan Schedule for the benefit
of the Certificateholders to reflect the removal of the Deleted Mortgage Loan
and the substitution of the Substitute Mortgage Loans
47
and the Servicer shall deliver the amended Mortgage Loan Schedule to the
Trustee. Upon the substitution, the Substitute Mortgage Loans shall be subject
to this Agreement in all respects, and the Seller shall be deemed to have made
with respect to the Substitute Mortgage Loans, as of the date of substitution,
the representations and warranties made pursuant to Section 2.03(b) with
respect to the Mortgage Loan. Upon any substitution and the deposit to the
Certificate Account of the amount required to be deposited therein in
connection with the substitution as described in the following paragraph, the
Trustee shall release the Mortgage File held for the benefit of the
Certificateholders relating to the Deleted Mortgage Loan to the Seller and
shall execute and deliver at the Seller's direction such instruments of
transfer or assignment prepared by the Seller, in each case without recourse,
as shall be necessary to vest title in the Seller, or its designee, the
Trustee's interest in any Deleted Mortgage Loan substituted for pursuant to
this Section 2.03.
For any month in which the Seller substitutes one or more Substitute
Mortgage Loans for one or more Deleted Mortgage Loans, the Servicer will
determine the amount (if any) by which the aggregate principal balance of all
such Substitute Mortgage Loans as of the date of substitution is less than the
aggregate Stated Principal Balance of all such Deleted Mortgage Loans (after
application of the scheduled principal portion of the monthly payments due in
the month of substitution). The amount of such shortage (the "Substitution
Adjustment Amount") plus, if the Seller is not the Servicer, an amount equal
to the aggregate of any unreimbursed Advances and Servicer Advances with
respect to such Deleted Mortgage Loans shall be deposited into the Certificate
Account by the Seller by the Distribution Account Deposit Date for the
Distribution Date in the month succeeding the calendar month during which the
related Mortgage Loan became required to be purchased or replaced hereunder.
If the Seller repurchases a Mortgage Loan, the Purchase Price therefor shall
be deposited in the Certificate Account pursuant to Section 3.06 by the
Distribution Account Deposit Date for the Distribution Date in the month
following the month during which the Seller became obligated hereunder to
repurchase or replace the Mortgage Loan and upon such deposit of the Purchase
Price and receipt of a Request for Release in the form of Exhibit N, the
Trustee shall release the related Mortgage File held for the benefit of the
Certificateholders to such Person, and the Trustee shall execute and deliver
at such Person's direction such instruments of transfer or assignment prepared
by such Person, in each case without recourse, as shall be necessary to
transfer title from the Trustee. The obligation under this Agreement of any
Person to cure, repurchase, or replace any Mortgage Loan as to which a breach
has occurred and is continuing shall constitute the sole remedy against the
Person respecting the breach available to Certificateholders, the Depositor,
or the Trustee on their behalf.
The representations and warranties made pursuant to this Section 2.03
shall survive delivery of the respective Mortgage Files to the Trustee for the
benefit of the Certificateholders and shall not be waived by the Depositor.
The Seller assigns to the Depositor and the Depositor assigns to the
Trustee all rights the Seller might have under contracts with third parties
relating to early payment defaults on the Mortgage Loans ("EPD Rights") and
the Servicer assumes any related duties as part of its servicing obligations.
Consistent with the Servicing Standard, the Servicer shall attempt to enforce
the EPD rights. If the Servicer's enforcement of the EPD Rights obligates the
Servicer to sell a Mortgage Loan to a third party, the Servicer shall
repurchase the Mortgage Loan at the Purchase Price and sell the Mortgage Loan
to the third party, provided however, in no case shall the Servicer be
obligated to repurchase a Mortgage Loan on account of EPD Rights unless and
until the Servicer shall have previously received repurchase payment from a
third party. The Servicer shall deposit into the Certificate Account all
amounts received in connection with the enforcement of EPD Rights, not
exceeding the Purchase Price, with respect to any Mortgage Loan. Any amounts
received by the Servicer with respect a Mortgage Loan in excess of the
Purchase Price shall be retained by the Servicer as additional servicing
compensation. The Trustee, upon receipt of certification from the Servicer of
the deposit of the Purchase Price in connection with a
48
repurchase of a Mortgage Loan and a Request for File Release from the
Servicer, shall release or cause to be released to the purchaser of such
Mortgage Loan the related Mortgage File and shall execute and deliver such
instruments of transfer or assignment prepared by the purchaser of such
Mortgage Loan, in each case without recourse, as shall be necessary to vest in
the purchaser of such Mortgage Loan any Mortgage Loan released pursuant hereto
and the purchaser of such Mortgage Loan shall succeed to all the Trustee's
right, title and interest in and to such Mortgage Loan and all security and
documents related thereto. Such assignment shall be an assignment outright and
not for security. The purchaser of such Mortgage Loan shall thereupon own such
Mortgage Loan, and all security and documents, free of any further obligation
to the Trustee or the Certificateholders with respect thereto.
Section 2.04 Representations and Warranties of the Depositor as to
the Mortgage Loans.
The Depositor represents and warrants to the Trustee with respect to
each Mortgage Loan as of the date of this Agreement or such other date set
forth in this Agreement that as of the Closing Date, and following the
transfer of the Mortgage Loans to it by the Seller, the Depositor had good
title to the Mortgage Loans and the Mortgage Notes were subject to no offsets,
defenses, or counterclaims.
The representations and warranties in this Section 2.04 shall survive
delivery of the Mortgage Files to the Trustee. Upon discovery by the Depositor
or the Trustee of any breach of any of the representations and warranties in
this Section that materially and adversely affects the interest of the
Certificateholders, the party discovering the breach shall give prompt written
notice to the others and to each Rating Agency.
Section 2.05 Delivery of Opinion of Counsel in Connection with
Substitutions.
(a) Notwithstanding any contrary provision of this Agreement, no
substitution pursuant to Section 2.02 or 2.03 shall be made more than 90 days
after the Closing Date unless the Seller delivers to the Trustee an Opinion of
Counsel, which Opinion of Counsel shall not be at the expense of either the
Trustee or the Trust Fund, addressed to the Trustee, to the effect that such
substitution will not (i) result in the imposition of the tax on "prohibited
transactions" on the Trust Fund or contributions after the Startup Date, as
defined in sections 860F(a)(2) and 860G(d) of the Code, respectively or (ii)
cause any REMIC created under this Agreement to fail to qualify as a REMIC at
any time that any Certificates are outstanding.
(b) Upon discovery by the Depositor, the Seller, the Servicer or the
Trustee that any Mortgage Loan does not constitute a "qualified mortgage"
within the meaning of section 860G(a)(3) of the Code, the party discovering
such fact shall promptly (and in any event within five Business Days of
discovery) give written notice thereof to the other parties. In connection
therewith, the Trustee shall require the Seller, at the Seller's option, to
either (i) substitute, if the conditions in Section 2.03(c) with respect to
substitutions are satisfied, a Substitute Mortgage Loan for the affected
Mortgage Loan, or (ii) repurchase the affected Mortgage Loan within 90 days of
such discovery in the same manner as it would a Mortgage Loan for a breach of
representation or warranty made pursuant to Section 2.03. The Trustee shall
reconvey to the Seller the Mortgage Loan to be released pursuant hereto in the
same manner, and on the same terms and conditions, as it would a Mortgage Loan
repurchased for breach of a representation or warranty contained in Section
2.03.
Section 2.06 Execution and Delivery of Certificates.
The Trustee acknowledges the transfer and assignment to it of the
Trust Fund and, concurrently with such transfer and assignment, has executed
and delivered to or upon the order of the Depositor, the Certificates in
authorized denominations evidencing directly or indirectly the entire
ownership of the
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Trust Fund. The Trustee agrees to hold the Trust Fund and exercise the rights
referred to above for the benefit of all present and future Holders of the
Certificates.
Section 2.07 REMIC Matters.
The Preliminary Statement sets forth the designations and "latest
possible maturity date" for federal income tax purposes of all interests
created under this Agreement. The "Startup Day" for purposes of the REMIC
Provisions shall be the Closing Date. Each REMIC's fiscal year shall be the
calendar year.
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ARTICLE THREE
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01 Servicer to Service Mortgage Loans.
For and on behalf of the Certificateholders, the Servicer shall
service and administer the Mortgage Loans in accordance with this Agreement
and the Servicing Standard.
The Servicer shall not make or permit any modification, waiver, or
amendment of any term of any Mortgage Loan that would cause any REMIC created
under this Agreement to fail to qualify as a REMIC or result in the imposition
of any tax under section 860F(a) or section 860G(d) of the Code.
Without limiting the generality of the foregoing, the Servicer, in
its own name or in the name of the Depositor and the Trustee, is hereby
authorized and empowered by the Depositor and the Trustee, when the Servicer
believes it appropriate in its reasonable judgment, to execute and deliver, on
behalf of the Trustee, the Depositor, the Certificateholders, or any of them,
any instruments of satisfaction or cancellation, or of partial or full release
or discharge, and all other comparable instruments, with respect to the
Mortgage Loans, and with respect to the Mortgaged Properties held for the
benefit of the Certificateholders. The Servicer shall prepare and deliver to
the Depositor or the Trustee any documents requiring execution and delivery by
either or both of them appropriate to enable the Servicer to service and
administer the Mortgage Loans to the extent that the Servicer is not permitted
to execute and deliver such documents pursuant to the preceding sentence. Upon
receipt of the documents, the Depositor or the Trustee shall execute the
documents and deliver them to the Servicer.
The Servicer further is authorized and empowered by the Trustee, on
behalf of the Certificateholders and the Trustee, in its own name, when the
Servicer believes it appropriate in its best judgment to register any Mortgage
Loan on the MERS(R) System, or cause the removal from the registration of any
Mortgage Loan on the MERS(R) System, to execute and deliver, on behalf of the
Trustee and the Certificateholders or any of them, any and all instruments of
assignment and other comparable instruments with respect to such assignment or
re-recording of a Mortgage in the name of MERS, solely as nominee for the
Trustee and its successors and assigns.
In accordance with and to the extent of the Servicing Standard, the
Servicer shall advance funds necessary to effect the payment of taxes and
assessments on the Mortgaged Properties, which advances shall be reimbursable
in the first instance from related collections from the Mortgagors pursuant to
Section 3.07, and further as provided in Section 3.09. The costs incurred by
the Servicer in effecting the timely payments of taxes and assessments on the
Mortgaged Properties and related insurance premiums shall not, for the purpose
of calculating monthly distributions to the Certificateholders, be added to
the Stated Principal Balances of the related Mortgage Loans, notwithstanding
that the Mortgage Loans so permit.
Nothing in this Agreement to the contrary shall limit the Servicer
from undertaking any legal action that it may deem appropriate with respect to
the Mortgage Loans including, without limitation, any rights or causes of
action arising out of the origination of the Mortgage Loans.
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Section 3.02 [Reserved].
Section 3.03 Rights of the Depositor and the Trustee in Respect of
the Servicer.
The Depositor may, but is not obligated to, enforce the obligations
of the Servicer under this Agreement and may, but is not obligated to,
perform, or cause a designee to perform, any defaulted obligation of the
Servicer under this Agreement and in connection with any such defaulted
obligation to exercise the related rights of the Servicer under this
Agreement; provided that the Servicer shall not be relieved of any of its
obligations under this Agreement by virtue of such performance by the
Depositor or its designee. Neither the Trustee nor the Depositor shall have
any responsibility or liability for any action or failure to act by the
Servicer nor shall the Trustee or the Depositor be obligated to supervise the
performance of the Servicer under this Agreement or otherwise.
Section 3.04 [Reserved].
Section 3.05 Trustee to Act as Servicer.
If the Servicer for any reason is no longer the Servicer under this
Agreement (including because of the occurrence or existence of an Event of
Default or termination by the Depositor), the Trustee or its successor shall
assume all of the rights and obligations of the Servicer under this Agreement
arising thereafter (except that the Trustee shall not be
(i) liable for losses of the Servicer pursuant to Section 3.10
or any acts or omissions of the predecessor Servicer hereunder,
(ii) obligated to make Advances if it is prohibited from doing
so by applicable law,
(iii) obligated to effectuate repurchases or substitutions of
Mortgage Loans hereunder, including repurchases or substitutions
pursuant to Section 2.02 or 2.03,
(iv) responsible for expenses of the Servicer pursuant to
Section 2.03, or
(v) deemed to have made any representations and warranties of
the Servicer hereunder). Any assumption shall be subject to Section
7.02.
Notwithstanding anything else in this Agreement to the contrary, in
no event shall the Trustee be liable for any servicing fee or for any
differential in the amount of the Servicing Fee paid under this Agreement and
the amount necessary to induce any successor Servicer to act as successor
Servicer under this Agreement and the transactions provided for in this
Agreement.
Section 3.06 Collection of Mortgage Loan Payments; Certificate
Account; Distribution Account.
(a) In accordance with and to the extent of the Servicing Standard, the
Servicer shall make reasonable efforts in accordance with the customary and
usual standards of practice of prudent mortgage servicers to collect all
payments called for under the Mortgage Loans to the extent the procedures are
consistent with this Agreement and any related Required Insurance Policy.
Consistent with the foregoing, the Servicer may in its discretion (i) subject
to Section 3.21, waive any Late Payment Fee or, subject to Section 3.20, any
Prepayment Charge in connection with the prepayment of a Mortgage Loan and
(ii) extend the due dates for payments due on a Delinquent Mortgage Loan for a
period not greater than 125 days. In connection with a seriously delinquent or
defaulted Mortgage Loan,
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the Servicer may, consistent with the Servicing Standard, waive, modify or
vary any term of that Mortgage Loan (including modifications that change the
Mortgage Rate, forgive the payment of principal or interest or extend the
final maturity date of that Mortgage Loan ), accept payment from the related
Mortgagor of an amount less than the Stated Principal Balance in final
satisfaction of that Mortgage Loan, or consent to the postponement of strict
compliance with any such term or otherwise grant indulgence to any Mortgagor
if in the Servicer's determination such waiver, modification, postponement or
indulgence is not materially adverse to the interests of the
Certificateholders (taking into account any estimated loss that might result
absent such action) and is expected to minimize the loss on such Mortgage
Loan; provided, however, the Servicer shall not initiate new lending to such
Mortgagor through the Trust and cannot, except as provided in the immediately
succeeding sentence, extend the maturity of any Mortgage Loan past the date on
which the final payment is due on the latest maturing Mortgage Loan as of the
Cut-off Date. With respect to no more than 5% of the Mortgage Loans (measured
by aggregate Cut-off Date Principal Balance of the Mortgage Loans), the
Servicer may extend the maturity of a Mortgage Loan past the date on which the
final payment is due on the latest maturing Mortgage Loan as of the Cut-off
Date, but in no event more than one year past such date. In the event of any
such arrangement, the Servicer shall make Advances on the related Mortgage
Loan in accordance with Section 4.01 during the scheduled period in accordance
with the amortization schedule of the Mortgage Loan without modification
thereof because of the arrangements. The Servicer shall not be required to
institute or join in litigation with respect to collection of any payment
(whether under a Mortgage, Mortgage Note, or otherwise or against any public
or governmental authority with respect to a taking or condemnation) if it
reasonably believes that enforcing the provision of the Mortgage or other
instrument pursuant to which the payment is required is prohibited by
applicable law. The Servicer shall not have the discretion to sell any
Delinquent or defaulted Mortgage Loan.
(b) [Reserved.]
(c) [Reserved.]
(d) The Servicer shall establish and maintain a Certificate Account
into which the Servicer shall deposit within two Business Days of receipt or as
otherwise specified in this Agrement, the following payments and collections
received by it in respect of Mortgage Loans after the Cut-off Date (other than
in respect of principal and interest due on the Mortgage Loans by the Cut-off
Date) and the following amounts required to be deposited hereunder:
(i) all payments on account of principal on the Mortgage Loans,
including Principal Prepayments;
(ii) all payments on account of interest on the Mortgage Loans,
net of the Prepayment Interest Excess and of the Servicing Fee;
(iii) all Insurance Proceeds, Subsequent Recoveries and
Liquidation Proceeds, other than proceeds to be applied to the
restoration or repair of the Mortgaged Property or released to the
Mortgagor in accordance with the Servicer's normal servicing
procedures;
(iv) any amount required to be deposited by the Servicer
pursuant to Section 3.06(f) in connection with any losses on
Permitted Investments;
(v) any amounts required to be deposited by the Servicer
pursuant to Sections 3.10 and 3.12;
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(vi) all Purchase Prices from the Servicer or Seller and all
Substitution Adjustment Amounts;
(vii) all Advances made by the Servicer pursuant to Section
4.01;
(viii) any other amounts required to be deposited under this
Agreement;
(ix) all Prepayment Charges collected and amounts payable by
the Servicer for the waiver of such amounts
In addition, with respect to any Mortgage Loan that is subject to a
buydown agreement, on each Due Date for the Mortgage Loan, in addition to the
monthly payment remitted by the Mortgagor, the Servicer shall cause funds to
be deposited into the Certificate Account in an amount required to cause an
amount of interest to be paid with respect to the Mortgage Loan equal to the
amount of interest that has accrued on the Mortgage Loan from the preceding
Due Date at the Mortgage Rate net of the Servicing Fee Rate on that date.
The foregoing requirements for remittance by the Servicer to the
Certificate Account shall be exclusive, it being understood and agreed that,
without limiting the generality of the foregoing, payments in the nature of
assumption fees, if collected, need not be remitted by the Servicer. If the
Servicer remits any amount not required to be remitted, it may at any time
withdraw that amount from the Certificate Account, any provision in this
Agreement to the contrary notwithstanding. The withdrawal or direction may be
accomplished by delivering written notice of it to the Trustee or any other
institution maintaining the Certificate Account that describes the amounts
deposited in error in the Certificate Account. The Servicer shall maintain
adequate records with respect to all withdrawals made pursuant to this Section
3.06. All funds deposited in the Certificate Account shall be held in trust
for the Certificateholders until withdrawn in accordance with Section 3.09.
(e) The Trustee shall establish and maintain the Distribution Account
on behalf of the Certificateholders. The Trustee shall, promptly upon receipt,
deposit in the Distribution Account and retain in the Distribution Account the
following:
(i) the aggregate amount remitted by the Servicer to the
Trustee pursuant to Section 3.09(a);
(ii) any amount deposited by the Servicer pursuant to Section
3.06(f) in connection with any losses on Permitted Investments; and
(iii) any other amounts deposited under this Agreement that are
required to be deposited in the Distribution Account.
If the Servicer remits any amount not required to be remitted, it may
at any time direct the Trustee in writing to withdraw that amount from the
Distribution Account, any provision in this Agreement to the contrary
notwithstanding. The direction may be accomplished by delivering an Officer's
Certificate to the Trustee that describes the amounts deposited in error in
the Distribution Account. All funds deposited in the Distribution Account
shall be held by the Trustee in trust for the Certificateholders until
disbursed in accordance with this Agreement or withdrawn in accordance with
Section 3.09. In no event shall the Trustee incur liability for withdrawals
from the Distribution Account at the direction of the Servicer.
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(f) Each institution at which the Certificate Account is maintained
shall invest the funds in such account as directed in writing by the Servicer
in Permitted Investments, which shall mature not later than the second
Business Day preceding the related Distribution Account Deposit Date (except
that if the Permitted Investment is an obligation of the institution that
maintains the account, then the Permitted Investment shall mature not later
than the Business Day preceding the Distribution Account Deposit Date) and
which shall not be sold or disposed of before its maturity. The funds in the
Distribution Account shall remain uninvested. All such Permitted Investments
shall be made in the name of the Trustee, for the benefit of the
Certificateholders. All income realized from any such investment of funds on
deposit in the Certificate Account shall be for the benefit of the Servicer as
servicing compensation and shall be remitted to it monthly as provided in this
Agreement. The amount of any realized losses on Permitted Investments in the
Certificate Account shall promptly be deposited by the Servicer in the
Certificate Account. The Trustee shall not be liable for the amount of any
loss incurred in respect of any investment or lack of investment of funds held
in the Certificate Account and made in accordance with this Section 3.06.
(g) The Servicer shall give notice to the Trustee, the Seller, each
Rating Agency and the Depositor of any proposed change of the location of the
Certificate Account not later than 30 days and not more than 45 days prior to
any change of this Agreement. The Trustee shall give notice to the Servicer,
the Seller, each Rating Agency and the Depositor of any proposed change of the
location of the Distribution Account not later than 30 days and not more than
45 days prior to any change of this Agreement.
(h) Upon a downgrade in the rating of an institution at which an
Eligible Account is held below the required ratings set forth in the
definition of Eligible Account, within 30 days of such downgrade, such account
will be transferred to an account meeting the requirements of the definition
of Eligible Account; provided, however, that this transfer requirement may be
waived by the applicable Rating Agency.
Section 3.07 Collection of Taxes, Assessments and Similar Items;
Escrow Accounts.
(a) To the extent required by the related Mortgage Note and not
violative of current law, the Servicer shall establish and maintain one or
more accounts (each, an "Escrow Account") and deposit and retain therein all
collections from the Mortgagors (or advances) for the payment of taxes,
assessments, hazard insurance premiums or comparable items for the account of
the Mortgagors. Nothing herein shall require the Servicer to compel a
Mortgagor to establish an Escrow Account in violation of applicable law.
(b) Withdrawals of amounts so collected from the Escrow Accounts may
be made only to effect timely payment of taxes, assessments, hazard insurance
premiums, condominium or PUD association dues, or comparable items, to
reimburse (without duplication) the Servicer out of related collections for
any payments made pursuant to Section 3.01 (with respect to taxes and
assessments and insurance premiums) and Section 3.10 (with respect to hazard
insurance), to refund to any Mortgagors any sums determined to be overages, to
pay interest, if required by law or the related Mortgage or Mortgage Note, to
Mortgagors on balances in the Escrow Account or to clear and terminate the
Escrow Account at the termination of this Agreement in accordance with Section
9.01. The Escrow Accounts shall not be a part of the Trust Fund.
(c) The Servicer shall advance any payments referred to in Section
3.07(a) that are not timely paid by the Mortgagors or advanced by the Servicer
on the date when the tax, premium or other cost for which such payment is
intended is due, but the Servicer shall be required so to advance only to the
extent that such advances, in the good faith judgment of the Servicer, will be
recoverable by the Servicer out of Insurance Proceeds, Liquidation Proceeds or
otherwise.
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Section 3.08 Access to Certain Documentation and Information
Regarding the Mortgage Loans.
The Servicer shall afford the Depositor and the Trustee reasonable
access to all records and documentation regarding the Mortgage Loans and all
accounts, insurance information and other matters relating to this Agreement,
such access being afforded without charge, but only upon reasonable request
and during normal business hours at the office designated by the Servicer.
Upon reasonable advance notice in writing, the Servicer will provide
to each Certificateholder or Certificate Owner that is a savings and loan
association, bank, or insurance company certain reports and reasonable access
to information and documentation regarding the Mortgage Loans sufficient to
permit the Certificateholder or Certificate Owner to comply with applicable
regulations of the OTS or other regulatory authorities with respect to
investment in the Certificates. The Servicer shall be entitled to be
reimbursed by each such Certificateholder or Certificate Owner for actual
expenses incurred by the Servicer in providing the reports and access.
Section 3.09 Permitted Withdrawals from the Certificate Account and
the Distribution Account.
(a) The Servicer may (and, in the case of clause (ix) below, shall)
from time to time make withdrawals from the Certificate Account for the
following purposes:
(i) to pay to the Servicer (to the extent not previously
retained) the servicing compensation to which it is entitled
pursuant to Section 3.15, and to pay to the Servicer, as additional
servicing compensation, earnings on or investment income with
respect to funds in or credited to the Certificate Account;
(ii) to reimburse the Servicer or successor Servicer for the
unreimbursed Advances made by it, such right of reimbursement
pursuant to this subclause (ii) being limited to amounts received on
the Mortgage Loans in respect of which the Advance was made;
(iii) to reimburse the Servicer or successor Servicer for any
Nonrecoverable Advance previously made by it;
(iv) to reimburse the Servicer for Insured Expenses from the
related Insurance Proceeds;
(v) to reimburse the Servicer for (a) unreimbursed Servicing
Advances, the Servicer's right to reimbursement pursuant to this
clause (a) with respect to any Mortgage Loan being limited to
amounts received on the Mortgage Loans that represent late
recoveries of the payments for which the advances were made pursuant
to Section 3.01 or Section 3.07, (b) unreimbursed Servicing Advances
made in respect of a Mortgage Loan for which such Servicing Advances
are not recoverable from the Mortgagor and (c) for unpaid Servicing
Fees as provided in Section 3.12;
(vi) to pay to the purchaser, with respect to each Mortgage
Loan or property acquired in respect of such Mortgage Loan that has
been purchased pursuant to Section 2.02, 2.03, or 3.12, all amounts
received thereon after the date of such purchase;
(vii) to reimburse the Seller, the Servicer, or the Depositor
for expenses incurred by any of them and reimbursable pursuant to
Section 6.03;
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(viii) to withdraw any amount deposited in the Certificate
Account and not required to be deposited in the Certificate Account;
(ix) by the Distribution Account Deposit Date, to withdraw (1)
the Available Funds and the Trustee Fee for the Distribution Date,
to the extent on deposit, and (2) the Prepayment Charges, and remit
such amount to the Trustee for deposit in the Distribution Account;
and
(x) to clear and terminate the Certificate Account upon
termination of this Agreement pursuant to Section 9.01.
The Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, to justify any withdrawal from the
Certificate Account pursuant to subclauses (i), (ii), (iv), (v), and (vi).
Before making any withdrawal from the Certificate Account pursuant to
subclause (iii), the Servicer shall deliver to the Trustee an Officer's
Certificate of a Servicing Officer indicating the amount of any previous
Advance determined by the Servicer to be a Nonrecoverable Advance and
identifying the related Mortgage Loans and their respective portions of the
Nonrecoverable Advance.
In addition to the amounts remitted to the Trustee by the Servicer
from the Certificate Account, by the Distribution Account Deposit Date, the
Servicer shall remit all Late Payment Fees assessable and not waived pursuant
to Section 3.21(a) to the Trustee for deposit in the Distribution Account.
(b) The Trustee shall withdraw funds from the Distribution Account
for distributions to Certificateholders in the manner specified in this
Agreement (and to withhold from the amounts so withdrawn the amount of any
taxes that it is authorized to withhold pursuant to the third paragraph of
Section 8.11). In addition, the Trustee may from time to time make withdrawals
from the Distribution Account for the following purposes:
(i) to pay to itself the Trustee Fee for the related
Distribution Date;
(ii) to withdraw and return to the Servicer any amount
deposited in the Distribution Account and not required to be
deposited therein; and
(iii) to clear and terminate the Distribution Account upon
termination of the Agreement pursuant to Section 9.01.
Section 3.10 Maintenance of Hazard Insurance; Maintenance of Primary
Insurance Policies.
(a) The Servicer shall maintain, for each Mortgage Loan, hazard
insurance with extended coverage in an amount that is at least equal to the
lesser of
(i) the maximum insurable value of the improvements securing the
Mortgage Loan and
(ii) the greater of (y) the outstanding principal balance of the
Mortgage Loan and (z) an amount such that the proceeds of the policy are
sufficient to prevent the Mortgagor or the mortgagee from becoming a
co-insurer.
Each policy of standard hazard insurance shall contain, or have an
accompanying endorsement that contains, a standard mortgagee clause. Any
amounts collected under the policies (other than the amounts to be applied to
the restoration or repair of the related Mortgaged Property or amounts
released to the Mortgagor in accordance with the Servicer's normal servicing
procedures) shall be deposited in the Certificate Account. Any cost incurred
in maintaining any insurance shall not, for the purpose of calculating monthly
distributions to the Certificateholders or remittances to the Trustee for
their benefit, be added to the principal balance of the Mortgage Loan,
notwithstanding that the Mortgage Loan so
57
permits. Such costs shall be recoverable by the Servicer out of late payments
(other than Late Payment Fees) by the related Mortgagor or out of Liquidation
Proceeds to the extent permitted by Section 3.09. No earthquake or other
additional insurance is to be required of any Mortgagor or maintained on
property acquired in respect of a Mortgage other than pursuant to any
applicable laws and regulations in force that require additional insurance. If
the Mortgaged Property is located at the time of origination of the Mortgage
Loan in a federally designated special flood hazard area and the area is
participating in the national flood insurance program, the Servicer shall
maintain flood insurance for the Mortgage Loan. The flood insurance shall be
in an amount equal to the least of (i) the original principal balance of the
related Mortgage Loan, (ii) the replacement value of the improvements that are
part of the Mortgaged Property, and (iii) the maximum amount of flood
insurance available for the related Mortgaged Property under the national
flood insurance program.
If the Servicer obtains and maintains a blanket policy insuring
against hazard losses on all of the Mortgage Loans, it shall have satisfied
its obligations in the first sentence of this Section 3.10. The policy may
contain a deductible clause on terms substantially equivalent to those
commercially available and maintained by comparable servicers. If the policy
contains a deductible clause and a policy complying with the first sentence of
this Section 3.10 has not been maintained on the related Mortgaged Property,
and if a loss that would have been covered by the required policy occurs, the
Servicer shall deposit in the Certificate Account, without any right of
reimbursement, the amount not otherwise payable under the blanket policy
because of the deductible clause. In connection with its activities as
Servicer of the Mortgage Loans, the Servicer agrees to present, on behalf of
itself, the Depositor, and the Trustee for the benefit of the
Certificateholders, claims under any blanket policy.
(b) The Servicer shall not take any action that would result in
non-coverage under any applicable Primary Insurance Policy of any loss that,
but for the actions of the Servicer, would have been covered thereunder. The
Servicer shall not cancel or refuse to renew any Primary Insurance Policy that
is in effect at the date of the initial issuance of the Certificates and is
required to be kept in force hereunder unless the replacement Primary
Insurance Policy for the canceled or non-renewed policy is maintained with a
Qualified Insurer. The Servicer need not maintain any Primary Insurance Policy
if maintaining the Primary Insurance Policy is prohibited by applicable law.
The Servicer agrees, to the extent permitted by applicable law, to effect the
timely payment of the premiums on each Primary Insurance Policy, and any costs
not otherwise recoverable shall be recoverable by the Servicer from the
related liquidation proceeds.
In connection with its activities as Servicer of the Mortgage Loans,
the Servicer agrees to present, on behalf of itself, the Trustee and the
Certificateholders, claims to the insurer under any Primary Insurance Policies
and, in this regard, to take any reasonable action in accordance with the
Servicing Standard necessary to permit recovery under any Primary Insurance
Policies respecting defaulted Mortgage Loans. Any amounts collected by the
Servicer under any Primary Insurance Policies shall be deposited in the
Certificate Account.
Section 3.11 Enforcement of Due-On-Sale Clauses; Assumption
Agreements.
(a) Except as otherwise provided in this Section 3.11, when any
property subject to a Mortgage has been conveyed by the Mortgagor, the
Servicer shall to the extent that it has knowledge of the conveyance and in
accordance with the Servicing Standard, enforce any due-on-sale clause
contained in any Mortgage Note or Mortgage, to the extent permitted under
applicable law and governmental regulations, but only to the extent that
enforcement will not adversely affect or jeopardize coverage under any
Required Insurance Policy. Notwithstanding the foregoing, the Servicer is not
required to exercise these rights with respect to a Mortgage Loan if the
Person to whom the related Mortgaged Property has been conveyed or is proposed
to be conveyed satisfies the conditions contained in the Mortgage Note and
58
Mortgage related thereto and the consent of the mortgagee under the Mortgage
Note or Mortgage is not otherwise so required under the Mortgage Note or
Mortgage as a condition to the transfer.
If (i) the Servicer is prohibited by law from enforcing any
due-on-sale clause, (ii) coverage under any Required Insurance Policy would be
adversely affected, (iii) the Mortgage Note does not include a due-on-sale
clause, or (iv) nonenforcement is otherwise permitted hereunder, the Servicer
is authorized, subject to Section 3.11(b), to take or enter into an assumption
and modification agreement from or with the person to whom the property has
been or is about to be conveyed, pursuant to which the person becomes liable
under the Mortgage Note and, unless prohibited by applicable state law, the
Mortgagor remains liable thereon. The Mortgage Loan must continue to be
covered (if so covered before the Servicer enters into the agreement) by the
applicable Required Insurance Policies.
The Servicer, subject to Section 3.11(b), is also authorized with the
prior approval of the insurers under any Required Insurance Policies to enter
into a substitution of liability agreement with the Person, pursuant to which
the original Mortgagor is released from liability and the Person is
substituted as Mortgagor and becomes liable under the Mortgage Note.
Notwithstanding the foregoing, the Servicer shall not be deemed to be in
default under this Section 3.11 because of any transfer or assumption that the
Servicer reasonably believes it is restricted by law from preventing, for any
reason whatsoever.
(b) Subject to the Servicer's duty to enforce any due-on-sale clause
to the extent set forth in Section 3.11(a), in any case in which a Mortgaged
Property has been conveyed to a Person by a Mortgagor, and the Person is to
enter into an assumption agreement or modification agreement or supplement to
the Mortgage Note or Mortgage that requires the signature of the Trustee, or
if an instrument of release signed by the Trustee is required releasing the
Mortgagor from liability on the Mortgage Loan, the Servicer shall prepare and
deliver to the Trustee for signature and shall direct the Trustee, in writing,
to execute the assumption agreement with the Person to whom the Mortgaged
Property is to be conveyed, and the modification agreement or supplement to
the Mortgage Note or Mortgage or other instruments appropriate to carry out
the terms of the Mortgage Note or Mortgage or otherwise to comply with any
applicable laws regarding assumptions or the transfer of the Mortgaged
Property to the Person. In connection with any such assumption, no material
term of the Mortgage Note may be changed.
In addition, the substitute Mortgagor and the Mortgaged Property must
be acceptable to the Servicer in accordance with its underwriting standards as
then in effect. Together with each substitution, assumption, or other
agreement or instrument delivered to the Trustee for execution by it, the
Servicer shall deliver an Officer's Certificate signed by a Servicing Officer
stating that the requirements of this subsection have been met in connection
with such Officer's Certificate. The Servicer shall notify the Trustee that
any substitution or assumption agreement has been completed by forwarding to
the Trustee the original of the substitution or assumption agreement, which in
the case of the original shall be added to the related Mortgage File and
shall, for all purposes, be considered a part of the Mortgage File to the same
extent as all other documents and instruments constituting a part of the
Mortgage File. The Servicer will retain any fee collected by it for entering
into an assumption or substitution of liability agreement as additional
servicing compensation.
Section 3.12 Realization Upon Defaulted Mortgage Loans.
The Servicer shall use reasonable efforts in accordance with the
Servicing Standard to foreclose on or otherwise comparably convert the
ownership of assets securing such of the Mortgage Loans as come into and
continue in default and as to which no satisfactory arrangements can be made
for collection of delinquent payments. In connection with the foreclosure or
other conversion, the Servicer shall follow the Servicing Standard and shall
follow the requirements of the insurer under any Required Insurance
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Policy. The Servicer shall not be required to expend its own funds in
connection with any foreclosure or towards the restoration of any property
unless it determines (i) that the restoration or foreclosure will increase the
proceeds of liquidation of the Mortgage Loan after reimbursement to itself of
restoration expenses and (ii) that restoration expenses will be recoverable to
it through Liquidation Proceeds (respecting which it shall have priority for
purposes of withdrawals from the Certificate Account). The Servicer shall be
responsible for all other costs and expenses incurred by it in any foreclosure
proceedings. The Servicer is entitled to reimbursement of such costs and
expenses from the liquidation proceeds with respect to the related Mortgaged
Property, as provided in the definition of Liquidation Proceeds. If the
Servicer has knowledge that a Mortgaged Property that the Servicer is
contemplating acquiring in foreclosure or by deed in lieu of foreclosure is
located within a one mile radius of any site listed in the Expenditure Plan
for the Hazardous Substance Clean Up Bond Act of 1984 or other site with
environmental or hazardous waste risks known to the Servicer, the Servicer
will, before acquiring the Mortgaged Property, consider the risks and only
take action in accordance with its established environmental review
procedures.
With respect to any REO Property, the deed or certificate of sale
shall be taken in the name of the Trustee for the benefit of the
Certificateholders, or its nominee, on behalf of the Certificateholders. The
Trustee's name shall be placed on the title to the REO Property solely as the
Trustee hereunder and not in its individual capacity. The Servicer shall
ensure that the title to the REO Property references the Pooling and Servicing
Agreement and the Trustee's capacity hereunder. Pursuant to its efforts to
sell the REO Property, the Servicer shall either itself or through an agent
selected by the Servicer protect and conserve the REO Property in accordance
with the Servicing Standard.
The Servicer shall perform the tax reporting and withholding required
by sections 1445 and 6050J of the Code with respect to foreclosures and
abandonments, the tax reporting required by section 6050H of the Code with
respect to the receipt of mortgage interest from individuals and, if required
by section 6050P of the Code with respect to the cancellation of indebtedness
by certain financial entities, by preparing any required tax and information
returns, in the form required.
If the Trust Fund acquires any Mortgaged Property as aforesaid or
otherwise in connection with a default or imminent default on a Mortgage Loan,
the REO Property shall only be held temporarily, shall be actively marketed
for sale, and the Servicer shall dispose of the Mortgaged Property as soon as
practicable, and in any case before the end of the third calendar year
following the calendar year in which the Trust Fund acquires the property.
Notwithstanding any other provision of this Agreement, no Mortgaged Property
acquired by the Trust Fund shall be rented (or allowed to continue to be
rented) or otherwise used for the production of income by or on behalf of the
Trust Fund.
The decision of the Servicer to foreclose on a defaulted Mortgage
Loan shall be subject to a determination by the Servicer that the proceeds of
the foreclosure would exceed the costs and expenses of bringing a foreclosure
proceeding. The proceeds received from the maintenance of any REO Properties,
net of reimbursement to the Servicer for costs incurred (including any
property or other taxes) in connection with maintenance of the REO Properties
and net of unreimbursed Servicing Fees, Advances, and Servicing Advances,
shall be applied to the payment of principal of and interest on the related
defaulted Mortgage Loans (with interest accruing as though the Mortgage Loans
were still current and adjustments, if applicable, to the Mortgage Rate were
being made in accordance with the Mortgage Note) and all such proceeds shall
be deemed, for all purposes in this Agreement, to be payments on account of
principal and interest on the related Mortgage Notes and shall be deposited
into the Certificate Account. To the extent the net proceeds received during
any calendar month exceeds the amount attributable to amortizing principal and
accrued interest at the related Mortgage Rate on the related Mortgage Loan for
the calendar month, the excess shall be considered to be a partial prepayment
of principal of the related Mortgage Loan.
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The proceeds from any liquidation of a Mortgage Loan, as well as any
proceeds from an REO Property, will be applied in the following order of
priority: first, to reimburse the Servicer for any related unreimbursed
Servicing Advances or Servicing Fees or for any related unreimbursed Advances,
as applicable; second, to reimburse the Servicer, as applicable, and to
reimburse the Certificate Account for any Nonrecoverable Advances (or portions
thereof) that were previously withdrawn by the Servicer pursuant to Section
3.09(a)(iii) that related to the Mortgage Loan; third, to accrued and unpaid
interest (to the extent no Advance has been made for such amount or any such
Advance has been reimbursed) on the Mortgage Loan or related REO Property, at
the Adjusted Net Mortgage Rate to the Due Date occurring in the month in which
such amounts are required to be distributed; and fourth, as a recovery of
principal of the Mortgage Loan. The Servicer will retain any Excess Proceeds
from the liquidation of a Liquidated Mortgage Loan as additional servicing
compensation pursuant to Section 3.15.
The Servicer may agree to a modification of any Mortgage Loan at the
request of the related Mortgagor if (i) the modification is in lieu of a
refinancing and (ii) the Servicer purchases that Mortgage Loan from the Trust
Fund as described below. Upon the agreement of the Servicer to modify a
Mortgage Loan in accordance with the preceding sentence, the Servicer shall
purchase that Mortgage Loan and all interest of the Trustee in that Mortgage
Loan shall automatically be deemed transferred and assigned to the Servicer
and all benefits and burdens of ownership thereof, including the right to
accrued interest thereon from the date of purchase and the risk of default
thereon, shall pass to the Servicer. The Servicer shall promptly deliver to
the Trustee a certification of a Servicing Officer to the effect that all
requirements of this paragraph have been satisfied with respect to a Mortgage
Loan to be repurchased pursuant to this paragraph.
The Servicer shall deposit the Purchase Price for any Mortgage Loan
repurchased pursuant to Section 3.12 in the Certificate Account pursuant to
Section 3.06 within one Business Day after the purchase of the Mortgage Loan.
Upon receipt by the Trustee of written notification of any such deposit signed
by a Servicing Officer, the Trustee shall release to the Servicer the related
Mortgage File and shall execute and deliver such instruments of transfer or
assignment, in each case without recourse, as shall be necessary to vest in
the Servicer any Mortgage Loan previously transferred and assigned pursuant
hereto. The Servicer covenants and agrees to indemnify the Trust Fund against
any liability for any "prohibited transaction" taxes and any related interest,
additions, and penalties imposed on the Trust Fund established hereunder as a
result of any modification of a Mortgage Loan effected pursuant to this
Section, or any purchase of a Mortgage Loan by the Servicer in connection with
a modification (but such obligation shall not prevent the Servicer or any
other appropriate Person from contesting any such tax in appropriate
proceedings and shall not prevent the Servicer from withholding payment of
such tax, if permitted by law, pending the outcome of such proceedings). The
Servicer shall have no right of reimbursement for any amount paid pursuant to
the foregoing indemnification, except to the extent that the amount of any
tax, interest, and penalties, together with interest thereon, is refunded to
the Trust Fund.
Section 3.13 Trustee to Cooperate; Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the receipt by the
Servicer of a notification that payment in full will be escrowed in a manner
customary for such purposes, the Servicer will immediately notify the Trustee
by delivering a Request for Release substantially in the form of Exhibit N.
Upon receipt of the request, the Trustee shall promptly release the related
Mortgage File to the Servicer, and the Trustee shall at the Servicer's
direction execute and deliver to the Servicer the request for reconveyance,
deed of reconveyance, or release or satisfaction of mortgage or such
instrument releasing the lien of the Mortgage in each case provided by the
Servicer, together with the Mortgage Note with written evidence of
cancellation thereon. The Servicer is authorized to cause the removal from the
registration on the MERS System of such Mortgage and to execute and deliver,
on behalf of the Trustee and the Certificateholders or any of them, any and
all instruments of satisfaction or cancellation or of
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partial or full release. Expenses incurred in connection with any instrument
of satisfaction or deed of reconveyance shall be chargeable to the related
Mortgagor.
From time to time and as shall be appropriate for the servicing or
foreclosure of any Mortgage Loan, including for such purpose collection under
any policy of flood insurance, any fidelity bond or errors or omissions
policy, or for the purposes of effecting a partial release of any Mortgaged
Property from the lien of the Mortgage or the making of any corrections to the
Mortgage Note or the Mortgage or any of the other documents included in the
Mortgage File, the Trustee shall, upon delivery to the Trustee of a Request
for Release in the form of Exhibit M signed by a Servicing Officer, release
the Mortgage File to the Servicer or its designee. Subject to the further
limitations set forth below, the Servicer shall cause the Mortgage File or
documents so released to be returned to the Trustee when the need therefor by
the Servicer no longer exists, unless the Mortgage Loan is liquidated and the
proceeds thereof are deposited in the Certificate Account, in which case the
Servicer shall deliver to the Trustee a Request for Release in the form of
Exhibit N, signed by a Servicing Officer.
If the Servicer at any time seeks to initiate a foreclosure
proceeding in respect of any Mortgaged Property as authorized by this
Agreement, the Servicer shall deliver to the Trustee, for signature, as
appropriate, any court pleadings, requests for trustee's sale, or other
documents necessary to effectuate such foreclosure or any legal action brought
to obtain judgment against the Mortgagor on the Mortgage Note or the Mortgage
or to obtain a deficiency judgment or to enforce any other remedies or rights
provided by the Mortgage Note or the Mortgage or otherwise available at law or
in equity.
Section 3.14 Documents, Records and Funds in Possession of the
Servicer to be Held for the Trustee.
The Servicer shall account fully to the Trustee for any funds it
receives or otherwise collects as Liquidation Proceeds or Insurance Proceeds
in respect of any Mortgage Loan. All Mortgage Files and funds collected or
held by, or under the control of, the Servicer in respect of any Mortgage
Loans, whether from the collection of principal and interest payments or from
Liquidation Proceeds, including any funds on deposit in the Certificate
Account, shall be held by the Servicer for and on behalf of the Trustee and
shall be and remain the sole and exclusive property of the Trustee, subject to
the applicable provisions of this Agreement. The Servicer also agrees that it
shall not create, incur or subject any Mortgage File or any funds that are
deposited in the Certificate Account, Distribution Account, or any Escrow
Account, or any funds that otherwise are or may become due or payable to the
Trustee for the benefit of the Certificateholders, to any claim, lien,
security interest, judgment, levy, writ of attachment, or other encumbrance,
or assert by legal action or otherwise any claim or right of setoff against
any Mortgage File or any funds collected on, or in connection with, a Mortgage
Loan, except, however, that the Servicer shall be entitled to set off against
and deduct from any such funds any amounts that are properly due and payable
to the Servicer under this Agreement.
Section 3.15 Servicing Compensation.
The Servicer may retain or withdraw from the Certificate Account the
Servicing Fee for each Mortgage Loan for the related Distribution Date. If the
Servicer directly services a Mortgage Loan, the Servicer may retain the
Servicing Fee for its own account as compensation for performing services.
Notwithstanding the foregoing, the Servicing Fee payable to the Servicer shall
be reduced by the lesser of the aggregate of the Prepayment Interest
Shortfalls with respect to the Distribution Date and the aggregate
Compensating Interest for the Distribution Date.
Additional servicing compensation in the form of Excess Proceeds,
Prepayment Interest Excess, assumption fees and all income net of any losses
realized from Permitted Investments shall be retained by
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the Servicer to the extent not required to be deposited in the Certificate
Account pursuant to Section 3.06. The Servicer shall be required to pay all
expenses incurred by it in connection with its servicing activities hereunder
(including the payment of any premiums for hazard insurance, and any Primary
Insurance Policy and maintenance of the other forms of insurance coverage
required by this Agreement) and shall not be entitled to reimbursement
therefor except as specifically provided in this Agreement.
Section 3.16 Access to Certain Documentation.
The Servicer shall provide to the OTS and the FDIC and to comparable
regulatory authorities supervising Holders of Certificates and Certificate
Owners and the examiners and supervisory agents of the OTS, the FDIC, and such
other authorities, access to the documentation regarding the Mortgage Loans
required by applicable regulations of the OTS and the FDIC. Access shall be
afforded without charge, but only upon reasonable prior written request and
during normal business hours at the offices designated by the Servicer.
Nothing in this Section 3.16 shall limit the obligation of the Servicer to
observe any applicable law prohibiting disclosure of information regarding the
Mortgagors and the failure of the Servicer to provide access as provided in
this Section 3.16 as a result of such obligation shall not constitute a breach
of this Section 3.16.
Section 3.17 Annual Statement as to Compliance.
(a) By March 15 of each year, commencing with 2008, the Servicer
shall deliver to the Trustee via electronic mail (▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇.▇▇▇)
and the Depositor an Officer's Certificate signed by two Servicing Officers
stating, as to each signer thereof, that (i) a review of the activities of the
Servicer during the preceding calendar year (or applicable portion thereof)
and of the performance of the Servicer under this Agreement has been made
under such officer's supervision, and (ii) to the best of such officer's
knowledge, based on the review, the Servicer has fulfilled all its obligations
under this Agreement, in all material respects throughout the year (or
applicable portion thereof), or, if there has been a failure to fulfill any
obligation in any material respect, specifying each failure known to the
officer and the nature and status thereof.
(b) [Reserved].
(c) Copies of such statement shall be provided by the Trustee to any
Certificateholder or Certificate Owner upon request at the Servicer's expense,
provided such statement is delivered by the Servicer to the Trustee.
Section 3.18 Errors and Omissions Insurance; Fidelity Bonds.
The Servicer shall obtain and maintain in force (a) policies of
insurance covering errors and omissions in the performance of its obligations
as Servicer hereunder and (b) a fidelity bond covering its officers,
employees, and agents. Each policy and bond shall, together, comply with the
requirements from time to time of FNMA or FHLMC for persons performing
servicing for mortgage loans purchased by FNMA or FHLMC. If any policy or bond
ceases to be in effect, the Servicer shall obtain a comparable replacement
policy or bond from an insurer or issuer meeting the above requirements as of
the date of the replacement.
Section 3.19 Notification of Adjustments.
On each Adjustment Date, the Servicer shall make interest rate
adjustments for each Mortgage Loan in compliance with the requirements of the
related Mortgage and Mortgage Note and applicable regulations. The Servicer
shall execute and deliver the notices required by each Mortgage and Mortgage
63
Note and applicable regulations regarding interest rate adjustments. The
Servicer also shall provide timely notification to the Trustee of all
applicable data and information regarding such interest rate adjustments and
the Servicer's methods of implementing such interest rate adjustments. Upon
the discovery by the Servicer or the Trustee that the Servicer has failed to
adjust or has incorrectly adjusted a Mortgage Rate or a monthly payment
pursuant to the terms of the related Mortgage Note and Mortgage, the Servicer
shall immediately deposit in the Certificate Account from its own funds the
amount of any loss caused thereby without reimbursement therefor; provided,
however, the Servicer shall not be liable with respect to any interest rate
adjustments made by any servicer prior to the Servicer.
Section 3.20 Prepayment Charges.
(a) The Servicer will not waive any part of any Prepayment Charge unless
the waiver relates to a default or a reasonably foreseeable default, the
Prepayment Charge would cause an undue hardship to the related borrower, the
Mortgaged Property is sold by the Mortgagor, the collection of any Prepayment
Charge would violate any relevant law or regulation or the waiving of the
Prepayment Charge would otherwise benefit the Trust Fund and it is expected
that the waiver would maximize recovery of total proceeds taking into account
the value of the Prepayment Charge and related Mortgage Loan and doing so is
standard and customary in servicing similar Mortgage Loans (including any
waiver of a Prepayment Charge in connection with a refinancing of a Mortgage
Loan that is related to a default or a reasonably foreseeable default). The
Servicer will not waive a Prepayment Charge in connection with a refinancing
of a Mortgage Loan that is not related to a default or a reasonably
foreseeable default.
(b) If a Prepayment Charge is waived other than as permitted by the
prior paragraph, then the Servicer is required to pay the amount of such
waived Prepayment Charge, for the benefit of the Holders of the Class P
Certificates, by depositing such amount into the Distribution Account from its
own funds, without any right of reimbursement therefor, together with and at
the time that the amount prepaid on the related Mortgage Loan is required to
be deposited into the Distribution Account.
(c) The Seller represents and warrants to the Depositor and the
Trustee, as of the Closing Date, that the information in the Prepayment Charge
Schedule (including the attached prepayment charge summary) is complete and
accurate in all material respects at the dates as of which the information is
furnished and each Prepayment Charge is permissible and enforceable in
accordance with its terms under applicable state law, except as the
enforceability thereof is limited due to acceleration in connection with a
foreclosure or other involuntary payment.
(d) Upon discovery by the Servicer or upon actual knowledge by a
Responsible Officer of the Trustee (provided, however, that the Trustee shall
have no obligation to conduct an independent investigation or inquiry in
relation thereto) of a breach of the foregoing clause (c) that materially and
adversely affects the right of the Holders of the Class P Certificates to any
Prepayment Charge, the party discovering the breach shall give prompt written
notice to the other parties. Within 60 days of the earlier of discovery by the
Servicer or receipt of notice by the Servicer of breach, the Servicer shall
cure the breach in all material respects or shall pay into the Certificate
Account the amount of the Prepayment Charge that would otherwise be due from
the Mortgagor, less any amount representing such Prepayment Charge previously
collected and paid by the Servicer into the Certificate Account.
Section 3.21 Late Payment Fees.
(a) The Servicer shall not waive any part of any Late Payment Fee
unless (i) the collection of any Late Payment Fee would violate any relevant
law or regulation; or (ii) the waiving of the Late Payment Fee would otherwise
benefit the Trust Fund and it is expected that the waiver would maximize
recovery of total proceeds, taking into account the value of the Late Payment
Fee and related Mortgage Loan and
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doing so is standard and customary in servicing similar Mortgage Loans
(including the waiver of a Late Payment Fee in connection with a refinancing
of a Mortgage Loan that is related to a default or reasonably foreseeable
default).
(b) If the covenants made by the Servicer in clause (a) above is
breached, the Servicer must pay into the Certificate Account prior to the
Distribution Account Deposit Date following the end of the related Prepayment
Period the amount of the waived Late Payment Fee.
(c) The Servicer shall remit Late Payment Fees assessable and not
waived pursuant to clause (a) above in accordance with Section 3.09.
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ARTICLE FOUR
DISTRIBUTIONS AND ADVANCES BY THE SERVICER
Section 4.01 Advances.
(a) The Servicer shall determine on or before each Servicer Advance
Date whether it is required to make an Advance pursuant to the definition
thereof. If the Servicer determines it is required to make an Advance, it
shall, on or before the Servicer Advance Date, either (i) deposit into the
Certificate Account an amount equal to the Advance or (ii) make an appropriate
entry in its records relating to the Certificate Account that any Amount Held
for Future Distribution has been used by the Servicer in discharge of its
obligation to make any such Advance. Any funds so applied shall be replaced by
the Servicer by deposit in the Certificate Account no later than the close of
business on the next Servicer Advance Date. The Servicer shall be entitled to
be reimbursed from the Certificate Account for all Advances of its own funds
made pursuant to this Section 4.01 as provided in Section 3.09. The obligation
to make Advances with respect to any Mortgage Loan shall continue if such
Mortgage Loan has been foreclosed or otherwise terminated and the Mortgaged
Property has not been liquidated. The Servicer shall inform the Trustee of the
amount of the Advance to be made on each Servicer Advance Date no later than
the second Business Day before the related Distribution Date.
(b) If the Servicer determines that it will be unable to comply with
its obligation to make the Advances as and when described in the second
sentence of Section 4.01(a), it shall use its best efforts to give written
notice thereof to the Trustee (each such notice an "Advance Notice"; and such
notice may be given by telecopy), not later than 3:00 P.M., New York time, on
the Business Day immediately preceding the related Servicer Advance Date,
specifying the amount that it will be unable to deposit (each such amount an
"Advance Deficiency") and certifying that such Advance Deficiency constitutes
an Advance hereunder and is not a Nonrecoverable Advance. If the Trustee
receives a Trustee Advance Notice on or before 3:00 P.M., New York time on a
Servicer Advance Date, the Trustee is entitled to immediately terminate the
Servicer under Section 7.01, and shall, not later than 3:00 P.M., New York
time, on the related Distribution Date, deposit in the Distribution Account an
amount equal to the Advance Deficiency identified in such Trustee Advance
Notice unless it is prohibited from so doing by applicable law.
Notwithstanding the foregoing, the Trustee shall not be required to make such
deposit if the Trustee shall have received written notification from the
Servicer that the Servicer has deposited or caused to be deposited in the
Certificate Account an amount equal to such Advance Deficiency by 3:00 P.M.
New York time on the related Distribution Date. If the Trustee has not
terminated the Servicer, the Servicer shall reimburse the Trustee for the
amount of any Advance (including interest at the Prime Rate on the day of such
reimbursement published in The Wall Street Journal) on such amount, made by
the Trustee pursuant to this Section 4.01(b) not later than the second day
following the related Servicer Advance Date. In the event that the Servicer
does not reimburse the Trustee in accordance with the requirements of the
preceding sentence, the Trustee shall immediately (a) terminate all of the
rights and obligations of the Servicer under this Agreement in accordance with
Section 7.01 and (b) subject to the limitations set forth in Section 3.05,
assume all of the rights and obligations of the Servicer hereunder.
(c) The Servicer shall, not later than the close of business on the
Business Day immediately preceding each Servicer Advance Date, deliver to the
Trustee a report (in form and substance reasonably satisfactory to the
Trustee) that indicates (i) the Mortgage Loans with respect to which the
Servicer has determined that the related Scheduled Payments should be advanced
and (ii) the amount of the related Scheduled Payments. The Servicer shall
deliver to the Trustee on the related Servicer Advance Date an Officer's
Certificate of a Servicing Officer indicating the amount of any proposed
Advance determined by the Servicer to be a Nonrecoverable Advance.
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Section 4.02 Priorities of Distribution.
(a) (1) On each Distribution Date, the Trustee shall withdraw the
Available Funds for Loan Group 1 from the Distribution Account and apply such
funds to distributions on the Group 1 Senior Certificates in the following
order and, in each case, to the extent of Available Funds remaining:
(i) concurrently, to each interest-bearing Class of Group 1
Senior Certificates, an amount allocable to interest equal to the
related Class Optimal Interest Distribution Amount, any shortfall
being allocated among such Classes in proportion to the amount of
the Class Optimal Interest Distribution Amount that would have been
distributed in the absence of such shortfall;
(ii) [reserved];
(iii) concurrently, to each Class of Group 1 Senior
Certificates as follows:
(A) [reserved]; and
(B) on each Distribution Date, the Principal Amount for
Loan Group 1, up to the amount of the related Senior
Principal Distribution Amount for such Distribution
Date will be distributed in the following priority:
(a) to the Class A-R Certificates, until its
Class Certificate Balance is reduced to
zero; and
(b) concurrently, to the Class 1-A-1
Certificates and the Class C-M-1
Component, pro rata, until the
Class Certificate Balance and
Component Balance thereof are
reduced to zero;
(iv) [reserved];
(2) On each Distribution Date, the Trustee shall withdraw the
Available Funds for Loan Group 2 from the Distribution Account and apply such
funds to distributions on the Group 2 Senior Certificates in the following
order and, in each case, to the extent of Available Funds remaining:
(i) concurrently, to each interest-bearing Class of Group 2
Senior Certificates, an amount allocable to interest equal to the
related Class Optimal Interest Distribution Amount, any shortfall
being allocated among such Classes in proportion to the amount of
the Class Optimal Interest Distribution Amount that would have been
distributed in the absence of such shortfall;
(ii) [reserved];
(iii) concurrently, to each Class of Group 2 Senior
Certificates as follows:
(A) [reserved];
(B) on each Distribution Date, the Principal Amount for
Loan Group 2, up to the amount of the related Senior
Principal Distribution Amount for such Distribution
Date will be distributed, concurrently, to the Class
2-A-1 Certificates and Class C-M-2 Component, pro
rata, until the Class Certificate Balance and
Component Balance thereof are reduced to zero;
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(3) On each Distribution Date, after making the distributions
described in Section 4.02(a)(1) and Section 4.02(a)(2), Available Funds from
each Loan Group remaining will be distributed to the Senior Certificates to
the extent provided in Section 4.03;
(4) On each Distribution Date, Available Funds from each Loan Group
remaining after making the distributions described in Section 4.02(a)(1),
Section 4.02(a)(2) and Section 4.02(a)(3) will be distributed to the
Subordinated Certificates, subject to paragraph 4.02(e) below, in the
following order of priority:
(A) to the Class B-1 Certificates, an amount allocable to
interest equal to the Class Optimal Interest
Distribution Amount for such Class for such
Distribution Date;
(B) to the Class B-1 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such
Distribution Date until the Class Certificate Balance
thereof is reduced to zero;
(C) to the Class B-2 Certificates, an amount allocable to
interest equal to the Class Optimal Interest
Distribution Amount for such Class for such
Distribution Date;
(D) to the Class B-2 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such
Distribution Date until the Class Certificate Balance
thereof is reduced to zero;
(E) to the Class B-3 Certificates, an amount allocable to
interest equal to the Class Optimal Interest
Distribution Amount for such Class for such
Distribution Date;
(F) to the Class B-3 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such
Distribution Date until the Class Certificate Balance
thereof is reduced to zero;
(G) to the Class B-4 Certificates, an amount allocable to
interest equal to the Class Optimal Interest
Distribution Amount for such Class for such
Distribution Date;
(H) to the Class B-4 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such
Distribution Date until the Class Certificate Balance
thereof is reduced to zero;
(I) to the Class B-5 Certificates, an amount allocable to
interest equal to the Class Optimal Interest
Distribution Amount for such Class for such
Distribution Date;
(J) to the Class B-5 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such
Distribution Date until the Class Certificate Balance
thereof is reduced to zero;
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(K) to the Class B-6 Certificates, an amount allocable to
interest equal to the Class Optimal Interest
Distribution Amount for such Class for such
Distribution Date; and
(L) to the Class B-6 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such
Distribution Date until the Class Certificate Balance
thereof is reduced to zero;
(5) [reserved]; and
(6) to the Class A-R Certificates, any remaining funds; provided,
that such amounts shall not include the $100 held in trust for the Class P
Certificates.
On each Distribution Date, all amounts representing Prepayment
Charges received during the related Prepayment Period (and amounts paid by the
Servicer for waiving them) will be distributed to the holders of the Class P
Certificates. On the Distribution Date immediately following the expiration of
the latest Prepayment Charge Period of the Mortgage Loans, the $100 held in
trust for the Class P Certificates will be distributed to the Class P
Certificates. On each Distribution Date, all amounts representing Late Payment
Fees assessable during the related Prepayment Period (and amounts paid by the
Servicer for waiving them less any such amounts not deposited into the
Distribution Account by the preceding Distribution Account Deposit date plus
any such amounts deposited into the Distribution Account with respect to prior
Prepayment Periods) will be distributed to the Holders of the Class L
Certificates.
(b) [reserved].
(c) [reserved].
(d) On each Distribution Date, the amount referred to in clause (i)
of the definition of Class Optimal Interest Distribution Amount for each Class
of Certificates for such Distribution Date shall be reduced by (i) the related
Class' pro rata share of Net Prepayment Interest Shortfalls based on (x) with
respect to a Class of Senior Certificates, the related Class Optimal Interest
Distribution Amount and (y) with respect to a Class of Subordinated
Certificates on and prior to a Senior Termination Date, the related Assumed
Interest Amount for such Distribution Date or after a Senior Termination Date,
the Class Optimal Interest Distribution Amount for such Distribution Date, in
each case in the absence of such Net Prepayment Interest Shortfalls and (ii)
the related Class' Allocable Share of (A) after the Special Hazard Coverage
Termination Date, with respect to each Mortgage Loan in the related Loan Group
(or, after the Senior Credit Support Depletion Date, any Mortgage Loan) that
became a Special Hazard Mortgage Loan during the calendar month preceding the
month of such Distribution Date, the excess of one month's interest at the
Adjusted Net Mortgage Rate on the Stated Principal Balance of such Mortgage
Loan as of the Due Date in such month over the amount of Liquidation Proceeds
applied as interest on such Mortgage Loan with respect to such month, (B)
after the Bankruptcy Coverage Termination Date, with respect to each Mortgage
Loan that became subject to a Bankruptcy Loss during the calendar month
preceding the month of such Distribution Date, the interest portion of the
related Debt Service Reduction or Deficient Valuation, (C) each Relief Act
Reduction for the Mortgage Loans in the related Loan Group (or, after the
Senior Credit Support Depletion Date, any Mortgage Loan) incurred during the
calendar month preceding the month of such Distribution Date and (D) after the
Fraud Loss Coverage Termination Date, with respect to each Mortgage Loan in
the related Loan Group (or, after the Senior Credit Support Depletion Date,
any Mortgage Loan) that became a Fraud Loan during the calendar month
preceding the month of such Distribution Date, the excess of one month's
interest at the related Adjusted Net Mortgage Rate on the Stated Principal
Balance of such Mortgage Loan as of the Due Date in such month over the amount
of Liquidation Proceeds applied as interest on such Mortgage Loan with respect
to such month.
(e) Notwithstanding the priority and allocation contained in Section
4.02(a)(5), if, with respect to any Class of Subordinated Certificates, on any
Distribution Date the sum of the related Class
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Subordination Percentages of such Class and of all Classes of Subordinated
Certificates that have a higher numerical Class designation than such Class
(the "Applicable Credit Support Percentage") is less than the Original
Applicable Credit Support Percentage for such Class, no distribution of
Principal Prepayments on the Mortgage Loans will be made to any such Classes
(the "Restricted Classes") and the amount of such Principal Prepayments
otherwise distributable to the Restricted Classes shall be distributed to the
Classes of Subordinated Certificates having lower numerical Class designations
than such Class, pro rata, based on their respective Class Certificate
Balances immediately prior to such Distribution Date and shall be distributed
in the sequential order set forth in Section 4.02(a)(5). Notwithstanding the
foregoing, the Class of Subordinated Certificates then outstanding with the
lowest numerical class designation shall not be a Restricted Class.
(f) If the amount of a Realized Loss on a Mortgage Loan in a Loan
Group has been reduced by application of Subsequent Recoveries with respect to
such Mortgage Loan, the amount of such Subsequent Recoveries will be applied
sequentially, in the order of payment priority, to increase the Class
Certificate Balance of each related Class of Certificates to which Realized
Losses have been allocated, but in each case by not more than the amount of
Realized Losses previously allocated to that Class of Certificates pursuant to
Section 4.05. Holders of such Certificates will not be entitled to any payment
in respect of the Class Optimal Interest Distribution Amount on the amount of
such increases for any Interest Accrual Period preceding the Distribution Date
on which such increase occurs. Any such increases shall be applied to the
Certificate Balance of each Certificate of such Class in accordance with its
respective Percentage Interest.
Section 4.03 Cross-Collateralization; Adjustments to Available Funds
(a) [Reserved].
(b) If on any Distribution Date the aggregate Class Certificate
Balance and Component Balance of the Classes and Component of Senior
Certificates related to a Loan Group is greater than the aggregate Stated
Principal Balance of the Mortgage Loans in such Loan Group (an
"Undercollateralized Group"), then the Trustee shall reduce the Available
Funds of the other Loan Group that is not undercollateralized (each, an
"Overcollateralized Group"), as follows:
(i) to add to the Available Funds of the Undercollateralized
Group an amount equal to the lesser of (a) one month's interest on
the Transfer Payment Received of the Undercollateralized Group at
the Weighted Average Adjusted Net Mortgage Rate applicable to the
Undercollateralized Group and (b) Available Funds of the
Overcollateralized Group remaining after making distributions to the
Certificates of the Overcollateralized Group on such Distribution
Date pursuant to Section 4.02; and
(ii) to the Senior Certificates of the Undercollateralized
Group, to the extent of the principal portion of Available Funds of
the Overcollateralized Group remaining after making distributions to
the Senior Certificates of the Overcollateralized Group on such
Distribution Date pursuant to Section 4.02, until the Class
Certificate Balances and Component Balance of the Classes and
Component of Senior Certificates of such Undercollateralized Group
equals the aggregate Stated Principal Balance of the Mortgage Loans
in the related Loan Group.
The portion of the payment received by the Undercollateralized
Group allocable to principal is referred to as a "Transfer Payment Received."
The portion of the payment made by the Overcollateralized Group allocable to
principal is referred to as a "Transfer Payment Made."
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Section 4.04 [Reserved].
Section 4.05 Allocation of Realized Losses.
(a) On or prior to each Determination Date, the Trustee shall
determine the total amount of Realized Losses, including Excess Losses, with
respect to each related Distribution Date.
Realized Losses with respect to any Distribution Date shall be
allocated as follows:
(i) [reserved]; and
(A) any Realized Loss (other than any Excess Loss) on the
Mortgage Loans in a Loan Group shall be allocated first to the
Subordinated Certificates in reverse order of their respective
numerical Class designations (beginning with the Class of
Subordinated Certificates then outstanding with the highest numerical
Class designation) until the respective Class Certificate Balance of
each such Class is reduced to zero, and second to the Classes and
Component of Senior Certificates of the related Senior Certificate
Group as follows: (1) any Realized Losses, other than Excess Losses,
on the Group 1 Mortgage Loans will be allocated, sequentially, to the
Class C-M-1 Component and Class 1-A-1 Certificates, in that order,
until the Component Balance and Class Certificate Balance thereof are
reduced to zero; and (2) any Realized Losses, other than Excess
Losses, on the Group 2 Mortgage Loans will be allocated sequentially,
to the Class C-M-2 Component and Class 2-A-1 Certificates, in that
order, until the Component Balance and Class Certificate Balance
thereof are reduced to zero; and
(B) On each Distribution Date, Excess Losses on the Mortgage
Loans in a Loan Group shall be allocated pro rata among the Classes
and Component of Senior Certificates of the related Senior
Certificate Group and the Subordinated Certificates as follows: (i)
in the case of the Senior Certificates, the Senior Percentage of such
Excess Losses shall be allocated among the Classes and Componet of
Senior Certificates in the related Senior Certificate Group, pro
rata, on the basis of their respective Class Certificate Balances and
Component Balance immediately prior to the related Distribution Date
and (ii) in the case of the Subordinated Certificates, the
Subordinated Percentage of such Excess Loss shall be allocated among
the Classes of Subordinated Certificates, pro rata, based on each
Class' share of the Assumed Balance of the related Loan Group
immediately prior to the related Distribution Date; provided,
however, on any Distribution Date after a Senior Termination Date for
a Senior Certificate Group, such Excess Losses on the Mortgage Loans
in the related Loan Group shall be allocated to the Senior
Certificates and the Subordinated Certificates on the basis of their
respective Class Certificate Balances or Component Balance, as
applicable, immediately prior to such Distribution Date; provided
further, however, on any Distribution Date on and after the Senior
Credit Support Depletion Date, any Excess Loss shall be allocated,
pro rata, among the Classes and Component of Senior Certificates
based on their respective Class Certificate Balances and Component
Balance immediately prior to the related Distribution Date.
(b) The Class Certificate Balance of the Class of Subordinated
Certificates then outstanding with the highest numerical Class designation
shall be reduced on each Distribution Date by the amount, if any, by which the
aggregate Class Certificate Balance of all outstanding Classes of Certificates
(after giving effect to the distribution of principal and the allocation of
Realized Losses on such Distribution Date) exceeds the aggregate Stated
Principal Balance of the Mortgage Loans as of the Due Date in the month of
such Distribution Date (after giving effect to Principal Prepayments in the
Prepayment Period related to such Due Date).
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(c) Any Realized Loss allocated to a Class of Certificates or any
reduction in the Class Certificate Balance of a Class of Certificates pursuant
to Section 4.05(a) or (b) shall be allocated among the Certificates of such
Class in proportion to their respective Certificate Balances.
(d) Any allocation of Realized Losses to a Certificate or any
reduction in the Certificate Balance of a Certificate pursuant to Section
4.05(a) or (b) shall be accomplished by reducing the Certificate Balance
thereof immediately following the distributions made on the related
Distribution Date in accordance with the definition of Certificate Balance.
Section 4.06 Monthly Statements to Certificateholders.
Not later than each Distribution Date, the Trustee shall prepare and
make available on its website at ▇▇▇▇▇://▇▇▇.▇▇▇.▇▇.▇▇▇/▇▇▇▇ to each
Certificateholder, the Servicer and the Depositor a statement for the related
distribution of:
(i) the applicable Record Dates, Interest Accrual Periods and
Determination Dates for calculating distributions for the
Distribution Date;
(ii) the amount of funds received from the Servicer for the
Distribution Date separately identifying amounts received in respect
of the Mortgage Loans and the amount of Advances included in the
distribution on the Distribution Date;
(iii) the Servicing Fee and the amounts of any additional
servicing compensation received by the Servicer attributable to
penalties, fees, Excess Proceeds or other similar charges or fees
and items with respect to the Distribution Date;
(iv) the Trustee Fee for the Distribution Date;
(v) the aggregate amount of expenses paid from amounts on
deposit in the Distribution Account;
(vi) the aggregate amount on deposit in the Distribution
Account, as of the beginning and end of the related Due Period;
(vii) the amount of the distribution allocable to principal,
separately identifying the aggregate amount of any Principal
Prepayments and Liquidation Proceeds included therein;
(viii) the amount of the distribution allocable to interest,
any Class Unpaid Interest Amounts included in the distribution and
any remaining Class Unpaid Interest Amounts after giving effect to
the distribution;
(ix) if the distribution to the Holders of any Class of
Certificates is less than the full amount that would be
distributable to them if sufficient funds were available, the amount
of the shortfall and the allocation of the shortfall between
principal and interest;
(x) the aggregate amount of Realized Losses in each Loan Group
and in the aggregate incurred and Subsequent Recoveries, if any,
received during the preceding calendar month and aggregate Realized
Losses through the Distribution Date;
(xi) the Class Certificate Balance or Notional Amount of each
Class of Certificates before and after giving effect to the
distribution of principal on the Distribution Date;
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(xii) the Pass-Through Rate for each Class of Certificates with
respect to the Distribution Date;
(xiii) the number of Mortgage Loans in each Loan Group and in
the aggregate and the aggregate Stated Principal Balance of the
Mortgage Loans in each Loan Group and the Pool Stated Principal
Balance as the first day of the related Due Period and the last day
of the related Due Period;
(xiv) as of the last day of the related Due Period:
(A) the weighted average mortgage rate of the Mortgage
Loans in each Loan Group and in the aggregate, and
(B) the weighted average remaining term to maturity of
the Mortgage Loans in each Loan Group and in the
aggregate;
(xv) the number and aggregate outstanding Stated Principal
Balance of the Mortgage Loans in each Loan Group and in the
aggregate as of the end of the preceding calendar month:
(A) delinquent (exclusive of Mortgage Loans in
foreclosure) (1) 30 to 59 days, (2) 60 to 89 days and
(3) 90 or more days and
(B) in foreclosure and delinquent (1) 30 to 59 days, (2)
60 to 89 days and (3) 90 or more days,
in each case as of the close of business on the last day of the
calendar month preceding the Distribution Date;
(xvi) for each of the preceding 12 calendar months, or all
calendar months since the Cut-off Date, whichever is less, the
aggregate dollar amount of the Scheduled Payments (A) due on all
Outstanding Mortgage Loans on the Due Date in each such month and
(B) delinquent sixty (60) days or more on the Due Date in each such
month;
(xvii) with respect to any Mortgage Loan that became an REO
Property during the preceding calendar month, the loan number and
Stated Principal Balance of the Mortgage Loan as of the close of
business on the Determination Date preceding the Distribution Date;
(xviii) the total number and principal balance of any REO
Properties in each Loan Group and in the aggregate (and market
value, if available) as of the close of business on the
Determination Date preceding the Distribution Date;
(xix) the aggregate amount of Principal Prepayments received
during the related Prepayment Period and the number of Mortgage
Loans subject to such Principal Prepayments;
(xx) the amount of Advances included in the distribution on the
Distribution Date and the aggregate amount of Advances outstanding
as of the close of business on the Determination Date;
(xxi) the aggregate amount of Advances reimbursed during the
related Due Period, the general source of funds for such
reimbursements and the aggregate amount of Advances outstanding as
of the close of business on the Determination Date;
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(xxii) the aggregate amount of Servicing Advances reimbursed
during the related Due Period, the general source of funds for such
reimbursements and the aggregate amount of Servicing Advances
outstanding as of the close of business on the Determination Date;
(xxiii) the aggregate number and outstanding Stated Principal
Balance of Mortgage Loans in each Loan Group and in the aggregate
repurchased during the related Due Period due to material breaches
of representations and warranties regarding such Mortgage Loans;
(xxiv) each Senior Prepayment Percentage and Subordinated
Prepayment Percentage for the Distribution Date;
(xxv) each Senior Percentage and Subordinated Percentage for
the Distribution Date;
(xxvi) the Special Hazard Loss Coverage Amount, the Fraud Loss
Coverage Amount and the Bankruptcy Loss Coverage Amount, in each
case as of the related Determination Date;
(xxvii) Hard Prepayment Charges and Soft Prepayment Charges
collected, waived, and paid by the Servicer;
(xxviii) Late Payment Fees collected or waived by the Servicer;
(xxix) the aggregate Stated Principal Balance of the Mortgage
Loans in each Loan Group and in the aggregate that became Liquidated
Mortgage Loans in the prior month and since the Cut-off Date (in
each case immediately prior to the Stated Principal Balance being
reduced to zero);
(xxx) the Stated Principal Balance of any Mortgage Loan that
has been repurchased by the Servicer in accordance with Section
2.02, 2.03 or 3.12; and
(xxxi) the Stated Principal Balance of any Substitute Mortgage
Loan provided by the Seller and the Stated Principal Balance of any
Mortgage Loan that has been replaced by a Substitute Mortgage Loan
in accordance with Section 2.03.
The Trustee's responsibility for disbursing the above information to
the Certificateholders is limited to the availability, timeliness and accuracy
of the information derived from the Servicer.
By each Determination Date the Servicer shall provide to the Trustee
in electronic form the information needed to determine the distributions to be
made pursuant to Section 4.02 and any other information on which the Servicer
and the Trustee mutually agree.
On or before the fifth Business Day following the end of each
Prepayment Period (but in no event later than the third Business Day prior to
the related Distribution Date), the Servicer shall deliver to the Trustee
(which delivery may be by electronic data transmission) a report in
substantially the form set forth as Schedule V.
Within a reasonable period of time after the end of each calendar
year, the Trustee shall cause to be furnished to each Person who at any time
during the calendar year was a Certificateholder, a statement containing the
information set forth in clauses (vii) and (viii) of this Section 4.06
aggregated for such calendar year or applicable portion thereof during which
such Person was a Certificateholder. Such obligation of the Trustee shall be
deemed to have been satisfied to the extent that substantially
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comparable information shall be provided by the Trustee pursuant to any
requirements of the Code as from time to time in effect.
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ARTICLE FIVE
THE CERTIFICATES
Section 5.01 The Certificates.
The Certificates shall be substantially in the forms attached hereto
as exhibits. The Certificates shall be issuable in registered form, in the
minimum denominations, integral multiples of $1,000 in excess thereof (except
that one Certificate in each Class may be issued in a different amount which
must exceed the applicable minimum denomination) and aggregate denominations
per Class set forth in the Preliminary Statement.
Subject to Section 9.02 respecting the final distribution on the
Certificates, on each Distribution Date the Trustee shall make distributions
to each Certificateholder of record on the preceding Record Date either (x) by
wire transfer in immediately available funds to the account of such holder at
a bank or other entity having appropriate facilities therefor, if such Holder
has so notified the Trustee at least five Business Days before the related
Record Date or (y) by check mailed by first class mail to such
Certificateholder at the address of such holder appearing in the Certificate
Register.
The Trustee shall execute the Certificates by the manual or facsimile
signature of an authorized officer. Certificates bearing the manual or
facsimile signatures of individuals who were, at the time such signatures were
affixed, authorized to sign on behalf of the Trustee shall bind the Trustee,
notwithstanding that such individuals or any of them have ceased to be so
authorized before the countersignature and delivery of any such Certificates
or did not hold such offices at the date of such Certificate. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, unless countersigned by the Trustee by manual signature, and such
countersignature upon any Certificate shall be conclusive evidence, and the
only evidence, that such Certificate has been duly executed and delivered
hereunder. All Certificates shall be dated the date of their countersignature.
On the Closing Date, the Trustee shall countersign the Certificates to be
issued at the direction of the Depositor, or any affiliate thereof.
The Depositor shall provide the Trustee, on a continuous basis with
an adequate inventory of Certificates to facilitate transfers.
Section 5.02 Certificate Register; Registration of Transfer and
Exchange of Certificates.
(a) The Trustee shall maintain, in accordance with Section 5.06, a
Certificate Register for the Trust Fund in which, subject to subsections (b)
and (c) below and to such reasonable regulations as it may prescribe, the
Trustee shall provide for the registration of Certificates and of transfers
and exchanges of Certificates as herein provided. Upon surrender for
registration of transfer of any Certificate, the Trustee shall execute and
deliver, in the name of the designated transferee or transferees, one or more
new Certificates of the same Class and aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged
for other Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest upon surrender of the
Certificates to be exchanged at the office or agency of the Trustee. Whenever
any Certificates are so surrendered for exchange, the Trustee shall execute,
authenticate, and deliver the Certificates that the Certificateholder making
the exchange is entitled to receive. A written instrument of transfer in form
satisfactory to the Trustee duly executed by the holder of a Certificate or
his attorney duly authorized in writing shall accompany every Certificate
presented or surrendered for registration of transfer or exchange.
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No service charge to the Certificateholders shall be made for any
registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required.
All Certificates surrendered for registration of transfer or exchange
shall be cancelled and subsequently destroyed by the Trustee in accordance
with the Trustee's customary procedures.
(b) No transfer of a Private Certificate shall be made unless such
transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under the Securities Act and such state securities
laws. If a transfer is to be made in reliance on an exemption from the
Securities Act and such state securities laws, to assure compliance with the
Securities Act and such state securities laws, the Certificateholder desiring
to effect such transfer and such Certificateholder's prospective transferee
shall each certify to the Trustee in writing the facts surrounding the
transfer in substantially the form set forth in Exhibit J (the "Transferor
Certificate") and deliver to the Trustee either (i) a letter in substantially
the form of either Exhibit K (the "Investment Letter") or Exhibit L (the "Rule
144A Letter") or (ii) at the expense of the transferor, an Opinion of Counsel
that the transfer may be made without registration under the Securities Act.
The Depositor shall provide to any Holder of a Private Certificate and any
prospective transferee designated by that Holder, information regarding the
related Certificates and the Mortgage Loans and any other information
necessary to satisfy the condition to eligibility in Rule 144A(d)(4) for
transfer of the Certificate without registration thereof under the Securities
Act pursuant to the registration exemption provided by Rule 144A. The Trustee
and the Servicer shall cooperate with the Depositor in providing the Rule 144A
information referenced in the preceding sentence, including providing to the
Depositor such information regarding the Certificates, the Mortgage Loans, and
other matters regarding the Trust Fund as the Depositor reasonably requests to
meet its obligation under the preceding sentence. Each Holder of a Private
Certificate desiring to effect a transfer shall, and does hereby agree to,
indemnify the Trustee, the Depositor, the Seller, and the Servicer against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No transfer of an ERISA-Restricted Certificate shall be made unless
the Trustee shall have received either (i) a representation from the
transferee of such Certificate acceptable to and in form and substance
satisfactory to the Trustee (if the Certificate is a Private Certificate, the
requirement is satisfied only by the Trustee's receipt of a representation
letter from the transferee substantially in the form of Exhibit K or Exhibit
L, and if the Certificate is a Residual Certificate, the requirement is
satisfied only by the Trustee's receipt of a representation letter from the
transferee substantially in the form of Exhibit I), to the effect that (x) the
transferee is not an employee benefit plan or arrangement subject to section
406 of ERISA or a plan subject to section 4975 of the Code, or a person acting
on behalf of any such plan or arrangement or using the assets of any such plan
or arrangement to effect the transfer, or (y) if the ERISA-Restricted
Certificate has been the subject of an ERISA-Qualifying Underwriting, a
representation that the transferee is an insurance company that is purchasing
such Certificate with funds contained in an "insurance company general
account" (as such term is defined in Section V(e) of Prohibited Transaction
Class Exemption 95-60 ("PTCE 95-60") and that the purchase and holding of such
Certificate satisfies the requirements for exemptive relief under Sections I
and III of PTCE 95-60, or (ii) in the case of any ERISA-Restricted Certificate
presented for registration in the name of an employee benefit plan subject to
ERISA, or a plan or arrangement subject to section 4975 of the Code (or
comparable provisions of any subsequent enactments), or a trustee of any such
plan or any other person acting on behalf of any such plan or arrangement or
using such plan's or arrangement's assets, an Opinion of Counsel satisfactory
to the Trustee, which Opinion of Counsel shall not be an expense of the
Trustee, the Servicer or the Trust Fund, addressed to the Trustee and the
Servicer, to the effect that the purchase and holding of such ERISA-Restricted
Certificate will not result in a non-exempt prohibited transaction under ERISA
or section 4975 of the Code and will not subject the Trustee or the Servicer
to any
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obligation in addition to those expressly undertaken in this Agreement or to
any liability. For purposes of the preceding sentence, with respect to an
ERISA-Restricted Certificate that is not a Residual Certificate, if the
appropriate representation letter or Opinion of Counsel referred to in the
preceding sentence is not furnished, the representation in clause (i) above,
shall be deemed to have been made to the Trustee by the transferee's
(including an initial acquirer's) acceptance of the ERISA-Restricted
Certificates. If the representation is violated, or any attempt is made to
transfer to a plan or arrangement subject to section 406 of ERISA or a plan
subject to section 4975 of the Code, or a person acting on behalf of any such
plan or arrangement or using the assets of any such plan or arrangement,
without the Opinion of Counsel described above, the attempted transfer or
acquisition shall be void.
To the extent permitted under applicable law (including ERISA), the
Trustee shall be under no liability to any Person for any registration of
transfer of any ERISA-Restricted Certificate that is in fact not permitted by
this Section 5.02(b) or for making any payments due on such Certificate to the
Holder thereof or taking any other action with respect to such Holder under
this Agreement so long as the transfer was registered by the Trustee in
accordance with the foregoing requirements.
(c) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in
a Residual Certificate shall be a Permitted Transferee and shall
promptly notify the Trustee of any change or impending change in its
status as a Permitted Transferee.
(ii) No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and the
Trustee shall not register the Transfer of any Residual Certificate
unless, in addition to the certificates required to be delivered to
the Trustee under subparagraph (b) above, the Trustee shall have
been furnished with an affidavit (a "Transfer Affidavit") of the
initial owner or the proposed transferee in the form of Exhibit I.
(iii) Each Person holding or acquiring any Ownership Interest
in a Residual Certificate shall agree (A) to obtain a Transfer
Affidavit from any other Person to whom such Person attempts to
Transfer its Ownership Interest in a Residual Certificate, (B) to
obtain a Transfer Affidavit from any Person for whom such Person is
acting as nominee, trustee or agent in connection with any Transfer
of a Residual Certificate and (C) not to Transfer its Ownership
Interest in a Residual Certificate or to cause the Transfer of an
Ownership Interest in a Residual Certificate to any other Person if
it has actual knowledge that such Person is not a Permitted
Transferee.
(iv) Any attempted or purported Transfer of any Ownership
Interest in a Residual Certificate in violation of this Section
5.02(c) shall be absolutely null and void and shall vest no rights
in the purported Transferee. If any purported transferee shall
become a Holder of a Residual Certificate in violation of this
Section 5.02(c), then the last preceding Permitted Transferee shall
be restored to all rights as Holder thereof retroactive to the date
of registration of Transfer of such Residual Certificate. The
Trustee shall be under no liability to any Person for any
registration of Transfer of a Residual Certificate that is in fact
not permitted by Section 5.02(b) and this Section 5.02(c) or for
making any payments due on such Certificate to the Holder thereof or
taking any other action with respect to such Holder under this
Agreement so long as the Transfer was registered after receipt of
the related Transfer Affidavit, Transferor Certificate and either
the Rule 144A Letter or the Investment Letter. The Trustee shall be
entitled but not
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obligated to recover from any Holder of a Residual Certificate that
was in fact not a Permitted Transferee at the time it became a
Holder or, at such subsequent time as it became other than a
Permitted Transferee, all payments made on such Residual Certificate
at and after either such time. Any such payments so recovered by the
Trustee shall be paid and delivered by the Trustee to the last
preceding Permitted Transferee of such Certificate.
(v) The Depositor shall use its best efforts to make available,
upon receipt of written request from the Trustee, all information
necessary to compute any tax imposed under section 860E(e) of the
Code as a result of a Transfer of an Ownership Interest in a
Residual Certificate to any Holder who is not a Permitted
Transferee.
The restrictions on Transfers of a Residual Certificate set forth in
this Section 5.02(c) shall cease to apply (and the applicable portions of the
legend on a Residual Certificate may be deleted) with respect to Transfers
occurring after delivery to the Trustee of an Opinion of Counsel, which
Opinion of Counsel shall not be an expense of the Trust Fund, the Trustee, the
Seller or the Servicer, to the effect that the elimination of such
restrictions will not cause any REMIC created under this Agreement to fail to
qualify as a REMIC at any time that the Certificates are outstanding or result
in the imposition of any tax on the Trust Fund, a Certificateholder or another
Person. Each Person holding or acquiring any Ownership Interest in a Residual
Certificate hereby consents to any amendment of this Agreement which, based on
an Opinion of Counsel furnished to the Trustee, is reasonably necessary (a) to
ensure that the record ownership of, or any beneficial interest in, a Residual
Certificate is not transferred, directly or indirectly, to a Person that is
not a Permitted Transferee and (b) to provide for a means to compel the
Transfer of a Residual Certificate which is held by a Person that is not a
Permitted Transferee to a Holder that is a Permitted Transferee.
(d) The preparation and delivery of all certificates and opinions
referred to above in this Section 5.02 in connection with transfer shall be at
the expense of the parties to such transfers.
(e) Except as provided below, the Book-Entry Certificates shall at
all times remain registered in the name of the Depository or its nominee and
at all times: (i) registration of the Certificates may not be transferred by
the Trustee except to another Depository; (ii) the Depository shall maintain
book-entry records with respect to the Certificate Owners and with respect to
ownership and transfers of such Book-Entry Certificates; (iii) ownership and
transfers of registration of the Book-Entry Certificates on the books of the
Depository shall be governed by applicable rules established by the
Depository; (iv) the Depository may collect its usual and customary fees,
charges and expenses from its Depository Participants; (v) the Trustee shall
deal with the Depository, Depository Participants and Indirect Participants as
representatives of the Certificate Owners of the Book-Entry Certificates for
purposes of exercising the rights of holders under this Agreement, and
requests and directions for and votes of such representatives shall not be
deemed to be inconsistent if they are made with respect to different
Certificate Owners; and (vi) the Trustee may rely and shall be fully protected
in relying upon information furnished by the Depository with respect to its
Depository Participants and furnished by the Depository Participants with
respect to Indirect Participants and persons shown on the books of such
Indirect Participants as direct or indirect Certificate Owners.
All transfers by Certificate Owners of Book-Entry Certificates shall
be made in accordance with the procedures established by the Depository
Participant or brokerage firm representing the Certificate Owner. Each
Depository Participant shall only transfer Book-Entry Certificates of
Certificate Owners it represents or of brokerage firms for which it acts as
agent in accordance with the Depository's normal procedures.
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If (x) (i) the Depository or the Depositor advises the Trustee in
writing that the Depository is no longer willing or able to properly discharge
its responsibilities as Depository, and (ii) the Trustee or the Depositor is
unable to locate a qualified successor or (y) after the occurrence of an Event
of Default, Certificate Owners representing at least 51% of the Certificate
Balance of the Book-Entry Certificates together advise the Trustee and the
Depository through the Depository Participants in writing that the
continuation of a book-entry system through the Depository is no longer in the
best interests of the Certificate Owners, the Trustee shall notify all
Certificate Owners, through the Depository, of the occurrence of any such
event and of the availability of definitive, fully-registered Certificates
(the "Definitive Certificates") to Certificate Owners requesting the same.
Upon surrender to the Trustee of the related Class of Certificates by the
Depository, accompanied by the instructions from the Depository for
registration, the Trustee shall issue the Definitive Certificates. Neither the
Servicer, the Depositor nor the Trustee shall be liable for any delay in
delivery of such instruction and each may conclusively rely on, and shall be
protected in relying on, such instructions. The Servicer shall provide the
Trustee with an adequate inventory of certificates to facilitate the issuance
and transfer of Definitive Certificates. Upon the issuance of Definitive
Certificates all references herein to obligations imposed upon or to be
performed by the Depository shall be deemed to be imposed upon and performed
by the Trustee, to the extent applicable with respect to such Definitive
Certificates and the Trustee shall recognize the Holders of the Definitive
Certificates as Certificateholders hereunder; provided that the Trustee shall
not by virtue of its assumption of such obligations become liable to any party
for any act or failure to act of the Depository.
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificate is surrendered to the Trustee, or
(b) the Trustee receives evidence to its satisfaction of the destruction,
loss, or theft of any Certificate and the Servicer and the Trustee receive the
security or indemnity required by them to hold each of them harmless, then, in
the absence of notice to the Trustee that the Certificate has been acquired by
a Protected Purchaser, and if the requirements of Section 8-406 of the UCC are
met and subject to Section 8-405 of the UCC, the Trustee shall execute,
countersign, and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost, or stolen Certificate, a new Certificate of like Class,
tenor, and Percentage Interest. In connection with the issuance of any new
Certificate under this Section 5.03, the Trustee may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith. Any replacement Certificate
issued pursuant to this Section 5.03 shall constitute complete and
indefeasible evidence of ownership, as if originally issued, whether or not
the lost, stolen, or destroyed Certificate is found at any time.
Section 5.04 Persons Deemed Owners.
The Servicer, the Trustee, and any agent of the Servicer or the
Trustee may treat the Person in whose name any Certificate is registered as
the owner of such Certificate for the purpose of receiving distributions as
provided in this Agreement and for all other purposes whatsoever, and neither
the Servicer, the Trustee nor any agent of the Servicer or the Trustee shall
be affected by any notice to the contrary.
Section 5.05 Access to List of Certificateholders' Names and
Addresses.
If three or more Certificateholders and/or Certificate Owners (a)
request such information in writing from the Trustee, (b) state that such
Certificateholders and/or Certificate Owners desire to communicate with other
Certificateholders and/or Certificate Owners with respect to their rights
under this Agreement or under the Certificates, and (c) provide a copy of the
communication which such
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Certificateholders and/or Certificate Owners propose to transmit, or if the
Depositor or Servicer shall request such information in writing from the
Trustee, then the Trustee shall, within ten Business Days after the receipt of
such request, provide the Depositor, the Servicer or such Certificateholders
and/or Certificate Owners at such recipients' expense the most recent list of
the Certificateholders of such Trust Fund held by the Trustee. The Depositor
and every Certificateholder and/or Certificate Owner, by receiving and holding
a Certificate, agree that the Trustee shall not be held accountable because of
the disclosure of any such information as to the list of the
Certificateholders hereunder, regardless of the source from which such
information was derived.
Section 5.06 Maintenance of Office or Agency.
The Certificate Registrar will maintain at its expense an office or
offices or agency or agencies in the United States located at DB Services
Tennessee, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention:
Transfer Unit, where Certificates may be surrendered for registration of
transfer or exchange. The Certificate Registrar will give prompt written
notice to the Certificateholders and to the Trustee (if other than the
Certificate Registrar) of any change in such location of any such office or
agency.
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ARTICLE SIX
THE DEPOSITOR AND THE SERVICER
Section 6.01 Respective Liabilities of the Depositor and the
Servicer.
The Depositor and the Servicer shall each be liable in accordance
with this Agreement only to the extent of the obligations specifically and
respectively imposed upon and undertaken by them in this Agreement.
Section 6.02 Merger or Consolidation of the Depositor or the
Servicer.
The Depositor and the Servicer will each keep in full effect their
existence and their rights and franchises as a corporation and a federal
savings bank, respectively, under the laws of the United States or under the
laws of one of the states thereof and will each obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, or any of the Mortgage Loans and to perform
its respective duties under this Agreement.
Any Person into which the Depositor or the Servicer may be merged or
consolidated, or any Person resulting from any merger or consolidation to
which the Depositor or the Servicer shall be a party, or any person succeeding
to the business of the Depositor or the Servicer, shall be the successor of
the Depositor or the Servicer, as the case may be, hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding; provided,
however, that the successor or surviving Person to the Servicer shall be
qualified to sell mortgage loans to, and to service mortgage loans on behalf
of, FNMA or FHLMC.
As a condition to the effectiveness of any merger or consolidation,
at least 15 calendar days prior to the effective date of any merger or
consolidation of the Servicer, the Servicer shall provide (x) written notice
to the Depositor of any successor pursuant to this Section and (y) in writing
and in form and substance reasonably satisfactory to the Depositor, all
information reasonably requested by the Depositor in order to comply with its
reporting obligation under Item 6.02 of Form 8-K with respect to a replacement
Servicer.
Section 6.03 Limitation on Liability of the Depositor, the Seller,
the Servicer, and Others.
None of the Depositor, the Seller, the Servicer or any of the
directors, officers, employees or agents of the Depositor, the Seller or the
Servicer shall be under any liability to the Certificateholders for any action
taken or for refraining from the taking of any action in good faith pursuant
to this Agreement, or for errors in judgment; provided, however, that this
provision shall not protect the Depositor, the Seller, the Servicer or any
such Person against any breach of representations or warranties made by it
herein or protect the Depositor, the Seller, the Servicer or any such Person
from any liability which would otherwise be imposed by reasons of willful
misfeasance, bad faith or gross negligence in the performance of duties or
because of reckless disregard of obligations and duties hereunder. The
Depositor, the Seller, the Servicer, and any director, officer, employee or
agent of the Depositor, the Seller or the Servicer may rely in good faith on
any document of any kind prima facie properly executed and submitted by any
Person respecting any matters arising hereunder. The Depositor, the Seller,
the Servicer, and any director, officer, employee or agent of the Depositor,
the Seller or the Servicer shall be indemnified by the Trust Fund and held
harmless against any loss, liability or expense incurred in connection with
any audit, controversy or judicial proceeding relating to a governmental
taxing authority or any legal action relating to this Agreement or the
Certificates, other than any loss, liability or expense related to any
specific
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Mortgage Loan or Mortgage Loans (except as any such loss, liability or expense
shall be otherwise reimbursable pursuant to this Agreement) and any loss,
liability or expense incurred because of willful misfeasance, bad faith or
gross negligence in the performance of duties hereunder or because of reckless
disregard of obligations and duties hereunder. None of the Depositor, the
Seller or the Servicer shall be under any obligation to appear in, prosecute
or defend any legal action that is not incidental to its respective duties
hereunder and which in its opinion may involve it in any expense or liability;
provided, however, that any of the Depositor, the Seller or the Servicer may
in its discretion undertake any such action that it may deem appropriate in
respect of this Agreement and the rights and duties of the parties hereto and
interests of the Trustee and the Certificateholders hereunder. In such event,
the legal expenses and costs of such action and any liability resulting
therefrom shall be expenses, costs and liabilities of the Trust Fund, and the
Depositor, the Seller, and the Servicer shall be entitled to be reimbursed
therefor out of the Certificate Account.
Section 6.04 Limitation on Resignation of the Servicer.
The Servicer shall not resign from the obligations and duties hereby
imposed on it except (a) upon appointment of a successor servicer and receipt
by the Trustee of a letter from each Rating Agency that such a resignation and
appointment will not result in a downgrading, qualification or withdrawal of
the rating of any of the Certificates or (b) upon determination that its
duties under this Agreement are no longer permissible under applicable law.
Any such determination under clause (b) permitting the resignation of the
Servicer shall be evidenced by an Opinion of Counsel to such effect delivered
to the Trustee. No such resignation shall become effective until the Trustee
or a successor servicer shall have assumed the Servicer's responsibilities,
duties, liabilities and obligations under this Agreement and the Depositor
shall have received the information described in the following sentence. As a
condition to the effectiveness of any such resignation, at least 15 calendar
days prior to the effective date of such resignation, the Servicer shall
provide (x) written notice to the Depositor of any successor pursuant to this
Section and (y) in writing and in form and substance reasonably satisfactory
to the Depositor, all information reasonably requested by the Depositor in
order to comply with its reporting obligation under Item 6.02 of Form 8-K with
respect to the resignation of the Servicer.
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ARTICLE SEVEN
DEFAULT
Section 7.01 Events of Default.
"Event of Default," wherever used in this Agreement, means any one of
the following events:
(a) any failure by the Servicer to deposit in the Certificate Account
or remit to the Trustee any payment required to be made by it under this
Agreement, which failure continues unremedied for five days after the date on
which written notice of the failure has been given to the Servicer by the
Trustee or the Depositor or to the Servicer and the Trustee by the Holders of
Certificates of any Class evidencing not less than 25% of the aggregate
Percentage Interests of the Class; or
(b) any failure by the Servicer to observe or perform in any material
respect any other of the covenants or agreements on the part of the Servicer
contained in this Agreement (except with respect to a failure related to a
Limited Exchange Act Reporting Obligation), which failure materially affects
the rights of Certificateholders and continues unremedied for a period of 60
days after the date on which written notice of such failure shall have been
given to the Servicer by the Trustee or the Depositor, or to the Servicer and
the Trustee by the Holders of Certificates of any Class evidencing not less
than 25% of the Percentage Interests of the Class; provided that the sixty-day
cure period shall not apply to the initial delivery of the Mortgage File for
Delay Delivery Mortgage Loans nor the failure to repurchase or substitute in
lieu thereof; or
(c) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises for the appointment of a receiver,
conservator or liquidator in any insolvency, readjustment of debt, marshalling
of assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Servicer and
such decree or order shall have remained in force undischarged or unstayed for
a period of 60 consecutive days; or
(d) the Servicer shall consent to the appointment of a receiver,
conservator or liquidator in any insolvency, readjustment of debt, marshalling
of assets and liabilities or similar proceedings of or relating to the
Servicer or all or substantially all of the property of the Servicer; or
(e) the Servicer shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take advantage of, or
commence a voluntary case under, any applicable insolvency or reorganization
statute, make an assignment for the benefit of its creditors, or voluntarily
suspend payment of its obligations; or
(f) the Servicer shall fail (i) to make an Advance on the Servicer
Advance Date or (ii) to reimburse in full the Trustee within two days of the
Servicer Advance Date for any Advance made by the Trustee pursuant to Section
4.01(b).
If an Event of Default described in clauses (a) through (f) of this
Section 7.01 occurs, then, and in each and every such case, so long as such
Event of Default shall not have been remedied, the Trustee may, or at the
direction of the Holders of Certificates of any Class evidencing not less than
66 2/3% of the Percentage Interests of the Class, the Trustee shall by notice
in writing to the Servicer (with a copy to each Rating Agency), terminate all
of the rights and obligations of the Servicer under this Agreement and in the
Mortgage Loans and the proceeds thereof, other than its rights as a
Certificateholder hereunder. In addition, if during the period that the
Depositor is required to file Exchange Act Reports with respect to the Trust
Fund, the Servicer shall fail to observe or perform any of the obligations
that constitute a
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Limited Exchange Act Reporting Obligation or the obligations set forth in
Section 3.17(a) or Section 11.07(a)(i) and (ii), and such failure continues
for the lesser of 10 calendar days or such period in which the applicable
Exchange Act Report can be filed timely (without taking into account any
extensions), so long as such failure shall not have been remedied, the Trustee
shall, but only at the direction of the Depositor, terminate all of the rights
and obligations of the Servicer under this Agreement and in and to the
Mortgage Loans and the proceeds thereof, other than its rights as a
Certificateholder hereunder. The Depositor shall not be entitled to terminate
the rights and obligations of the Servicer if a failure of the Servicer to
identify a Subcontractor "participating in the servicing function" within the
meaning of Item 1122 of Regulation AB was attributable solely to the role or
functions of such Subcontractor with respect to mortgage loans other than the
Mortgage Loans.
On and after the receipt by the Servicer of such written notice, all
authority and power of the Servicer hereunder, whether with respect to the
Mortgage Loans or otherwise, shall pass to and be vested in the Trustee. The
Trustee shall make any Advance that the Servicer failed to make subject to
Section 3.05, whether or not the obligations of the Servicer have been
terminated pursuant to this Section. The Trustee is hereby authorized and
empowered to execute and deliver, on behalf of the Servicer, as
attorney-in-fact or otherwise, any documents and other instruments, and to do
or accomplish all other acts or things necessary or appropriate to effect the
purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the Mortgage Loans and related documents, or
otherwise. Unless expressly provided in such written notice, no such
termination shall affect any obligation of the Servicer to pay amounts owed
pursuant to Article VIII. The Servicer agrees to cooperate with the Trustee in
effecting the termination of the Servicer's responsibilities and rights
hereunder, including the transfer to the Trustee of all cash amounts which
shall at the time be credited to the Certificate Account, or thereafter be
received with respect to the Mortgage Loans. If the Servicer fails to make any
Advance required under Section 4.01 of this Agreement, thereby triggering an
Event of Default described in clause (f) of this Section 7.01, the Trustee
shall make such Advance on that Distribution Date.
Notwithstanding any termination of the activities of the Servicer
under this Agreement, the Servicer shall be entitled to receive, out of any
late collection of a Scheduled Payment on a Mortgage Loan which was due before
the notice terminating such Servicer's rights and obligations as Servicer
hereunder and received after such notice, that portion thereof to which such
Servicer would have been entitled pursuant to Sections 3.09(a)(i) through
(viii), and any other amounts payable to such Servicer hereunder the
entitlement to which arose before the termination of its activities hereunder.
If the Servicer is terminated, the Trustee shall provide the
Depositor in writing and in form and substance reasonably satisfactory to the
Depositor, all information reasonably requested by the Depositor in order to
comply with its reporting obligation under Item 6.02 of Form 8-K with respect
to a successor servicer in the event the Trustee should succeed to the duties
of the Servicer as set forth herein.
Section 7.02 Trustee to Act; Appointment of Successor.
On and after the time the Servicer receives a notice of termination
pursuant to Section 7.01, the Trustee shall, subject to and to the extent
provided in Section 3.05, be the successor to the Servicer in its capacity as
servicer under this Agreement and the transactions set forth or provided for
herein and shall be subject to all the responsibilities, duties and
liabilities relating thereto placed on the Servicer by the terms hereof and
applicable law including the obligation to make Advances pursuant to Section
4.01. As compensation therefor, the Trustee shall be entitled to all funds
relating to the Mortgage Loans that the Servicer would have been entitled to
charge to the Certificate Account or Distribution Account if the Servicer had
continued to act hereunder, including, if the Servicer was receiving the
Servicing Fee, the Servicing Fee. Notwithstanding the foregoing, if the
Trustee has become the successor to the Servicer in
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accordance with Section 7.01, the Trustee may, if it shall be unwilling to so
act, or shall, if it is prohibited by applicable law from making Advances
pursuant to Section 4.01 or if it is otherwise unable to so act, appoint, or
petition a court of competent jurisdiction to appoint, any established
mortgage loan servicing institution the appointment of which does not
adversely affect the then current rating of the Certificates by each Rating
Agency, as the successor to the Servicer hereunder in the assumption of all or
any part of the responsibilities, duties or liabilities of the Servicer
hereunder. Any successor to the Servicer shall be an institution which is a
FNMA and FHLMC approved seller/servicer in good standing, which has a net
worth of at least $15,000,000, which is willing to service the Mortgage Loans
and which executes and delivers to the Depositor and the Trustee an agreement
accepting such delegation and assignment, containing an assumption by such
Person of the rights, powers, duties, responsibilities, obligations and
liabilities of the Servicer (other than liabilities of the Servicer under
Section 6.03 incurred before termination of the Servicer under Section 7.01),
with like effect as if originally named as a party to this Agreement; provided
that each Rating Agency acknowledges that its rating of the Certificates in
effect immediately before such assignment and delegation will not be qualified
or reduced as a result of such assignment and delegation. Pending appointment
of a successor to the Servicer hereunder, the Trustee shall act in such
capacity as provided above, subject to section 3.03 and unless prohibited by
law. In connection with such appointment and assumption, the Trustee may make
such arrangements for the compensation of such successor out of payments on
Mortgage Loans as it and such successor shall agree; provided, however, that
in no case shall the rate of such compensation exceed the Servicing Fee Rate.
The Trustee and such successor shall take such action, consistent with this
Agreement, as shall be necessary to effectuate any such succession. Neither
the Trustee nor any other successor servicer shall be deemed to be in default
hereunder because of any failure to make, or any delay in making, any
distribution hereunder or any portion thereof or any failure to perform, or
any delay in performing, any duties or responsibilities hereunder, in either
case caused by the failure of the Servicer to deliver or provide, or any delay
in delivering or providing, any cash, information, documents or records to it.
In connection with the termination or resignation of the Servicer
hereunder, either (i) the successor Servicer, including the Trustee if the
Trustee is acting as successor Servicer, shall represent and warrant that it
is a member of MERS in good standing and shall agree to comply in all material
respects with the rules and procedures of MERS in connection with the
servicing of the Mortgage Loans that are registered with MERS, or (ii) the
predecessor Servicer shall cooperate with the successor Servicer either (x) in
causing MERS to execute and deliver an assignment of Mortgage in recordable
form to transfer the Mortgage from MERS to the Trustee and to execute and
deliver such other notices, documents and other instruments as may be
necessary or desirable to effect a transfer of such Mortgage Loan or servicing
of such Mortgage Loan on the MERS(R) System to the successor Servicer or (y)
in causing MERS to designate on the MERS(R) System the successor Servicer as
the servicer of such Mortgage Loan. The predecessor Servicer shall file or
cause to be filed any such assignment in the appropriate recording office. The
successor Servicer shall cause such assignment to be delivered to the Trustee
promptly upon receipt of the original with evidence of recording thereon or a
copy certified by the public recording office in which such assignment was
recorded.
Any successor to the Servicer as servicer shall give notice to the
Mortgagors of such change of servicer and shall, during the term of its
service as servicer, maintain in force the policy or policies that the
Servicer is required to maintain pursuant to this Agreement.
Section 7.03 Notification to Certificateholders.
(a) Upon any termination of or appointment of a successor to the
Servicer, the Trustee shall give prompt written notice thereof to
Certificateholders and to each Rating Agency.
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(b) Within 60 days after the occurrence of any Event of Default, the
Trustee shall transmit by mail to all Certificateholders and each Rating
Agency notice of each such Event of Default hereunder known to the Trustee,
unless such Event of Default shall have been cured or waived.
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ARTICLE EIGHT
CONCERNING THE TRUSTEE
Section 8.01 Duties of the Trustee.
The Trustee, before the occurrence of an Event of Default and after
the curing of all Events of Default that may have occurred, shall undertake to
perform such duties and only such duties as are specifically set forth in this
Agreement. In case an Event of Default has occurred and remains uncured, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments
furnished to the Trustee that are specifically required to be furnished
pursuant to any provision of this Agreement shall examine them to determine
whether they are in the form required by this Agreement. The Trustee shall not
be responsible for the accuracy or content of any such resolution,
certificate, statement, opinion, report, document, order, or other instrument.
No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; provided, however, that, unless an Event
of Default known to the Trustee has occurred and is continuing,
(a) the duties and obligations of the Trustee shall be determined
solely by the express provisions of this Agreement, the Trustee shall not be
liable except for the performance of the duties and obligations specifically
set forth in this Agreement, no implied covenants or obligations shall be read
into this Agreement against the Trustee, and the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to the Trustee
and conforming to the requirements of this Agreement which it believed in good
faith to be genuine and to have been duly executed by the proper authorities
respecting any matters arising hereunder;
(b) the Trustee shall not be liable for an error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it is finally proven that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken,
suffered, or omitted to be taken by it in good faith in accordance with the
direction of Holders of Certificates evidencing not less than 25% of the
Voting Rights of Certificates relating to the time, method, and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee under this Agreement.
As long as any Voting Rights are held by parties other than the Seller, its
Affiliates, or its agents, Voting Rights of Certificates held by the Seller,
its Affiliates or its agents as the Seller shall certify to the Trustee upon
any entity obtaining such ownership, will be excluded from participating in
such voting arrangements, and excluded from determining the 25% threshold.
Section 8.02 Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 8.01:
(a) the Trustee may request and rely upon and shall be protected in
acting or refraining from acting upon any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement,
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instrument, opinion, report, notice, request, consent, order, appraisal, bond
or other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties and the Trustee shall have
no responsibility to ascertain or confirm the genuineness of any signature of
any such party or parties;
(b) the Trustee may consult with counsel, financial advisers or
accountants and the advice of any such counsel, financial advisers or
accountants and any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance with such Opinion of
Counsel;
(c) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Agreement;
(d) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other
paper or document, unless requested in writing so to do by Holders of
Certificates evidencing not less than 25% of the Voting Rights allocated to
each Class of Certificates; provided, however, that no Certificates held by
the Seller, the Depositor or any Affiliate shall be given effect for the
purpose of calculating any such aggregation of Voting Rights;
(e) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
accountants or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agents, accountants or attorneys
appointed with due care by it hereunder;
(f) the Trustee shall not be required to risk or expend its own funds
or otherwise incur any financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers hereunder if it shall
have reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not assured to it;
(g) the Trustee shall not be liable for any loss on any investment of
funds pursuant to this Agreement (other than as issuer of the investment
security);
(h) the Trustee shall not be deemed to have knowledge of an Event of
Default until a Responsible Officer of the Trustee shall have received written
notice thereof;
(i) the Trustee shall be under no obligation to exercise any of the
trusts, rights or powers vested in it by this Agreement or to institute,
conduct or defend any litigation hereunder or in relation hereto at the
request, order or direction of any of the Certificateholders, pursuant to this
Agreement, unless such Certificateholders shall have offered to the Trustee
reasonable security or indemnity satisfactory to the Trustee against the
costs, expenses and liabilities which may be incurred therein or thereby;
(j) the Trustee or its Affiliates are permitted to receive additional
compensation that could be deemed to be in the Trustee's economic
self-interest for (i) serving as investment adviser, administrator,
shareholder servicing agent, custodian or sub-custodian with respect to
certain of the Permitted Investments, (ii) using Affiliates to effect
transactions in certain Permitted Investments and (iii) effecting transactions
in certain Permitted Investments. The Trustee does not guarantee the
performance of any Permitted Investment; and
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(k) the Trustee shall not knowingly take any action that would cause
the Trust Fund to fail to qualify as a qualifying special purpose entity.
In order to comply with laws, rules, regulations and executive orders
in effect from time to time applicable to banking institutions, including
those relating to the funding of terrorist activities and money laundering
("Applicable Law"), the Trustee is required to obtain, verify and record
certain information relating to individuals and entities which maintain a
business relationship with the Trustee. Accordingly, each of the parties
agrees to provide to the Trustee upon its request from time to time such
identifying information and documentation as may be available for such party
in order to enable the Trustee to comply with Applicable Law.
Section 8.03 Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates shall be taken
as the statements of the Depositor or the Seller, as the case may be, and the
Trustee assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Agreement or of the
Certificates or of any Mortgage Loan or related document other than with
respect to the Trustee's execution and countersignature of the Certificates.
The Trustee shall not be accountable for the use or application by the
Depositor or the Servicer of any funds paid to the Depositor or the Servicer
in respect of the Mortgage Loans or deposited in or withdrawn from the
Certificate Account by the Depositor or the Servicer.
Except as provided in Section 2.01(c), the Trustee shall have no
responsibility for filing or recording any financing or continuation statement
in any public office at any time or to otherwise perfect or maintain the
perfection of any security interest or lien granted to it hereunder (unless
the Trustee shall have become the successor Servicer). The Trustee makes no
representations as to the validity or sufficiency of this Agreement or of the
Certificates or of any Mortgage Loan or related document or of MERS or the
MERS(R) System other than with respect to the Trustee's execution and
counter-signature of the Certificates.
The Trustee executes the Certificates not in its individual capacity
but solely as Trustee of the Trust Fund created by this Agreement, in the
exercise of the powers and authority conferred and vested in it by this
Agreement. Each of the undertakings and agreements made on the part of the
Trustee on behalf of the Trust Fund in the Certificates is made and intended
not as a personal undertaking or agreement by the Trustee but is made and
intended for the purpose of binding only the Trust Fund.
Section 8.04 Trustee May Own Certificates.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Certificates with the same rights as it would have if it
were not the Trustee.
Section 8.05 Trustee's Fees and Expenses.
As compensation for its activities under this Agreement, on each
Distribution Date the Trustee may withdraw from the Distribution Account the
Trustee Fee for that Distribution Date. The Trustee and any director, officer,
employee, or agent of the Trustee shall be indemnified by the Servicer against
any loss, liability, or expense (including reasonable attorney's fees)
resulting from any error in any tax or information return prepared by the
Servicer or incurred in connection with any claim or legal action relating to
(a) this Agreement, (b) the Certificates, or (c) the performance of any of the
Trustee's duties under this Agreement, other than any loss, liability or
expense incurred because of willful misfeasance, bad faith or negligence in
the performance of any of the Trustee's duties hereunder or incurred by reason
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of any action of the Trustee taken at the direction of the Certificateholders
under this Agreement. This indemnity shall survive the termination of this
Agreement or the resignation or removal of the Trustee under this Agreement.
Without limiting the foregoing, except as otherwise agreed upon in writing by
the Depositor and the Trustee, and except for any expense, disbursement, or
advance arising from the Trustee's negligence, bad faith, or willful
misconduct, the Servicer shall pay or reimburse the Trustee, for all
reasonable expenses, disbursements, and advances incurred or made by the
Trustee in accordance with this Agreement with respect to
(A) the reasonable compensation, expenses, and disbursements of its
counsel not associated with the closing of the issuance of the Certificates,
and
(B) the reasonable compensation, expenses, and disbursements of any
accountant, engineer, or appraiser that is not regularly employed by the
Trustee, to the extent that the Trustee must engage them to perform services
under this Agreement.
Except as otherwise provided in this Agreement, the Trustee shall not be
entitled to payment or reimbursement for any routine ongoing expenses incurred
by the Trustee in the ordinary course of its duties as Trustee, Registrar, or
Paying Agent under this Agreement or for any other expenses.
Section 8.06 Eligibility Requirements for the Trustee.
The Trustee hereunder shall at all times be a corporation or
association organized and doing business under the laws of a state or the
United States of America, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by federal or state authority and with a
credit rating which would not cause either of the Rating Agencies to reduce
their respective then current ratings of the Certificates (or having provided
such security from time to time as is sufficient to avoid such reduction) as
evidenced in writing by each Rating Agency. If such corporation or association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section 8.06 the combined capital and surplus of such
corporation or association shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Trustee shall cease to be eligible in accordance with
this Section 8.06, the Trustee shall resign immediately in the manner and with
the effect specified in Section 8.07. The entity serving as Trustee may have
normal banking and trust relationships with the Depositor and its affiliates
or the Servicer and its affiliates; provided, however, that such entity cannot
be an affiliate of the Seller, the Depositor or the Servicer other than the
Trustee in its role as successor to the Servicer.
Section 8.07 Resignation and Removal of the Trustee.
The Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice of resignation to the Depositor, the
Servicer, and each Rating Agency not less than 60 days before the date
specified in such notice, when, subject to Section 8.08, such resignation is
to take effect, and acceptance by a successor trustee in accordance with
Section 8.08 meeting the qualifications set forth in Section 8.06. If no
successor trustee meeting such qualifications shall have been so appointed and
have accepted appointment within 30 days after the giving of such notice or
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
As a condition to the effectiveness of any such resignation, at least
15 calendar days prior to the effective date of such resignation, the Trustee
shall provide (x) written notice to the Depositor of any successor pursuant to
this Section and (y) in writing and in form and substance reasonably
satisfactory to
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the Depositor, all information reasonably requested by the Depositor in order
to comply with its reporting obligation under Item 6.02 of Form 8-K with
respect to the resignation of the Trustee.
If at any time (i) the Trustee shall cease to be eligible in
accordance with Section 8.06 and shall fail to resign after written request
thereto by the Depositor, (ii) the Trustee shall become incapable of acting,
or shall be adjudged as bankrupt or insolvent, or a receiver of the Trustee or
of its property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, (iii)(A) a tax is imposed with
respect to the Trust Fund by any state in which the Trustee or the Trust Fund
is located and (B) the imposition of such tax would be avoided by the
appointment of a different trustee, or (iv) during the period which the
Depositor is required to file Exchange Act Reports with respect to the Trust
Fund, the Trustee fails to comply with its obligations under the last sentence
of Section 7.01, the preceding paragraph, Section 8.09 or Article 11 and such
failure is not remedied within the lesser of 10 calendar days or such period
in which the applicable Exchange Act Report can be filed timely (without
taking into account any extensions), then, in the case of clauses (i) through
(iii), then the Depositor or the Servicer, or in the case of clause (iv), the
Depositor, may remove the Trustee and appoint a successor trustee by written
instrument, in triplicate, one copy of which shall be delivered to the
Trustee, one copy to the Servicer and one copy to the successor trustee.
The Holders of Certificates entitled to at least 51% of the Voting
Rights may at any time remove the Trustee and appoint a successor trustee by
written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which shall be
delivered by the successor Trustee to the Servicer, one complete set to the
Trustee so removed, one complete set to the successor so appointed and one
complete set to the Depositor, together with a written description of the
basis for such removal. As long as any Voting Rights are held by parties other
than the Seller, its Affiliates, or its agents, Voting Rights of Certificates
held by the Seller, its Affiliates or its agents as the Seller shall certify
to the Trustee upon any such entity obtaining such ownership will be excluded
from participating in such voting arrangements, and excluded from determining
the 51% threshold. The successor trustee shall notify each Rating Agency of
any removal of the Trustee.
Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to this Section 8.07 shall become effective upon
acceptance of appointment by the successor trustee as provided in Section
8.08.
Section 8.08 Successor Trustee.
Any successor trustee appointed as provided in Section 8.07 shall
execute, acknowledge and deliver to the Depositor and to its predecessor
trustee and the Servicer an instrument accepting such appointment hereunder
and thereupon the resignation or removal of the predecessor trustee shall
become effective and such successor trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with the like effect as if
originally named as trustee herein. The Depositor, the Servicer and the
predecessor trustee shall execute and deliver such instruments and do such
other things as may reasonably be required for more fully and certainly
vesting and confirming in the successor trustee all such rights, powers,
duties, and obligations.
No successor trustee shall accept appointment as provided in this
Section 8.08 unless, at the time of its acceptance, the successor trustee is
eligible under Section 8.06 and its appointment does not adversely affect the
then current rating of the Certificates and has provided to the Depositor in
writing and in form and substance reasonably satisfactory to the Depositor,
all information reasonably requested by
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the Depositor in order to comply with its reporting obligation under Item 6.02
of Form 8-K with respect to a replacement Trustee.
Upon acceptance of appointment by a successor trustee as provided in
this Section 8.08, the Depositor shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates. If the Depositor fails to
mail such notice within 10 days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be mailed
at the expense of the Depositor.
Section 8.09 Merger or Consolidation of the Trustee.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to the business of the Trustee, shall be the
successor of the Trustee hereunder, provided that such corporation shall be
eligible under Section 8.06 without the execution or filing of any paper or
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
As a condition to the effectiveness of any merger or consolidation,
at least 15 calendar days prior to the effective date of any merger or
consolidation of the Trustee, the Trustee shall provide (x) written notice to
the Depositor of any successor pursuant to this Section and (y) in writing and
in form and substance reasonably satisfactory to the Depositor, all
information reasonably requested by the Depositor in order to comply with its
reporting obligation under Item 6.02 of Form 8-K with respect to a replacement
Trustee.
Section 8.10 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time,
for the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust Fund or property securing any Mortgage Note may at the
time be located, the Servicer and the Trustee acting jointly shall have the
power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Trustee to act as co-trustee or co-trustees jointly
with the Trustee, or separate trustee or separate trustees, of all or any part
of the Trust Fund, and to vest in such Person or Persons, in such capacity and
for the benefit of the Certificateholders, such title to the Trust Fund or any
part thereof, whichever is applicable, and, subject to the other provisions of
this Section 8.10, such powers, duties, obligations, rights and trusts as the
Servicer and the Trustee may consider appropriate. If the Servicer shall not
have joined in such appointment within 15 days after the receipt by it of a
request to do so, or in the case an Event of Default shall have occurred and
be continuing, the Trustee alone shall have the power to make such
appointment. No co-trustee or separate trustee hereunder shall be required to
meet the terms of eligibility as a successor trustee under Section 8.06 and no
notice to Certificateholders of the appointment of any co-trustee or separate
trustee shall be required under Section 8.08.
Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and
conditions:
(a) To the extent necessary to effectuate the purposes of this
Section 8.10, all rights, powers, duties and obligations conferred or imposed
upon the Trustee, except for the obligation of the Trustee under this
Agreement to advance funds on behalf of the Servicer, shall be conferred or
imposed upon and exercised or performed by the Trustee and such separate
trustee or co-trustee jointly (it being understood that such separate trustee
or co-trustee is not authorized to act separately without the Trustee joining
in such act), except to the extent that under any law of any jurisdiction in
which any particular act or acts are to be performed (whether as Trustee
hereunder or as successor to the Servicer hereunder), the Trustee
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shall be incompetent or unqualified to perform such act or acts, in which
event such rights, powers, duties and obligations (including the holding of
title to the applicable Trust Fund or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate trustee
or co-trustee, but solely at the direction of the Trustee;
(b) No trustee hereunder shall be held personally liable because of
any act or omission of any other trustee hereunder and such appointment shall
not, and shall not be deemed to, constitute any such separate trustee or
co-trustee as agent of the Trustee;
(c) The Trustee may at any time accept the resignation of or remove
any separate trustee or co-trustee; and
(d) The Servicer, and not the Trustee, shall be liable for the
payment of reasonable compensation, reimbursement and indemnification to any
such separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the separate trustees and co-trustees,
when and as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement
and the conditions of this Article VIII. Each separate trustee and co-trustee,
upon its acceptance of the trusts conferred, shall be vested with the estates
or property specified in its instrument of appointment, either jointly with
the Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Trustee. Every such instrument shall be filed with the
Trustee and a copy thereof given to the Servicer and the Depositor.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its
estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
Section 8.11 Tax Matters.
It is intended that the assets with respect to which one or more
REMIC elections pertaining to the Trust Fund is to be made, as set forth in
the Preliminary Statement, shall constitute, and that the conduct of matters
relating to such assets shall be such as to qualify such assets as, a "real
estate mortgage investment conduit" as defined in and in accordance with the
REMIC Provisions. In furtherance of such intention, the Trustee covenants and
agrees that it shall act as agent (and the Trustee is hereby appointed to act
as agent) on behalf of each REMIC created under this Agreement and that in
such capacity it shall:
(a) prepare and file in a timely manner, a U.S. Real Estate Mortgage
Investment Conduit Income Tax Return (Form 1066 or any successor form adopted
by the Internal Revenue Service) with respect to each REMIC created hereunder
and prepare and file with the Internal Revenue Service and applicable state or
local tax authorities income tax or information returns for each taxable year
with respect to each REMIC described in the Preliminary Statement, containing
such information and at the times and in the manner as may be required by the
Code or state or local tax laws, regulations, or rules, and furnish to
Certificateholders the schedules, statements or information at such times and
in such manner as may be required thereby;
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(b) within thirty days of the Closing Date, furnish to the Internal
Revenue Service, on Forms 8811 or as otherwise may be required by the Code,
the name, title, address, and telephone number of the person that the holders
of the Certificates may contact for tax information relating thereto, together
with such additional information as may be required by such Form, and update
such information at the time or times in the manner required by the Code;
(c) make an election that each REMIC created under this Agreement be
treated as a REMIC on the federal tax return for its first taxable year (and,
if necessary, under applicable state law);
(d) prepare and forward to the Certificateholders and to the Internal
Revenue Service and, if necessary, state tax authorities, all information
returns and reports as and when required to be provided to them in accordance
with the REMIC Provisions, including the calculations of any original issue
discount and of taxable income or net loss to the holders of the residual
interests in each REMIC created hereunder using the Prepayment Assumption (as
defined in the Prospectus Supplement). For purposes of calculating taxable
income or net loss to the holders of the residual interests in each such
REMIC, the Trustee also shall assume that the indices in respect of any
adjustable rate Mortgage Loans are static until the liquidation or purchase of
the Mortgage Loans in accordance with Section 9.01;
(e) provide information necessary for the computation of tax imposed
on the transfer of a Residual Certificate to a Person that is not a Permitted
Transferee, or an agent (including a broker, nominee or other middleman) of a
Person that is not a Permitted Transferee, or a pass-through entity in which a
Person that is not a Permitted Transferee is the record holder of an interest
(the reasonable cost of computing and furnishing such information may be
charged to the Person liable for such tax);
(f) to the extent that they are under its control, conduct matters
relating to such assets at all times that any Certificates are outstanding so
as to maintain the status as any REMIC created under this Agreement under the
REMIC Provisions;
(g) not knowingly or intentionally take any action or omit to take
any action that would cause the termination of the REMIC status of any REMIC
created under this Agreement;
(h) pay, from the sources specified in the third paragraph of this
Section 8.11, the amount of any federal or state tax, including prohibited
transaction taxes as described below, imposed on any REMIC before its
termination when and as the same shall be due and payable (but such obligation
shall not prevent the Trustee or any other appropriate Person from contesting
any such tax in appropriate proceedings and shall not prevent the Trustee from
withholding payment of such tax, if permitted by law, pending the outcome of
such proceedings);
(i) ensure that federal, state or local income tax or information
returns shall be signed by the Trustee or such other person as may be required
to sign such returns by the Code or state or local laws, regulations or rules;
(j) maintain records relating to each REMIC created under this
Agreement, including the income, expenses, assets, and liabilities thereof and
the fair market value and adjusted basis of the assets determined at such
intervals as may be required by the Code, as may be necessary to prepare the
foregoing returns, schedules, statements or information; and
(k) as and when necessary and appropriate, represent each REMIC
created under this Agreement in any administrative or judicial proceedings
relating to an examination or audit by any governmental taxing authority,
request an administrative adjustment as to any taxable year of such REMIC,
enter into settlement agreements with any governmental taxing agency, extend
any statute of limitations relating to
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any tax item of such REMIC, and otherwise act on behalf of such REMIC in
relation to any tax matter or controversy involving it.
To enable the Trustee to perform its duties under this Agreement, the
Depositor shall provide to the Trustee within ten days after the Closing Date
all information or data that the Trustee requests in writing and determines to
be relevant for tax purposes to the valuations and offering prices of the
Certificates, including the price, yield, prepayment assumption, and projected
cash flows of the Certificates and the Mortgage Loans. Thereafter, the
Depositor shall provide to the Trustee promptly upon written request therefor
any additional information or data that the Trustee may, from time to time,
reasonably request to enable the Trustee to perform its duties under this
Agreement. The Depositor hereby indemnifies the Trustee for any losses,
liabilities, damages, claims, or expenses of the Trustee arising from any
errors or miscalculations of the Trustee that result from any failure of the
Depositor to provide, or to cause to be provided, accurate information or data
to the Trustee on a timely basis.
If any tax is imposed on "prohibited transactions" (as defined in
section 860F(a)(2) of the Code) of any REMIC created under this Agreement, on
the "net income from foreclosure property" of any REMIC created under this
Agreement as defined in section 860G(c) of the Code, on any contribution to
any REMIC created under this Agreement after the Startup Day pursuant to
section 860G(d) of the Code, or any other tax is imposed, including any
minimum tax imposed on any REMIC created hereunder pursuant to sections 23153
and 24874 of the California Revenue and Taxation Code, if not paid as
otherwise provided for herein, the tax shall be paid by (i) the Trustee, if
any such other tax arises out of or results from negligence of the Trustee in
the performance of any of its obligations under this Agreement, (ii) the
Servicer or the Seller, in the case of any such minimum tax, if such tax
arises out of or results from a breach by the Servicer or Seller of any of
their obligations under this Agreement, (iii) the Seller, if any such tax
arises out of or results from the Seller's obligation to repurchase a Mortgage
Loan pursuant to Section 2.02 or 2.03, or (iv) in all other cases, or if the
Trustee, the Servicer, or the Seller fails to honor its obligations under the
preceding clauses (i), (ii), or (iii), any such tax will be paid with amounts
otherwise to be distributed to the Certificateholders, as provided in Section
3.09(b).
The Trustee shall file or cause to be filed with the Internal Revenue
Service, Form 1041 or such other form as may be applicable, and shall furnish
or cause to be furnished to the Holders of the Class L Certificate the Late
Payment Fees that are received, in the time or times and in the manner
required by the Code.
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ARTICLE NINE
TERMINATION
Section 9.01 Termination upon Liquidation or Purchase of the Mortgage
Loans.
Subject to Section 9.03, the obligations and responsibilities of the
Depositor, the Servicer, and the Trustee created hereby shall terminate upon
the earlier of
(a) the purchase by the Servicer of all Mortgage Loans (and REO
Properties) at the price equal to the sum of
(i) 100% of the Stated Principal Balance of each Mortgage Loan
(other than in respect of a Delinquent Mortgage Loan or REO
Property) plus one month's accrued interest thereon at the
applicable Adjusted Mortgage Rate less any amounts collected by the
Servicer representing principal and interest due after the related
Due Date,
(ii) the lesser of (x) the appraised value of any Delinquent
Mortgage Loan or REO Property as determined by the higher of two
appraisals completed by two independent appraisers selected by the
Servicer at the expense of the Servicer and (y) the Stated Principal
Balance of each such Delinquent Mortgage Loan or Mortgage Loan
related to such REO Property, in each case plus accrued and unpaid
interest thereon at the applicable Adjusted Net Mortgage Rate and
(iii) any costs and damages incurred by the Trust Fund in
connection with any violation by each Mortgage Loan of any predatory
or abusive lending law and
(b) the later of
(i) the maturity or other liquidation (or any Advance with
respect thereto) of the last Mortgage Loan and the disposition of
all REO Property and
(ii) the distribution to Certificateholders of all amounts
required to be distributed to them pursuant to this Agreement. In no
event shall the trusts created hereby continue beyond the expiration
of 21 years from the death of the survivor of the descendants of
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late Ambassador of the United States to the
Court of St. James's, living on the date of this Agreement.
The right to purchase all Mortgage Loans and REO Properties pursuant
to clause (a) above shall be conditioned upon the aggregate Stated Principal
Balance of those Mortgage Loans, at the time of any such repurchase,
aggregating less than ten percent (10%) of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date. The first Distribution
Date on which the right to purchase all Mortgage Loans and REO Properties
pursuant to clause (a) above first becomes exercisable is referred to as the
"Optional Termination Date." The Servicer shall effect any such repurchase by
depositing the purchase price, as calculated above, as of the month preceding
the date on which such purchase price shall be distributed to
Certificateholders into the Certificate Account. With such repurchase, the
Servicer shall acquire any rights or potential rights of the
Certificateholders or the Trustee to causes of action against any Person
relating to the Mortgage Loans or the origination of the Mortgage Loans,
including, without limitation, the right to enforce any breach of a
representation or warranty made at any time with respect to the Mortgage
Loans.
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Section 9.02 Final Distribution on the Certificates.
If on any Determination Date the Servicer determines that there are
no Outstanding Mortgage Loans and no other funds or assets in the Trust Fund
other than the funds in the Certificate Account, the Servicer shall direct the
Trustee promptly to send a final distribution notice to each
Certificateholder. If the Servicer elects to terminate the Trust Fund pursuant
to clause (a) of Section 9.01, no later than the 15th day of the month
preceding the month of the final Distribution Date the Servicer shall notify
the Depositor and the Trustee of the date the Servicer intends to terminate
the Trust Fund and of the applicable repurchase price of the Mortgage Loans
and REO Properties.
Notice of any termination of the Trust Fund specifying the
Distribution Date on which Certificateholders may surrender their Certificates
for payment of the final distribution and cancellation shall be given promptly
by the Trustee by letter to Certificateholders mailed not earlier than the
15th day and not later than the last day of the month next preceding the month
of such final distribution. Any such notice shall specify (a) the Distribution
Date upon which final distribution on the Certificates will be made upon
presentation and surrender of Certificates at the office therein designated,
(b) the amount of such final distribution, (c) the location of the office or
agency at which such presentation and surrender must be made, and (d) that the
Record Date otherwise applicable to the Distribution Date is not applicable,
distributions being made only upon presentation and surrender of the
Certificates at the office therein specified. The Servicer will give such
notice to each Rating Agency at the time such notice is given to
Certificateholders.
If this notice is given, the Servicer shall cause all funds in the
Certificate Account to be remitted to the Trustee for deposit in the
Distribution Account on the Business Day before the applicable Distribution
Date in an amount equal to the final distribution in respect of the
Certificates. Upon such final deposit with respect to the Trust Fund and the
receipt by the Trustee of a Request for Release therefor, the Trustee shall
promptly release to the Servicer the Mortgage Files for the Mortgage Loans.
Upon presentation and surrender of the Certificates, the Trustee
shall cause to be distributed to the Certificateholders of each Class, in each
case on the final Distribution Date and in the order set forth in Section
4.02, in proportion to their respective Percentage Interests, with respect to
Certificateholders of the same Class, an amount equal to (i) as to each Class
of Regular Certificates, its Certificate Balance plus for each such Class
accrued interest thereon in the case of an interest-bearing Certificate and
(ii) as to the Residual Certificates, any amount remaining on deposit in the
Distribution Account (other than the amounts retained to meet claims) after
application pursuant to clause (i) above. Notwithstanding the reduction of the
Certificate Balance of any Class of Certificates to zero, such Class will be
outstanding hereunder solely for the purpose of receiving distributions and
for no other purpose until the termination of the respective obligations and
responsibilities of the Depositor, the Servicer and the Trustee hereunder in
accordance with Article Nine. The foregoing provisions are intended to
distribute to each Class of Regular Certificates any accrued and unpaid
interest and principal to which they are entitled based on the Pass-Through
Rates and actual Class Certificate Balances set forth in the Preliminary
Statement upon liquidation of the Trust Fund.
If any affected Certificateholder does not surrender its Certificates
for cancellation within six months after the date specified in the above
mentioned written notice, the Trustee shall give a second written notice to
the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If
within six months after the second notice all the applicable Certificates
shall not have been surrendered for cancellation, the Trustee may take
appropriate steps, or may appoint an agent to take appropriate steps, to
contact the remaining Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of the funds and other
assets which remain a part of the Trust Fund. If within one year after the
second notice all Certificates
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shall not have been surrendered for cancellation, then the Class A-R
Certificateholders shall be entitled to all unclaimed funds and other assets
of the Trust Fund which remain subject hereto.
Section 9.03 Additional Termination Requirements.
(a) If the Servicer exercises its purchase option with respect to the
Mortgage Loans as provided in Section 9.01, the Trust Fund shall be terminated
in accordance with the following additional requirements, unless the Trustee
has been supplied with an Opinion of Counsel, at the expense of the Servicer,
to the effect that the failure to comply with the requirements of this Section
9.03 will not (i) result in the imposition of taxes on "prohibited
transactions" on any REMIC created hereunder as defined in section 860F of the
Code, or (ii) cause any REMIC created under this Agreement to fail to qualify
as a REMIC at any time that any Certificates are outstanding:
(b) The Trustee shall sell all of the assets of the Trust Fund to the
Servicer, and, within 90 days of such sale, shall distribute to the
Certificateholders the proceeds of such sale in complete liquidation of each
REMIC created under this Agreement.
(c) The Trustee shall attach a statement to the final federal income
tax return for each REMIC created under this Agreement stating that pursuant
to Treasury Regulation ss. 1.860F-1, the first day of the 90-day liquidation
period for such REMIC was the date on which the Trustee sold the assets of the
Trust Fund to the Servicer.
[GRANTOR TRUST PROVISIONS FOR THE CLASS L TO BE ADDED]
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ARTICLE TEN
MISCELLANEOUS PROVISIONS
Section 10.01 Amendment.
This Agreement may be amended from time to time by the Depositor, the
Servicer and the Trustee without the consent of any of the Certificateholders
(i) to cure any ambiguity or mistake, (ii) to correct any defective provision
in this Agreement or to supplement any provision in this Agreement which may
be inconsistent with any other provision in this Agreement, (iii) to conform
this Agreement to the Prospectus Supplement, (iv) to add to the duties of the
Depositor, the Seller or the Servicer, (v) to modify, alter, amend, add to or
rescind any of the terms or provisions contained in this Agreement to comply
with any rules or regulations promulgated by the Commission from time to time,
(vi) to add any other provisions with respect to matters or questions arising
under this Agreement, or (vii) to modify, alter, amend, add to, or rescind any
of the terms or provisions contained in this Agreement.
No action pursuant to clauses (v), (vi) or (vii) above may, as
evidenced by an Opinion of Counsel (which Opinion of Counsel shall not be an
expense of the Trustee or the Trust Fund), adversely affect in any material
respect the interests of any Certificateholder. The amendment shall not be
deemed to adversely affect in any material respect the interests of the
Certificateholders if the Person requesting the amendment obtains a letter
from each Rating Agency stating that the amendment would not result in the
downgrading, qualification or withdrawal of the respective ratings then
assigned to the Certificates. Any such letter in and of itself will not
represent a determination as to the materiality of any amendment and will
represent a determination only as to the credit issues affecting any rating.
Each party to this Agreement agrees that it will cooperate with each other
party in amending this Agreement pursuant to clause (v) above.
The Trustee, the Depositor, and the Servicer also may at any time and
from time to time amend this Agreement without the consent of the
Certificateholders to modify, eliminate or add to any of its provisions to the
extent necessary or helpful to (i) maintain the qualification of any REMIC
created under this Agreement as a REMIC under the Code, (ii) avoid or minimize
the risk of the imposition of any tax on any REMIC created under this
Agreement pursuant to the Code that would be a claim at any time before the
final redemption of the Certificates, or (iii) comply with any other
requirements of the Code, if the Trustee has been provided an Opinion of
Counsel, which opinion shall be an expense of the party requesting such
opinion but in any case shall not be an expense of the Trustee or the Trust
Fund, to the effect that the action is necessary or helpful for one of the
foregoing purposes.
This Agreement may also be amended from time to time by the
Depositor, the Servicer, and the Trustee with the consent of the Holders of
Certificates evidencing Percentage Interests aggregating not less than 51% of
each Class of Certificates adversely affected thereby 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 of Certificates. As long as any Voting Rights are held by parties
other than the Seller, its Affiliates, or its agents, as the Seller shall
certify to the Trustee upon any such entity obtaining such ownership, Voting
Rights of Certificates held by the Seller, its Affiliates or its agents will
be excluded from participating in such voting arrangements, and excluded from
determining the 51% threshold. No amendment shall
(i) reduce in any manner the amount of, or delay the timing of,
payments required to be distributed on any Certificate without the consent of
the Holder of such Certificate,
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(ii) amend, modify, add to, rescind, or alter in any respect Section
10.13, notwithstanding any contrary provision of this Agreement, without the
consent of the Holders of Certificates evidencing Percentage Interests
aggregating not less than 66 2/3% (provided, however, that no Certificates
held by the Seller, the Depositor or any Affiliate thereby shall be given
effect for the purpose of calculating any such aggregation of Percentage
Interests), or
(iii) reduce the aforesaid percentages of Certificates the Holders of
which are required to consent to any such amendment, without the consent of
the Holders of all such Certificates then outstanding.
Notwithstanding any contrary provision of this Agreement, the Trustee
shall not consent to any amendment to this Agreement unless (i) it shall have
first received an Opinion of Counsel, which opinion shall not be an expense of
the Trustee or the Trust Fund, to the effect that such amendment will not
cause the imposition of any tax on any REMIC created under this Agreement or
the Certificateholders or cause any REMIC created hereunder to fail to qualify
as a REMIC at any time that any Certificates are outstanding and (ii) because
the Trust Fund is required to be a Qualifying Special Purpose Entity (as that
term is defined in Statement of Financial Accounting Standards No. 140 ("SFAS
140"), in order for the Seller to continue to account for the transfer of the
Mortgage Loans under this Agreement as a sale under SFAS 140, prior to the
parties hereto entering into such an amendment, the Trustee shall receive an
Officer's Certificate, which shall not be an expense of the Trustee or the
Trust Fund, to the effect that such amendment would not "significantly change"
(within the meaning of SFAS 140) the permitted activities of the Trust Fund so
as to cause the Trust Fund to fail to qualify as a Qualifying Special Purpose
Entity.
Promptly after the execution of any amendment to this Agreement
requiring the consent of Certificateholders, the Trustee shall furnish written
notification of the substance or a copy of such amendment to each
Certificateholder and each Rating Agency.
It shall not be necessary for the consent of Certificateholders under
this Section 10.01 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 Certificateholders shall be subject
to such reasonable regulations as the Trustee may prescribe.
Nothing in this Agreement shall require the Trustee to enter into an
amendment without receiving an Opinion of Counsel (which Opinion shall not be
an expense of the Trustee or the Trust Fund), satisfactory to the Trustee that
(i) such amendment is permitted and is not prohibited by this Agreement and
that all requirements for amending this Agreement have been complied with; and
(ii) either (A) the amendment does not adversely affect in any material
respect the interests of any Certificateholder or (B) the conclusion set forth
in the preceding clause (A) is not required to be reached pursuant to this
Section 10.01.
Section 10.02 Recordation of Agreement; Counterparts.
This Agreement is subject to recordation in all appropriate public
offices for real property records in all the counties or other comparable
jurisdictions in which any or all of the properties subject to the Mortgages
are situated, and in any other appropriate public recording office or
elsewhere, such recordation to be effected by the Servicer at its expense, but
only upon receipt of an Opinion of Counsel to the effect that such recordation
materially and beneficially affects the interests of the Certificateholders.
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For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one
and the same instrument.
Section 10.03 Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HERETO AND THE CERTIFICATEHOLDERS SHALL BE DETERMINED
IN ACCORDANCE WITH SUCH LAWS.
Section 10.04 Intention of Parties.
It is the express intent of the parties hereto that the conveyance
(i) of the Mortgage Loans by the Seller to the Depositor and (ii) of the Trust
Fund by the Depositor to the Trustee each be, and be construed as, an absolute
sale thereof. It is, further, not the intention of the parties that such
conveyances be deemed a pledge thereof. However, if, notwithstanding the
intent of the parties, the assets are held to be the property of the Seller or
Depositor, as the case may be, or if for any other reason this Agreement is
held or deemed to create a security interest in either such assets, then (i)
this Agreement shall be deemed to be a security agreement within the meaning
of the UCC and (ii) the conveyances provided for in this Agreement shall be
deemed to be an assignment and a grant (i) by the Seller to the Depositor or
(ii) by the Depositor to the Trustee, for the benefit of the
Certificateholders, of a security interest in all of the assets transferred,
whether now owned or hereafter acquired.
The Seller and the Depositor for the benefit of the
Certificateholders shall, to the extent consistent with this Agreement, take
such actions as may be necessary to ensure that, if this Agreement were deemed
to create a security interest in the Trust Fund, such security interest would
be deemed to be a perfected security interest of first priority under
applicable law and will be maintained as such throughout the term of the
Agreement. The Depositor shall arrange for filing any Uniform Commercial Code
continuation statements in connection with any security interest granted or
assigned to the Trustee for the benefit of the Certificateholders.
Section 10.05 Notices.
(a) The Trustee shall use its best efforts to promptly provide notice
to each Rating Agency with respect to each of the following of which it has
actual knowledge:
1. Any material change or amendment to this Agreement;
2. The occurrence of any Event of Default that has not been cured;
3. The resignation or termination of the Servicer or the Trustee and
the appointment of any successor;
4. The repurchase or substitution of Mortgage Loans pursuant to
Section 2.03; and
5. The final distribution to Certificateholders.
In addition, the Trustee shall promptly furnish to each Rating Agency
copies of the following:
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1. Each report to Certificateholders described in Section 4.06;
2. Each annual statement as to compliance described in Section 3.17;
3. Each annual independent public accountants' servicing report
described in Section 11.07; and
4. Any notice of a purchase of a Mortgage Loan pursuant to Section
2.02, 2.03 or 3.11.
(b) All directions, demands and notices hereunder shall be in writing
and shall be deemed to have been duly given when delivered to (a) in the case
of the Depositor, IndyMac MBS, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Secondary Marketing Transaction Management; (b)
in the case of the Servicer, IndyMac Bank, F.S.B., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Secondary Marketing, Transaction
Management or such other address as may be hereafter furnished to the
Depositor and the Trustee by the Servicer in writing; (c) in the case of the
Trustee to the Corporate Trust Office, Deutsche Bank National Trust Company,
▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Trust
Administration IN07AB, Series 2007-AR11, or such other address as the Trustee
may hereafter furnish to the Depositor or Servicer and (d) in the case of each
of the Rating Agencies, the address specified therefor in the definition
corresponding to the name of such Rating Agency. Notices to Certificateholders
shall be deemed given when mailed, first class postage prepaid, to their
respective addresses appearing in the Certificate Register.
Section 10.06 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions
of this Agreement or of the Certificates or the rights of the Holders thereof.
Section 10.07 Assignment
Notwithstanding anything to the contrary contained in this Agreement,
except as provided in Section 6.02, this Agreement may not be assigned by the
Servicer without the prior written consent of the Trustee and Depositor.
Section 10.08 Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the trust created by this Agreement, nor entitle
such Certificateholder's legal representative or heirs to claim an accounting
or to take any action or commence any proceeding in any court for a petition
or winding up of the trust created hereby, or otherwise affect the rights,
obligations and liabilities of the parties to this Agreement or any of them.
No Certificateholder shall have any right to vote (except as provided
in this Agreement) or in any manner otherwise control the operation and
management of the Trust Fund, or the obligations of the parties to this
Agreement, nor shall anything herein set forth or contained in the terms of
the Certificates be construed so as to constitute the Certificateholders from
time to time as partners or members of an association; nor shall any
Certificateholder be under any liability to any third party because of any
action taken by the parties to this Agreement pursuant to any provision of
this Agreement.
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No Certificateholder shall have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this
Agreement, unless such Holder previously shall have given to the Trustee a
written notice of an Event of Default and of the continuance thereof, as
provided in this Agreement, and unless the Holders of Certificates evidencing
not less than 25% of the Voting Rights evidenced by the Certificates shall
also have made written request to the Trustee to institute such action, suit
or proceeding in its own name as Trustee hereunder and shall have offered to
the Trustee such reasonable indemnity as it may require against the costs,
expenses, and liabilities to be incurred therein or thereby, and the Trustee,
for 60 days after its receipt of such notice, request and offer of indemnity
shall have neglected or refused to institute any such action, suit or
proceeding; it being understood and intended, and being expressly covenanted
by each Certificateholder with every other Certificateholder and the Trustee,
that no one or more Holders of Certificates shall have any right in any manner
whatever by virtue or by availing itself or themselves of any provisions of
this Agreement to affect, disturb or prejudice the rights of the Holders of
any other of the Certificates, or to obtain or seek to obtain priority over or
preference to any other such Holder or to enforce any right under this
Agreement, except in the manner herein provided and for the common benefit of
all Certificateholders. For the protection and enforcement of this Section
10.08, each Certificateholder and the Trustee shall be entitled to any relief
that can be given either at law or in equity. As long as any Voting Rights are
held by parties other than the Seller, its Affiliates, or its agents, Voting
Rights of Certificates held by the Seller, its Affiliates or its agents as the
Seller shall certify to the Trustee upon any entity obtaining such ownership,
will be excluded from participating in such voting arrangements, and excluded
from determining the 25% threshold.
Section 10.09 Inspection and Audit Rights.
The Servicer agrees that, on reasonable prior notice, it will permit
any representative of the Depositor or the Trustee during the Servicer's
normal business hours, to examine all the books of account, records, reports
and other papers of the Servicer relating to the Mortgage Loans, to make
copies and extracts therefrom, to cause such books to be audited by
independent certified public accountants selected by the Depositor or the
Trustee and to discuss its affairs, finances and accounts relating to the
Mortgage Loans with its officers, employees and independent public accountants
(and by this provision the Servicer hereby authorizes said accountants to
discuss with such representative such affairs, finances and accounts), all at
such reasonable times and as often as may be reasonably requested. Any
out-of-pocket expense incident to the exercise by the Depositor or the Trustee
of any right under this Section 10.09 shall be borne by the party requesting
such inspection; all other such expenses shall be borne by the Servicer.
Section 10.10 Certificates Nonassessable and Fully Paid.
It is the intention of the Depositor that Certificateholders shall
not be personally liable for obligations of the Trust Fund, that the interests
in the Trust Fund represented by the Certificates shall be nonassessable for
any reason whatsoever, and that the Certificates, upon due authentication
thereof by the Trustee pursuant to this Agreement, are and shall be deemed
fully paid.
Section 10.11 Official Record.
The Seller agrees that this Agreement is and shall remain at all
times before the time at which this Agreement terminates an official record of
the Seller as referred to in Section 13(e) of the Federal Deposit Insurance
Act.
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Section 10.12 Protection of Assets.
(a) Except for transactions and activities entered into in connection
with the securitization that is the subject of this Agreement, the trust
created by this Agreement is not authorized and has no power to:
(1) borrow money or issue debt;
(2) merge with another entity, reorganize, liquidate or sell assets;
(3) engage in any business or activities.
(b) Each party to this Agreement agrees that it will not file an
involuntary bankruptcy petition against the Trustee or the Trust Fund or
initiate any other form of insolvency proceeding until after the Certificates
have been paid in full.
Section 10.13 Qualifying Special Purpose Entity.
Notwithstanding any contrary provision of this Agreement, the Trust
Fund shall not hold any property or engage in any activity that would
disqualify the Trust Fund from being a qualifying special purpose entity under
generally accepted accounting principles.
ARTICLE ELEVEN
EXCHANGE ACT REPORTING
Section 11.01 Filing Obligations.
The Servicer, the Trustee and the Seller shall reasonably cooperate
with the Depositor in connection with the satisfaction of the Depositor's
reporting requirements under the Exchange Act with respect to the Trust Fund.
In addition to the information specified below, if so requested by the
Depositor for the purpose of satisfying its reporting obligation under the
Exchange Act, the Servicer, the Trustee and the Seller shall provide the
Depositor with (a) such information which is available to such Person without
unreasonable effort or expense and within such timeframe as may be reasonably
requested by the Depositor to comply with the Depositor's reporting
obligations under the Exchange Act and (b) to the extent such Person is a
party (and the Depositor is not a party) to any agreement or amendment
required to be filed, copies of such agreement or amendment in
▇▇▇▇▇-compatible form.
Section 11.02 Form 10-D Filings.
(a) In accordance with the Exchange Act, unless no reporting
obligation under the Exchange Act exists at such time with respect to the
Trust Fund, the Trustee shall prepare for filing and file within 15 days after
each Distribution Date (subject to permitted extensions under the Exchange
Act) with the Commission with respect to the Trust Fund, a Form 10-D with
copies of the Monthly Report and, to the extent delivered to the Trustee, no
later than five calendar days following the Distribution Date, such other
information identified by the Depositor or the Servicer, in writing, to be
filed with the Commission (such other information, the "Additional Designated
Information"). If the Depositor or Servicer directs that any Additional
Designated Information is to be filed with any Form 10-D, the Depositor or
Servicer, as the case may be, shall specify the Item on Form 10-D to which
such information is responsive and, with respect to any Exhibit to be filed on
Form 10-D, the Exhibit number. Any information to be filed on Form 10-D shall
be delivered to the Trustee in ▇▇▇▇▇-compatible form or as otherwise agreed
upon by the Trustee and the Depositor or the Servicer, as the case may be, at
the Depositor's expense, and any
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necessary conversion to ▇▇▇▇▇-compatible format will be at the Depositor's
expense. At the reasonable request of, and in accordance with the reasonable
directions of, the Depositor or the Servicer, subject to the two preceding
sentences, the Trustee shall prepare for filing and file an amendment to any
Form 10-D previously filed with the Commission with respect to the Trust Fund.
The Depositor shall sign the Form 10-D filed on behalf of the Trust Fund.
The Trustee shall prepare each Form 10-D and, no later than five
Business Days prior to the date on which such Form 10-D is required to be
filed, deliver a copy of such Form 10-D to the Depositor for review. No later
than the Business Day following the receipt thereof, the Depositor shall
notify the Trustee of any changes to be made to the Form 10-D. The Trustee
shall make any changes thereto requested by the Depositor and deliver the
final Form 10-D to the Depositor for signature no later than three Business
Days prior to the date on which such Form 10-D must be filed by the Trustee in
accordance with this Section 11.02. The Depositor shall execute the final Form
10-D and deliver the same to the Trustee via electronic mail
(▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇.▇▇▇) or facsimile no later than the Business Day
following receipt of the same (which, unless not received within such time
frame from the Trustee, shall be no later than two Business Days prior to the
date on which the Form 10-D is required to be filed), with an original
executed hard copy to follow by overnight courier.
(b) No later than each Distribution Date, any party responsible for
providing Additional Designated Information shall notify the Depositor and the
Trustee of any Form 10-D Disclosure Item, together with a description of any
such Form 10-D Disclosure Item in form and substance reasonably acceptable to
the Depositor. In addition to such information as the Servicer and the Trustee
are obligated to provide pursuant to other provisions of this Agreement, if so
requested by the Depositor, each of the Servicer and the Trustee shall provide
such information which is available to the Servicer and the Trustee, as
applicable, without unreasonable effort or expense regarding the performance
or servicing of the Mortgage Loans (in the case of the Trustee, based on the
information provided by the Servicer) as is reasonably required to facilitate
preparation of distribution reports in accordance with Item 1121 of Regulation
AB. Such information shall be provided concurrently with the Remittance
Reports in the case of the Servicer and the Monthly Statement in the case of
the Trustee, commencing with the first such report due not less than five
Business Days following such request.
(c) The Trustee shall not have any responsibility to file any items
(other than those generated by it) that have not been received in a format
suitable (or readily convertible into a format suitable) for electronic filing
via the ▇▇▇▇▇ system and shall not have any responsibility to convert any such
items to such format (other than those items generated by it or that are
readily convertible to such format). The Trustee shall have no liability to
the Certificateholders, the Trust Fund, the Servicer or the Depositor with
respect to any failure to properly prepare or file any of Form 10-D to the
extent that such failure is not the result of any negligence, bad faith or
willful misconduct on its part. The Trustee will not have any duty to verify
the accuracy or sufficiency of any information to be included in any Form 10-D
not provided by it. The Trustee shall have no liability with respect to any
failure to properly prepare and file such periodic reports resulting from or
relating to the Trustee's inability or failure to obtain any information not
resulting from its own negligence or willful misconduct.
Section 11.03 Form 8-K Filings.
The Servicer shall prepare and file on behalf of the Trust Fund any
Form 8-K required by the Exchange Act. Each Form 8-K must be signed by the
Servicer. Any reporting party identified on Exhibit T shall promptly notify
the Depositor and the Servicer (if the notifying party is not the Servicer),
but in no event later than one (1) Business Day after its occurrence, of any
Reportable Event of which it has actual knowledge. Each Person shall be deemed
to have actual knowledge of any such event to the extent that it relates to
such Person or any action or failure to act by such Person.
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Section 11.04 Form 10-K Filings.
Prior to (x) March 31, 2008 and (y) unless and until a Form 15
Suspension Notice shall have been filed, March 31st of each year thereafter
(or, in either case, such earlier date as may be required by the Exchange
Act), the Trustee shall, subject to the provisions of this Section 11.04, file
a Form 10-K, with respect to the Trust Fund. The Trustee shall prepare and
file on behalf of the Trust Fund a Form 10-K, in form and substance as
required by the Exchange Act. The Trustee shall prepare each Form 10-K and, no
later than 5 Business Days prior to the date on which such Form 10-K is
required to be filed, deliver a copy of such Form 10-K to the Depositor for
review. No later than the Business Day following the receipt thereof, the
Depositor shall notify the Trustee of any changes to be made to the Form 10-K.
The Trustee shall make any changes thereto requested by the Depositor and
deliver the final Form 10-K to the Depositor for signature no later than three
Business Days prior to the date on which such Form 10-K must be filed by the
Trustee in accordance with this Section 11.04. The Depositor shall execute the
final Form 10-K and deliver the same to the Trustee via electronic mail
(▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇.▇▇▇) or facsimile no later than Business Day following
receipt of the same (which, unless not received within such time frame from
the Trustee, shall be no later than two Business Days prior to the date on
which the From 10-K is required to be filed), with an original executed hard
copy to follow by overnight mail. Such Form 10-K shall include the Assessment
of Compliance, Attestation Report, Annual Compliance Statements and other
documentation provided by the Servicer pursuant to Sections 3.17 and 11.07, a
certification in the form attached hereto as Exhibit O-1 (the "Depositor
Certification"), which shall be signed by the senior officer of the Depositor
in charge of securitization, and an accountant's report described under
Section 11.07. Each Form 10-K shall also include any ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Certification required to be included therewith, as described in Section
11.05.
If the Item 1119 Parties listed on Exhibit T have changed since the
Closing Date, no later than March 1 of each year, the Depositor shall provide
each of the Servicer and the Trustee via electronic mail
(▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇.▇▇▇) with an updated Exhibit T setting forth the Item
1119 Parties.
As to each item of information required to be included in any Form
10-D, Form 8-K or Form 10-K, the Trustee's or Depositor's obligation to
include the information in the applicable report is subject to receipt from
the entity that is indicated in Exhibit Q as the responsible party for
providing that information, if other than the Trustee or the Depositor, as
applicable, as and when required as described above. Each of the Trustee, the
Servicer and the Depositor, as applicable, hereby agree to notify and provide
to the Trustee and the Depositor all information that is required to be
included in any Form 10-D, Form 8-K or Form 10-K, with respect to which that
entity is indicated in Exhibit Q as the responsible party for providing that
information. In the case of information to be included in the From 10-D, such
information shall be delivered to the Trustee (with a copy to the Depositor)
no later than 5 calendar days following each Distribution Date. In the case of
information to be included in the Form 8-K, such information shall be
delivered to the Depositor no later than no later 2 Business Days following
the occurrence of a reportable event. In the case of information to be
included in the From 10-K, such information, other than the documentation
provided pursuant to Sections 3.17 and 11.07, shall be delivered to the
Trustee no later than (x) March 1, 2008 (with a 15-day cure period) and (y)
unless and until a Form 15 Suspension Notice shall have been filed, March 1st
of each year thereafter. The Servicer shall be responsible for determining the
pool concentration applicable to any subservicer or originator at any time,
for purposes of disclosure as required by Items 1117 and 1119 of Regulation
AB. The Trustee shall provide electronic or paper copies of all Form 10-D, 8-K
and 10-K filings free of charge to any Certificateholder upon request.
The Trustee shall sign a certification (in the form attached hereto
as Exhibit O-2) for the benefit of the Depositor and its officers, directors
and Affiliates. The Trustee's certification shall be delivered to the
Depositor by no later than March 18th of each year (or if such day is not a
Business Day, the
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immediately preceding Business Day) and the Depositor shall deliver the
Depositor Certification to the Trustee for filing no later than March 20th of
each year (or if such day is not a Business Day, the immediately preceding
Business Day).
The Trustee shall indemnify and hold harmless the Depositor and its
officers, directors and Affiliates from and against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments and other costs and expenses arising out of or based upon (i)
a breach of the Trustee's obligations under this Section 11.04 and Section
11.07 or (ii) any material misstatement or omission contained in any
information provided by the Trustee including, without limitation, in the
certification provided by the Trustee in the form of Exhibit O-2 or the
assessment of compliance provided pursuant to Section 11.07. If the
indemnification provided for herein is unavailable or insufficient to hold
harmless the Depositor, then the Trustee, in connection with (i) a breach of
the Trustee's obligations under this Section 11.04 or Section 11.07 or (ii)
any material misstatement or omission contained in any information provided by
the Trustee including, without limitation, in the certification provided by
the Trustee in the form of Exhibit O-2, or in the assessment of compliance or
attestation report provided pursuant to Section 11.07, agrees that it shall
contribute to the amount paid or payable by the Depositor as a result of the
losses, claims, damages or liabilities of the Depositor in such proportion as
is appropriate to reflect the relative fault of the Depositor on the one hand
and the Trustee on the other. This indemnification shall survive the
termination of this Agreement or the termination of any party to this
Agreement.
The Servicer shall indemnify and hold harmless the Depositor, the
Trustee and their respective officers, directors and Affiliates from and
against any actual losses, damages, penalties, fines, forfeitures, reasonable
and necessary legal fees and related costs, judgments and other costs and
expenses that such Person may sustain based upon (i) a breach of the
Servicer's obligations under Sections 3.17, 11.07 or 11.04 or (ii) any
material misstatement or omission contained in any information provided by the
Servicer including, without limitation, in the information provided pursuant
to Sections 3.17 and 11.07. This indemnification shall survive the termination
of this Agreement or the termination of any party to this Agreement.
The Depositor shall indemnify and hold harmless the Servicer, the
Trustee and their respective officers, directors and Affiliates from and
against any actual losses, damages, penalties, fines, forfeitures, reasonable
and necessary legal fees and related costs, judgments and other costs and
expenses that such Person may sustain based upon (i) a breach of the
Depositor's obligations under this Section 11.04 or (ii) any material
misstatement or omission contained in any information provided by the
Depositor.
The Trustee will have no duty or liability to verify the accuracy or
sufficiency of any information not prepared by it included in any Form 10-D,
Form 10-K or Form 8-K. The Trustee shall have no liability with respect to any
failure to properly prepare or file any Form 10-D or Form 10-K resulting from
or relating to the Trustee's inability or failure to receive any information
in a timely manner from the party responsible for delivery of such
information. The Trustee shall have no liability with respect to any failure
to properly file any Form 10-D or 10-K resulting from or relating to the
Depositor's failure to timely comply with the provisions of this section.
Nothing herein shall be construed to require the Trustee or any officer,
director or Affiliate thereof to sign any Form 10-D, Form 10-K or Form 8-K.
Copies of all reports filed by the Trustee under the Exchange Act shall be
sent to the Depositor electronically or at the address set forth in Section
10.05. Fees and expenses incurred by the Trustee in connection with this
Section 11.04 shall not be reimbursable from the Trust Fund.
Upon any filing with the Commission, the Trustee shall promptly
deliver to the Depositor a copy of any executed report, statement or
information.
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To the extent that, following the Closing Date, the Depositor
certifies that reports and certifications differing from those required under
this Section 11.04 are necessary to comply with the reporting requirements
under the Exchange Act, the parties hereto hereby agree that each will
reasonably cooperate to amend the provisions of this Section 11.04 in order to
comply with such amended reporting requirements and such amendment of this
Section 11.04. Any such amendment may result in the reduction of the reports
executed by and filed on behalf of the Depositor under the Exchange Act.
Notwithstanding the foregoing, the Trustee shall not be obligated to enter
into any amendment pursuant to this Section that adversely affects its
obligations and immunities under this Agreement.
Each of the parties acknowledges and agrees that the purpose of
Sections 3.17, 11.07 and this Section 11.04 of this Agreement is to facilitate
compliance by the Depositor with the provisions of Regulation AB. Therefore,
each of the parties agree that (a) the obligations of the parties hereunder
shall be interpreted in such a manner as to accomplish that purpose, (b) the
parties' obligations hereunder will be supplemented and modified as necessary
to be consistent with any such amendments, interpretive advice or guidance in
respect of the requirements of Regulation AB, (c) the parties shall comply
with reasonable requests made by the Depositor for delivery of additional or
different information as the Depositor may determine in good faith is
necessary to comply with the provisions of Regulation AB, and (d) no amendment
of this Agreement shall be required to effect any such changes in the parties'
obligations as are necessary to accommodate evolving interpretations of the
provisions of Regulation AB.
Section 11.05 ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification.
Each Form 10-K shall include a certification (the "▇▇▇▇▇▇▇▇-▇▇▇▇▇
Certification") required by Rules 13a-14(d) and 15d-14(d) under the Exchange
Act (pursuant to Section 302 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules
and regulations of the Commission promulgated thereunder (including any
interpretations thereof by the Commission's staff)). No later than March 15 of
each year, beginning in 2008, the Servicer and the Trustee shall (unless such
person is the Certifying Person), and the Servicer shall cause each Reporting
Subcontractor and the Trustee shall cause each Reporting Subcontractor to,
provide to the Person who signs the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification (the
"Certifying Person") a certification (each, a "Performance Certification"), in
the form attached hereto as Exhibit R on which the Certifying Person, the
entity for which the Certifying Person acts as an officer, and such entity's
officers, directors and Affiliates (collectively with the Certifying Person,
"Certification Parties") can reasonably rely. The senior officer in charge of
the servicing function of the Servicer shall serve as the Certifying Person on
behalf of the Trust Fund. Neither the Servicer nor the Depositor will request
delivery of a certification under this clause unless the Trustee is required
under the Exchange Act to file an annual report on Form 10-K with respect to
the Trust Fund. In the event that prior to the filing date of the Form 10-K in
March of each year, the Servicer or the Depositor has actual knowledge of
information material to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification, the Servicer or the
Depositor, as the case may be, shall promptly notify the Servicer and the
Trustee. The respective parties hereto agree to cooperate with all reasonable
requests made by any Certifying Person or Certification Party in connection
with such Person's attempt to conduct any due diligence that such Person
reasonably believes to be appropriate in order to allow it to deliver any
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification or portion thereof with respect to the Trust
Fund.
Section 11.06 Form 15 Filing.
Prior to January 30 of the first year in which the Depositor is able
to do so under applicable law, the Trustee on behalf of the Depositor shall
file a Form 15 relating to the automatic suspension of reporting in respect of
the Trust Fund under the Exchange Act.
109
Section 11.07 Report on Assessment of Compliance and Attestation.
(a) On or before March 15 of each calendar year, commencing in 2008,
unless no reporting obligation under the Exchange Act exists at such time with
respect to the Trust Fund:
(i) The Servicer shall deliver to the Trustee (with a copy to
the Depositor) a report (in form and substance reasonably
satisfactory to the Trustee) regarding the Servicer's or the
Trustee's, as applicable, assessment of compliance with the
Servicing Criteria during the immediately preceding calendar year,
as required under Rules 13a-18 and 15d-18 of the Exchange Act and
Item 1122 of Regulation AB. Such report shall be signed by an
authorized officer of such Person and shall address each of the
Servicing Criteria applicable to each party specified on a
certification delivered to the Trustee substantially in the form of
Exhibit S. To the extent any of the Servicing Criteria are not
applicable to such Person, with respect to asset-backed securities
transactions taken as a whole involving such Person and that are
backed by the same asset type backing the Certificates, such report
shall include such a statement to that effect. The Trustee and the
Servicer, and each of their respective officers and directors shall
be entitled to rely upon each such servicing criteria assessment.
(ii) The Servicer shall deliver to the Trustee, and the Trustee
shall provide on its own behalf, a report of a registered public
accounting firm reasonably acceptable to the Trustee that attests
to, and reports on, the assessment of compliance made by Servicer or
the Trustee, as applicable, and delivered pursuant to the preceding
paragraphs. Such attestation shall be in accordance with Rules
1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities Act
and the Exchange Act, including, without limitation that in the
event that an overall opinion cannot be expressed, such registered
public accounting firm shall state in such report why it was unable
to express such an opinion. Such report must be available for
general use and not contain restricted use language. To the extent
any of the Servicing Criteria are not applicable to such Person,
with respect to asset-backed securities transactions taken as a
whole involving such Person and that are backed by the same asset
type backing the Certificates, such report shall include such a
statement to that effect.
(iii) The Servicer shall cause each of its Reporting
Subcontractors to deliver to the Trustee (with a copy to the
Depositor) an assessment of compliance and accountant's attestation
as and when provided in paragraphs (a) and (b) of this Section
11.07.
(iv) The Trustee shall cause each of its Reporting
Subcontractors to deliver to the Trustee and the Servicer (with a
copy to the Depositor) an assessment of compliance and accountant's
attestation as and when provided in paragraphs (a) and (b) of this
Section.
(v) The Servicer shall execute (and the Servicer shall cause
each Reporting Subcontractor to execute) a reliance certificate to
enable the Certification Parties to rely upon each (A) annual
compliance statement provided pursuant to Section 3.17, (B) annual
report on assessments of compliance with servicing criteria provided
pursuant to this Section 11.07 and (C) accountant's report provided
pursuant to this Section 11.07 and shall include a certification
that each such annual compliance statement or report discloses any
deficiencies or defaults described to the registered public
accountants of such Person to enable such accountants to render the
certificates provided for in this Section 11.07.
(vi) The Trustee shall execute (and the Trustee shall cause
each Reporting Subcontractor to execute) a reliance certificate to
enable the Certification Parties to rely upon each (A) annual report
on assessments of compliance with servicing criteria provided
pursuant to
110
this Section 11.07 and (C) accountant's report provided
pursuant to this Section 11.07 and shall include a certification
that each such report discloses any deficiencies or defaults
described to the registered public accountants of such Person to
enable such accountants to render the certificates provided for in
this Section 11.07.
(b) In the event the Servicer, the Trustee or Reporting Subcontractor
is terminated or resigns during the term of this Agreement, such Person shall
provide documents and information required by this Section 11.07 with respect
to the period of time it was subject to this Agreement or provided services
with respect to the Trust Fund, the Certificates or the Mortgage Loans.
(c) An assessment of compliance provided by a Subcontractor pursuant
to Section 11.07(a)(iii) or (iv) need not address any elements of the
Servicing Criteria other than those specified by the Servicer or the Trustee,
as applicable, pursuant to Section 11.07(a)(i).
Section 11.08 Use of Subcontractors.
(a) [Reserved].
(b) It shall not be necessary for the Servicer or the Trustee to seek
the consent of the Depositor or any other party hereto to the utilization of
any Subcontractor. The Servicer or the Trustee, as applicable, shall promptly
upon request provide to the Trustee and the Depositor (or any designee of the
Depositor, such as the Servicer or administrator) a written description (in
form and substance satisfactory to the Depositor) of the role and function of
each Subcontractor utilized by such Person, specifying (i) the identity of
each such Subcontractor, (ii) which (if any) of such Subcontractors are
"participating in the servicing function" within the meaning of Item 1122 of
Regulation AB, and (iii) which elements of the Servicing Criteria will be
addressed in assessments of compliance provided by each Subcontractor
identified pursuant to clause (ii) of this paragraph.
As a condition to the utilization of any Subcontractor determined to
be a Reporting Subcontractor, the Servicer or the Trustee, as applicable,
shall cause any such Subcontractor used by such Person for the benefit of the
Depositor to comply with the provisions of Sections 11.07 and 11.09 of this
Agreement to the same extent as if such Subcontractor were the Servicer
(except with respect to the Servicer's duties with respect to preparing and
filing any Exchange Act Reports or as the Certifying Person) or the Trustee,
as applicable. The Servicer or the Trustee, as applicable, shall be
responsible for obtaining from each Subcontractor and delivering to the
Trustee and the Servicer, any assessment of compliance and attestation
required to be delivered by such Subcontractor under Section 11.05 and Section
11.07, in each case as and when required to be delivered.
Section 11.09 Amendments.
In the event the parties to this Agreement desire to further clarify
or amend any provision of this Article 11, this Agreement shall be amended to
reflect the new agreement between the parties covering matters in this Article
11 pursuant to Section 10.01, which amendment shall not require any Opinion of
Counsel or Rating Agency confirmations or the consent of any
Certificateholder.
If, during the period that the Depositor is required to file Exchange
Act Reports with respect to the Trust Fund, the Servicer is no longer an
Affiliate of the Depositor, the Depositor shall assume the obligations and
responsibilities of the Servicer in this Article 11 with respect to the
preparation and filing of the Exchange Act Reports and/or acting as the
Certifying Person, if the Depositor has received indemnity from such successor
Servicer satisfactory to the Depositor, and such Servicer has agreed to
provide a ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification to the Depositor substantially in the
form of Exhibit U.
111
* * * * * *
112
IN WITNESS WHEREOF, the Depositor, the Trustee, and the Seller and
Servicer have caused their names to be signed hereto by their respective
officers thereunto duly authorized as of the day and year first above written.
INDYMAC MBS, INC.
as Depositor
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Associate
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Associate
INDYMAC BANK, F.S.B.
as Seller and Servicer
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
STATE OF CALIFORNIA )
: ss.:
COUNTY OF Los Angeles )
On this 27th day of April, 2007, before me, personally appeared ▇▇▇▇
▇▇▇▇▇▇▇▇, known to me to be a Vice President of IndyMac MBS, Inc., one of the
entities that executed the within instrument, and also known to me to be the
person who executed it on behalf of said entity, and acknowledged to me that
such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------
Notary Public
[NOTARIAL SEAL]
1
STATE OF CALIFORNIA )
: ss.:
COUNTY OF Orange )
On this 26th day of April, 2007, before me, personally appeared
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, known to me to be an Associate and
a Vice President, respectively, of Deutsche Bank National Trust Company, one
of the entities that executed the within instrument, and also known to me to
be the person who executed it on behalf of said entity, and acknowledged to me
that such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇
--------------------------------
Notary Public
[NOTARIAL SEAL]
2
STATE OF CALIFORNIA )
: ss.:
COUNTY OF Los Angeles )
On this 27th day of April, 2007, before me, personally appeared ▇▇▇▇
▇▇▇▇▇▇▇▇, known to me to be a Vice President of IndyMac Bank, F.S.B., one of
the entities that executed the within instrument, and also known to me to be
the person who executed it on behalf of said entity, and acknowledged to me
that such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------
Notary Public
[NOTARIAL SEAL]
3
Schedule I
MORTGAGE LOAN SCHEDULE [DELIVERED AT CLOSING TO TRUSTEE]
S-I-1
Schedule II
INDYMAC MBS, INC. MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-AR11
Representations and Warranties of the Seller/Servicer
Indy Mac Bank, F.S.B. ("IndyMac") hereby makes the representations
and warranties set forth in this Schedule II to the Depositor and the Trustee,
as of the Closing Date. Capitalized terms used but not otherwise defined in
this Schedule II shall have the meanings assigned thereto in the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement") relating to the
above-referenced Series, among IndyMac, as seller and servicer, IndyMac MBS,
Inc., as depositor, and Deutsche Bank National Trust Company, as trustee.
(1) IndyMac is duly organized as a federally insured savings
bank and is validly existing and in good standing under the laws of
the United States of America and is duly authorized and qualified to
transact any business contemplated by the Pooling and Servicing
Agreement to be conducted by IndyMac in any state in which a
Mortgaged Property is located or is otherwise not required under
applicable law to effect such qualification and, in any event, is in
compliance with the doing business laws of any such state, to the
extent necessary to ensure its ability to enforce each Mortgage Loan,
to service the Mortgage Loans in accordance with the Pooling and
Servicing Agreement and to perform any of its other obligations under
the Pooling and Servicing Agreement in accordance with the terms
thereof.
(2) IndyMac has the full corporate power and authority to
sell and service each Mortgage Loan, and to execute, deliver and
perform, and to enter into and consummate the transactions
contemplated by the Pooling and Servicing Agreement and has duly
authorized by all necessary corporate action on the part of IndyMac
the execution, delivery and performance of the Pooling and Servicing
Agreement; and the Pooling and Servicing Agreement, assuming the due
authorization, execution and delivery thereof by the other parties
thereto, constitutes a legal, valid and binding obligation of
IndyMac, enforceable against IndyMac in accordance with its terms,
except that (a) the enforceability thereof may be limited by
bankruptcy, insolvency, moratorium, receivership and other similar
laws relating to creditors' rights generally and (b) the remedy of
specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of
the court before which any proceeding therefor may be brought.
(3) The execution and delivery of the Pooling and Servicing
Agreement by IndyMac, the sale and servicing of the Mortgage Loans by
IndyMac under the Pooling and Servicing Agreement, the consummation
of any other of the transactions contemplated by the Pooling and
Servicing Agreement, and the fulfillment of or compliance with the
terms thereof are in the ordinary course of business of IndyMac and
will not (A) result in a material breach of any term or provision of
the charter or by-laws of IndyMac or (B) materially conflict with,
result in a material breach, violation or acceleration of, or result
in a material default under, any other material agreement or
instrument to which IndyMac is a party or by which it may be bound,
or (C) constitute a material violation of any statute, order or
regulation applicable to IndyMac of any court, regulatory body,
administrative agency or governmental body having jurisdiction over
IndyMac (including the OTS, the Federal Deposit Insurance Corporation
or any other governmental entity having regulatory authority over
IndyMac); and IndyMac is not in breach or violation of any material
indenture or other material agreement or instrument, or in violation
of any statute, order or regulation of any court, regulatory body,
administrative agency or
S-II-1
governmental body having jurisdiction over it (including the OTS,
the Federal Deposit Insurance Corporation or any other governmental
entity having regulatory authority over IndyMac) which breach or
violation may materially impair IndyMac's ability to perform or
meet any of its obligations under the Pooling and Servicing Agreement.
(4) IndyMac is an approved servicer of conventional mortgage
loans for FNMA or FHLMC or is a mortgagee approved by the Secretary
of Housing and Urban Development pursuant to Sections 203 and 211 of
the National Housing Act.
(5) No litigation is pending or, to the best of IndyMac's
knowledge, threatened against IndyMac that would prohibit the
execution or delivery of, or performance under, the Pooling and
Servicing Agreement by IndyMac.
(6) IndyMac is a member of MERS in good standing, and will
comply in all material respects with the rules and procedures of MERS
in connection with the servicing of the MERS Mortgage Loans for as
long as such Mortgage Loans are registered with MERS.
S-II-2
Schedule III
INDYMAC MBS, INC.
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-AR11
Representations and Warranties as to the Mortgage Loans
IndyMac Bank, F.S.B. ("IndyMac") hereby makes the representations and
warranties set forth in this Schedule III to the Depositor and the Trustee, as
of the Closing Date or if so specified in this Schedule III, as of the Cut-off
Date with respect to each Mortgage Loan. Capitalized terms used but not
otherwise defined in this Schedule III shall have the meanings assigned to
them in the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement") relating to the above-referenced Series, among IndyMac, as seller
and servicer, IndyMac MBS, Inc., as depositor, and Deutsche Bank National
Trust Company, as trustee.
(1) The information set forth on Schedule I to the Pooling
and Servicing Agreement with respect to each Mortgage Loan is true
and correct in all material respects as of the Closing Date.
(2) All regularly scheduled monthly payments due with
respect to each Mortgage Loan up to and including the Due Date before
the Cut-off Date have been made; and as of the Cut-off Date, no
Mortgage Loan had a regularly scheduled monthly payment that was 60
or more days Delinquent during the twelve months before the Cut-off
Date.
(3) With respect to any Mortgage Loan that is not a
Cooperative Loan, each Mortgage is a valid and enforceable first lien
on the Mortgaged Property subject only to (a) the lien of
nondelinquent current real property taxes and assessments and liens
or interests arising under or as a result of any federal, state or
local law, regulation or ordinance relating to hazardous wastes or
hazardous substances and, if the related Mortgaged Property is a unit
in a condominium project or planned unit development, any lien for
common charges permitted by statute or homeowner association fees,
(b) covenants, conditions and restrictions, rights of way, easements
and other matters of public record as of the date of recording of
such Mortgage, such exceptions appearing of record being generally
acceptable to mortgage lending institutions in the area wherein the
related Mortgaged Property is located or specifically reflected in
the appraisal made in connection with the origination of the related
Mortgage Loan, and (c) other matters to which like properties are
commonly subject which do not materially interfere with the benefits
of the security intended to be provided by such Mortgage.
(4) Immediately before the assignment of the Mortgage Loans
to the Depositor, the Seller had good title to, and was the sole
owner of, each Mortgage Loan free and clear of any pledge, lien,
encumbrance or security interest and had full right and authority,
subject to no interest or participation of, or agreement with, any
other party, to sell and assign the same pursuant to the Pooling and
Servicing Agreement.
(5) As of the Closing Date, there was no delinquent tax or
assessment lien against the related Mortgaged Property.
(6) There is no valid offset, defense or counterclaim to any
Mortgage Note or Mortgage, including the obligation of the Mortgagor
to pay the unpaid principal of or interest on such Mortgage Note.
S-IV-1
(7) There are no mechanics' liens or claims for work, labor
or material affecting any Mortgaged Property which are or may be a
lien prior to or equal with, the lien of such Mortgage, except those
which are insured against by the title insurance policy referred to
in item (11) below.
(8) No Mortgaged Property has been materially damaged by
water, fire, earthquake, windstorm, flood, tornado or similar
casualty (excluding casualty from the presence of hazardous wastes or
hazardous substances, as to which the Seller makes no representation)
so as to affect adversely the value of the related Mortgaged Property
as security for the Mortgage Loan.
(9) Each Mortgage Loan at origination complied in all
material respects with applicable local, state and federal laws and
regulations, including usury, equal credit opportunity, real estate
settlement procedures, truth-in-lending, and disclosure laws, or any
noncompliance does not have a material adverse effect on the value of
the related Mortgage Loan.
(10) The Seller has not modified the Mortgage in any
material respect (except that a Mortgage Loan may have been modified
by a written instrument which has been recorded or submitted for
recordation, if necessary, to protect the interests of the
Certificateholders and which has been delivered to the Trustee);
satisfied, cancelled or subordinated such Mortgage in whole or in
part; released the related Mortgaged Property in whole or in part
from the lien of such Mortgage; or executed any instrument of
release, cancellation, modification or satisfaction with respect
thereto.
(11) A lender's policy of title insurance together with a
condominium endorsement and extended coverage endorsement, if
applicable, in an amount at least equal to the Cut-off Date Principal
Balance of each such Mortgage Loan or a commitment (binder) to issue
the same was effective on the date of the origination of each
Mortgage Loan and each such policy is valid and remains in full force
and effect.
(12) Each Mortgage Loan was originated (within the meaning
of Section 3(a)(41) of the Securities Exchange Act of 1934, as
amended) by an entity that satisfied at the time of origination the
requirements of Section 3(a)(41) of the Securities Exchange Act of
1934, as amended.
(13) All of the improvements which were included for the
purpose of determining the Appraised Value of the Mortgaged Property
lie wholly within the boundaries and building restriction lines of
such property, and no improvements on adjoining properties encroach
upon the Mortgaged Property, unless such failure to be wholly within
such boundaries and restriction lines or such encroachment, as the
case may be, does not have a material effect on the value of the
Mortgaged Property.
(14) As of the date of origination of each Mortgage Loan, no
improvement located on or being part of the Mortgaged Property is in
violation of any applicable zoning law or regulation unless such
violation would not have a material adverse effect on the value of
the related Mortgaged Property. All inspections, licenses and
certificates required to be made or issued with respect to all
occupied portions of the Mortgaged Property and, with respect to the
use and occupancy of the same, including certificates of occupancy
and fire underwriting certificates, have been made or obtained from
the appropriate authorities, unless the lack thereof would not have a
material adverse effect on the value of the Mortgaged Property.
(15) The Mortgage Note and the related Mortgage are genuine,
and each is the legal, valid and binding obligation of the maker
thereof, enforceable in accordance with its terms and under
applicable law.
A-2
(16) The proceeds of the Mortgage Loan have been fully
disbursed and there is no requirement for future advances thereunder.
(17) The related Mortgage contains customary and enforceable
provisions which render the rights and remedies of the holder thereof
adequate for the realization against the Mortgaged Property of the
benefits of the security, including, (i) in the case of a Mortgage
designated as a deed of trust, by trustee's sale, and (ii) otherwise
by judicial foreclosure.
(18) With respect to each Mortgage constituting a deed of
trust, a trustee, duly qualified under applicable law to serve as
such, has been properly designated and currently so serves and is
named in such Mortgage, and no fees or expenses are or will become
payable by the Certificateholders to the trustee under the deed of
trust, except in connection with a trustee's sale after default by
the Mortgagor.
(19) At the Closing Date, the improvements upon each
Mortgaged Property are covered by a valid and existing hazard
insurance policy with a generally acceptable carrier that provides
for fire and extended coverage and coverage for such other hazards as
are customarily required by institutional single family mortgage
lenders in the area where the Mortgaged Property is located, and the
Seller has received no notice that any premiums due and payable
thereon have not been paid; the Mortgage obligates the Mortgagor
thereunder to maintain all such insurance including flood insurance
at the Mortgagor's cost and expense. Anything to the contrary in this
item (19) notwithstanding, no breach of this item (19) shall be
deemed to give rise to any obligation of the Seller to repurchase or
substitute for such affected Mortgage Loan or Loans so long as the
Servicer maintains a blanket policy pursuant to the second paragraph
of Section 3.10(a) of the Pooling and Servicing Agreement.
(20) If at the time of origination of each Mortgage Loan,
the related Mortgaged Property was in an area then identified in the
Federal Register by the Federal Emergency Management Agency as having
special flood hazards, a flood insurance policy in a form meeting the
then-current requirements of the Flood Insurance Administration is in
effect with respect to the Mortgaged Property with a generally
acceptable carrier.
(21) There is no proceeding pending or threatened for the
total or partial condemnation of any Mortgaged Property, nor is such
a proceeding currently occurring.
(22) There is no material event which, with the passage of
time or with notice and the expiration of any grace or cure period,
would constitute a material non-monetary default, breach, violation
or event of acceleration under the Mortgage or the related Mortgage
Note; and the Seller has not waived any material non-monetary
default, breach, violation or event of acceleration.
(23) Each Mortgage File contains an appraisal of the related
Mortgaged Property in a form acceptable to FNMA or FHLMC.
(24) Any leasehold estate securing a Mortgage Loan has a
stated term of not less than five years in excess of the term of the
related Mortgage Loan.
(25) Each Mortgage Loan was selected from among the
outstanding adjustable rate one- to four-family mortgage loans in the
Seller's portfolio at the Closing Date as to which the
representations and warranties made with respect to the Mortgage
Loans set forth in this Schedule III can be made. No such selection
was made in a manner intended to adversely affect the interests of
the Certificateholders.
A-3
(26) None of the Mortgage Loans are Cooperative Loans.
(27) None of the Mortgage Loans is a "high cost" loan,
"covered" loan or any other similarly designated loan as defined
under any state, local or federal law, as defined by applicable
predatory and abusive lending laws.
(28) No proceeds from any Mortgage Loan underlying the
Certificates were used to finance single-premium credit insurance
policies.
(29) None of the Mortgage Notes related to the Mortgage
Loans impose a Prepayment Charge on the related Mortgage Loan for a
term in excess of five years from the origination of the Mortgage
Loan.
(30) Each Mortgage Loan was in compliance with the
anti-predatory lending eligibility for purchase requirements of
▇▇▇▇▇▇ Mae's Selling Guide.
(31) Each Mortgage Loan has been underwritten and serviced
substantially in accordance with the Seller's guidelines, subject to
such variances as are reflected on the Mortgage Loan Schedule or that
the Seller has approved.
(32) No Mortgage Loan is a High Cost Loan or Covered Loan,
as applicable (as such terms are defined in the then-current version
of Standard & Poor's LEVELS(R) Glossary, which is now Version 5.7
Revised, Appendix E) and no Mortgage Loan originated on or after Oct.
1, 2002 through March 6, 2003 is governed by the Georgia Fair Lending
Act.
(33) The Pooling and Servicing Agreement creates a valid and
continuing "security interest" (as defined in Section 1-201(37) of
the UCC) in each Mortgage Note in favor of the Trustee, which
security interest is prior to all other liens and is enforceable as
such against creditors of and purchasers from the Depositor. Each
Mortgage Note constitutes "promissory notes" (as defined in Section
9-102(a)(65) of the UCC). Immediately before the assignment of each
Mortgage Note to the Trustee, the Depositor had good and marketable
title to such Mortgage Note free and clear of any lien, claim,
encumbrance of any Person. All original executed copies of each
Mortgage Note have been or shall be delivered to the Trustee within
five Business Days following the Closing Date. Other than the
security interest granted to the Trustee, the Depositor has not
pledged, assigned, sold, granted a security interest in, or otherwise
conveyed any Mortgage Note. The Depositor has not authorized the
filing of and is not aware of any financing statements against the
Depositor that include a description of any of the Mortgage Notes.
The Depositor is not aware of any judgment or tax liens filed against
the Depositor. None of the Mortgage Notes has any marks or notations
indicating that they have been pledged, assigned or otherwise
conveyed to any Person other than the Trustee.
(34) To the best of the Seller's knowledge, there was no
fraud involved in the origination of any Mortgage Loan by the
mortgagee or by the Mortgagor, any appraiser or any other party
involved in the origination of the Mortgage Loan.
(35) Each Mortgage Loan constitutes a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code.
(36) Each Mortgage Loan at the time it was made complied in
all material respects with applicable local, state, and federal laws,
including, but not limited to, all applicable predatory and abusive
lending laws.
A-4
(37) No Mortgage Loan is subject to the requirements of the
Home Ownership and Equity Protection Act of 1994.
(38) No Mortgage Loan is a "High-Cost Home Loan" as defined
in any of the following statutes: the Georgia Fair Lending Act, as
amended (the "Georgia Act"), the New York Banking Law 6-1, the
Arkansas Home Loan Protection Act effective July 16, 2003 (Act 1340
of 2003), the Kentucky high-cost home loan statute effective June 24,
2003 (Ky. Rev. Stat. Section 360.100), the New Jersey Home Ownership
Act effective November 27, 2003 (N.J.S.A. 46:10B-22 et seq.), or the
New Mexico Home Loan Protection Act effective January 1, 2004 (N.M.
Stat. ▇▇▇ ▇▇.▇▇. 58-21A-1 et seq.). No Mortgage Loan subject to the
Georgia Act and secured by owner occupied real property or an owner
occupied manufactured home located in the state of Georgia was
originated (or modified) on or after October 1, 2002 through and
including March 6, 2003. No Mortgage Loan is a "High-Risk Home Loan"
as defined in the Illinois High-Risk Home Loan Act effective January
1, 2004 (815 Ill. Comp. Stat. 137/1 et seq.). None of the Mortgage
Loans that are secured by property located in the State of Illinois
are in violation of the provisions of the Illinois Interest Act (815
Ill. Comp. Stat. 205/1 et seq.).
(39) None of the Mortgage Loans is a "high cost" loan,
"covered" loan (excluding home loans defined as "covered home loans"
in the New Jersey Home Ownership Security Act of 2002 that were
originated between November 26, 2003 and July 7, 2004), "high risk
home" or "predatory" loan or any other similarly designated loan as
defined under any state, local or federal law, as defined by
applicable predatory and abusive lending laws.
A-5
SCHEDULE IV
[Reserved].
S-IV-1
SCHEDULE V
FORM OF MONTHLY REPORT
[On File with the Trustee]
S-V-1
EXHIBIT A
[FORM OF SENIOR CERTIFICATE (OTHER THAN NOTIONAL AMOUNT CERTIFICATES)]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
[UNTIL THIS CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING
UNDERWRITING, NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE
TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A
REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT, AND IS NOT
INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF, AN EMPLOYEE BENEFIT PLAN
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR
A PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE, OR AN OPINION OF
COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, UNTIL THIS CERTIFICATE
HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING, ANY PURPORTED
TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF A BENEFIT PLAN OR ARRANGEMENT
SUBJECT TO ERISA OR TO SECTION 4975 OF THE CODE WITHOUT THE OPINION OF COUNSEL
SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO
EFFECT.]
A-1
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Certificate Balance of this
Certificate ("Denomination") : $
Initial Certificate Balances of all
Certificates of this Class : $
CUSIP :
Interest Rate : %
Maturity Date :
INDYMAC MBS, INC.
IndyMac INDX Mortgage Loan Trust 200_-_
Mortgage Pass-Through Certificates, Series 200_-_
Class [__]
evidencing a percentage interest in the
distributions allocable to the Certificates of the
above-referenced Class with respect to a Trust Fund
consisting primarily of a pool of conventional mortgage
loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties.
IndyMac MBS, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as
set forth herein or in the Agreement (defined below). Accordingly, the
Certificate Balance at any time may be less than the Certificate Balance as
set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Seller, the Servicer
or the Trustee referred to below or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by
any governmental agency or instrumentality.
This certifies that ____________________ is the registered owner of
the Percentage Interest evidenced by this Certificate (obtained by dividing
the denomination of this Certificate by the aggregate Initial Certificate
Balances of all Certificates of the Class to which this Certificate belongs)
in certain monthly distributions with respect to a Trust Fund consisting
primarily of the Mortgage Loans deposited by IndyMac MBS, Inc. (the
"Depositor"). The Trust Fund was created pursuant to a Pooling and Servicing
Agreement dated as of the Cut-off Date specified above (the "Agreement") among
the Depositor, IndyMac Bank, F.S.B., as seller (in such capacity, the
"Seller") and as servicer (in such capacity, the "Servicer"), and Deutsche
Bank National Trust Company, as trustee (the "Trustee"). To the extent not
defined herein, the capitalized terms used herein have the meanings assigned
in the Agreement. This Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
A-2
[Until this certificate has been the subject of an ERISA-Qualifying
Underwriting, no transfer of a Certificate of this Class shall be made unless
the Trustee shall have received either (i) a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Trustee, to the effect that such transferee is not an
employee benefit plan subject to Section 406 of ERISA or Section 4975 of the
Code, or a person investing on behalf of or with plan assets of any such plan,
which representation letter shall not be an expense of the Trustee or the
Servicer, or (ii) in the case of any such Certificate presented for
registration in the name of an employee benefit plan subject to ERISA or
Section 4975 of the Code (or comparable provisions of any subsequent
enactments), or a trustee of any such plan or any other person acting on
behalf of any such plan, an Opinion of Counsel satisfactory to the Trustee to
the effect that the purchase and holding of such Certificate will not result
in a nonexempt prohibited transaction under Section 406 of ERISA or Section
4975 of the Code and will not subject the Trustee or the Servicer to any
obligation in addition to those undertaken in the Agreement, which Opinion of
Counsel shall not be an expense of the Trustee, the Servicer, or the Trust
Fund. Notwithstanding anything else to the contrary herein, until this
certificate has been the subject of an ERISA-Qualifying Underwriting, any
purported transfer of a Certificate of this Class to or on behalf of an
employee benefit plan subject to ERISA or to the Code without the opinion of
counsel satisfactory to the Trustee as described above shall be void and of no
effect.]
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
A-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated: ____________, 20__
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By ______________________________
Countersigned:
By ___________________________
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
A-4
EXHIBIT B
[FORM OF SUBORDINATED CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN
CERTIFICATES AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
[THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE
WITHOUT REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION
EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH
THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.]
[UNTIL THIS CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING
UNDERWRITING, NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE
TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A
REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT, AND IS NOT
INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF, AN EMPLOYEE BENEFIT PLAN
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR
A PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE, OR AN OPINION OF
COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, UNTIL THIS CERTIFICATE
HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING, ANY PURPORTED
TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF A BENEFIT PLAN OR ARRANGEMENT
SUBJECT TO ERISA OR TO SECTION 4975 OF THE CODE WITHOUT THE OPINION OF COUNSEL
SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO
EFFECT.]
[NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED
UNLESS THE TRANSFEREE REPRESENTS TO THE TRUSTEE THAT SUCH TRANSFEREE IS NOT
AND IS NOT INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR, IF THE
CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING,
B-1
DELIVERS A REPRESENTATION IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT
REFERRED TO HEREIN, OR DELIVERS TO THE TRUSTEE AN OPINION OF COUNSEL IN
ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER
OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO
ERISA OR TO SECTION 4975 OF THE CODE WITHOUT THE OPINION OF COUNSEL
SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO
EFFECT.]
B-2
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Certificate Balance of this
Certificate ("Denomination") : $
Initial Certificate Balances of all
Certificates of this Class : $
CUSIP :
INDYMAC MBS, INC.
IndyMac INDX Mortgage Loan Trust 200_-_
Mortgage Pass-Through Certificates, Series 200_-_
Class [___]
evidencing a percentage interest in the
distributions allocable to the Certificates of the
above-referenced Class with respect to a Trust Fund
consisting primarily of a pool of conventional mortgage
loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties.
IndyMac MBS, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as set forth
herein or in the Agreement (defined below). Accordingly, the Certificate
Balance at any time may be less than the Certificate Balance as set forth
herein. This Certificate does not evidence an obligation of, or an interest
in, and is not guaranteed by the Depositor, the Seller, the Servicer or the
Trustee referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that __________________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate Initial Certificate Balances
of the denominations of all Certificates of the Class to which this
Certificate belongs) in certain monthly distributions with respect to a Trust
Fund consisting primarily of the Mortgage Loans deposited by IndyMac MBS, Inc.
(the "Depositor"). The Trust Fund was created pursuant to a Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
"Agreement") among the Depositor, IndyMac Bank, F.S.B., as seller (in such
capacity, the "Seller"), and as servicer (in such capacity, the "Servicer"),
and Deutsche Bank National Trust Company, as trustee (the "Trustee"). To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
[No transfer of a Certificate of this Class shall be made unless such transfer
is made pursuant to an effective registration statement under the Securities
Act and any applicable state securities laws or is
B-3
exempt from the registration requirements under said Act and such laws. In the
event that a transfer is to be made in reliance upon an exemption from the
Securities Act and such laws, in order to assure compliance with the
Securities Act and such laws, the Certificateholder desiring to effect such
transfer and such Certificateholder's prospective transferee shall each
certify to the Trustee in writing the facts surrounding the transfer. In the
event that such a transfer is to be made within three years from the date of
the initial issuance of Certificates pursuant hereto, there shall also be
delivered (except in the case of a transfer pursuant to Rule 144A of the
Securities Act) to the Trustee an Opinion of Counsel that such transfer may be
made pursuant to an exemption from the Securities Act and such state
securities laws, which Opinion of Counsel shall not be obtained at the expense
of the Trustee, the Seller, the Servicer or the Depositor. The Holder hereof
desiring to effect such transfer shall, and does hereby agree to, indemnify
the Trustee and the Depositor against any liability that may result if the
transfer is not so exempt or is not made in accordance with such federal and
state laws.]
[Until this certificate has been the subject of an ERISA-Qualifying
Underwriting, no transfer of a Certificate of this Class shall be made unless
the Trustee shall have received either (i) a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Trustee, to the effect that such transferee is not an
employee benefit plan subject to Section 406 of ERISA or Section 4975 of the
Code, or a person investing on behalf of or with plan assets of any such plan,
which representation letter shall not be an expense of the Trustee or the
Servicer, or (ii) in the case of any such Certificate presented for
registration in the name of an employee benefit plan subject to ERISA or
Section 4975 of the Code (or comparable provisions of any subsequent
enactments), or a trustee of any such plan or any other person acting on
behalf of any such plan, an Opinion of Counsel satisfactory to the Trustee to
the effect that the purchase and holding of such Certificate will not result
in a nonexempt prohibited transaction under Section 406 of ERISA or Section
4975 of the Code and will not subject the Trustee or the Servicer to any
obligation in addition to those undertaken in the Agreement, which Opinion of
Counsel shall not be an expense of the Trustee, the Servicer, or the Trust
Fund. Notwithstanding anything else to the contrary herein, until this
certificate has been the subject of an ERISA-Qualifying Underwriting, any
purported transfer of a Certificate of this Class to or on behalf of an
employee benefit plan subject to ERISA or to the Code without the opinion of
counsel satisfactory to the Trustee as described above shall be void and of no
effect.]
[No transfer of a Certificate of this Class shall be made unless the Trustee
shall have received either (i) a representation [letter] from the transferee
of such Certificate, acceptable to and in form and substance satisfactory to
the Trustee, to the effect that such transferee is not an employee benefit
plan or other benefit plan subject to Section 406 of ERISA or Section 4975 of
the Code, or a person acting on behalf of or investing plan assets of any such
plan, which representation letter shall not be an expense of the Trustee or
the Servicer, (ii) if the purchaser is an insurance company and the
Certificate has been the subject of an ERISA-Qualifying Underwriting, a
representation that the purchaser is an insurance company which is purchasing
such Certificates with funds contained in an "insurance company general
account" (as such term is defined in Section V(e) of Prohibited Transaction
Class Exemption 95-60 ("PTCE 95-60")) and that the purchase and holding of
such Certificates are covered under Sections I and III of PTCE 95-60 or (iii)
in the case of any such Certificate presented for registration in the name of
an employee benefit plan subject to ERISA or Section 4975 of the Code (or
comparable provisions of any subsequent enactments), or a trustee of any such
plan or any other person acting on behalf of any such plan, an Opinion of
Counsel satisfactory to the Trustee to the effect that the purchase or holding
of such Certificate will not result in a nonexempt prohibited transaction
under ERISA or Section 4975 of the Code and will not subject the Trustee or
the Servicer to any obligation in addition to those undertaken in the
Agreement, which Opinion of Counsel shall not be an expense of the Trustee,
the Servicer or the Trust Fund. Notwithstanding anything else to the contrary
herein, any purported transfer of a Certificate of this Class to or on behalf
of an employee benefit plan subject to ERISA or to Section 4975 of the Code
B-4
without the opinion of counsel satisfactory to the Trustee as described above
shall be void and of no effect.]
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement or
be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
B-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated: ____________, 20__
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By ____________________________
Countersigned:
By ___________________________
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
B-6
EXHIBIT C
[FORM OF CLASS A-R CERTIFICATE]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED
UNLESS THE PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN
ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED
UNLESS THE TRANSFEREE REPRESENTS TO THE TRUSTEE THAT SUCH TRANSFEREE IS NOT
AND IS NOT INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR, IF SUCH
TRANSFEREE IS AN INSURANCE COMPANY, DELIVERS A REPRESENTATION IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN, OR DELIVERS TO THE
TRUSTEE AN OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE
AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY
HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN
EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO SECTION 4975 OF THE CODE WITHOUT
THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE
VOID AND OF NO EFFECT.
C-1
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Certificate Balance of this
Certificate ("Denomination") : $
Initial Certificate Balances of all
Certificates of this Class : $
CUSIP :
INDYMAC MBS, INC.
IndyMac INDX Mortgage Loan Trust 200_-_
Mortgage Pass-Through Certificates, Series 200_-_
evidencing the distributions allocable to the Class
A-R Certificates with respect to a Trust Fund consisting
primarily of a pool of conventional mortgage loans (the
"Mortgage Loans") secured by first liens on one- to
four-family residential properties.
IndyMac MBS, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as set forth
herein or in the Agreement (defined below). Accordingly, the Certificate
Balance at any time may be less than the Certificate Balance as set forth
herein. This Certificate does not evidence an obligation of, or an interest
in, and is not guaranteed by the Depositor, the Seller, the Servicer or the
Trustee referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that _______________ is the registered owner of the Percentage
Interest (obtained by dividing the denomination of this Certificate by the
aggregate Initial Certificate Balances of the denominations of all
Certificates of the Class to which this Certificate belongs) in certain
monthly distributions with respect to a Trust Fund consisting of the Mortgage
Loans deposited by IndyMac MBS, Inc. (the "Depositor"). The Trust Fund was
created pursuant to a Pooling and Servicing Agreement dated as of the Cut-off
Date specified above (the "Agreement") among the Depositor, IndyMac Bank,
F.S.B., as seller (in such capacity, the "Seller") and as servicer (in such
capacity, the "Servicer"), and Deutsche Bank National Trust Company, as
trustee (the "Trustee"). To the extent not defined herein, the capitalized
terms used herein have the meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the Trust Fund
will be made only upon presentment and surrender of this Class A-R Certificate
at the Corporate Trust Office.
No transfer of a Class A-R Certificate shall be made unless the Trustee shall
have received either (i) a representation letter from the transferee of such
Certificate, acceptable to and in form and substance
C-2
satisfactory to the Trustee, to the effect that such transferee is not an
employee benefit plan subject to Section 406 of ERISA or Section 4975 of the
Code, nor a person investing on behalf of or with plan assets of any such
plan, which representation letter shall not be an expense of the Trustee or
the Servicer, (ii) if the purchaser is an insurance company, a representation
that the purchaser is an insurance company which is purchasing such
Certificate with funds contained in an "insurance company general account" (as
such term is defined in Section V(e) of Prohibited Transaction Class Exemption
95-60 ("PTCE 95-60")) and that the purchase and holding of such Certificate
are covered under Sections I and III of PTCE 95-60 or (iii) in the case of any
such Certificate presented for registration in the name of an employee benefit
plan subject to ERISA or Section 4975 of the Code (or comparable provisions of
any subsequent enactments), or a trustee of any such plan or any other person
acting on behalf of any such plan, an Opinion of Counsel satisfactory to the
Trustee to the effect that the purchase or holding of such Class A-R
Certificate will not result in a nonexempt prohibited transaction under
Section 406 of ERISA or Section 4975 of the Code and will not subject the
Trustee or the Servicer to any obligation in addition to those undertaken in
the Agreement, which Opinion of Counsel shall not be an expense of the
Trustee, the Servicer or the Trust Fund. Notwithstanding anything else to the
contrary herein, any purported transfer of a Class A-R Certificate to or on
behalf of an employee benefit plan subject to ERISA or to Section 4975 of the
Code without the opinion of counsel satisfactory to the Trustee as described
above shall be void and of no effect.
Each Holder of this Class A-R Certificate will be deemed to have agreed to be
bound by the restrictions of the Agreement, including but not limited to the
restrictions that (i) each person holding or acquiring any Ownership Interest
in this Class A-R Certificate must be a Permitted Transferee, (ii) no
Ownership Interest in this Class A-R Certificate may be transferred without
delivery to the Trustee of (a) a transfer affidavit of the proposed transferee
and (b) a transfer certificate of the transferor, each of such documents to be
in the form described in the Agreement, (iii) each person holding or acquiring
any Ownership Interest in this Class A-R Certificate must agree to require a
transfer affidavit and to deliver a transfer certificate to the Trustee as
required pursuant to the Agreement, (iv) each person holding or acquiring an
Ownership Interest in this Class A-R Certificate must agree not to transfer an
Ownership Interest in this Class A-R Certificate if it has actual knowledge
that the proposed transferee is not a Permitted Transferee and (v) any
attempted or purported transfer of any Ownership Interest in this Class A-R
Certificate in violation of such restrictions will be absolutely null and void
and will vest no rights in the purported transferee.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement or
be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
C-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated: ____________, 20__
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By ___________________________
Countersigned:
By ___________________________
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
C-4
EXHIBIT D
[FORM OF NOTIONAL AMOUNT CERTIFICATES].
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
[UNTIL THIS CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING
UNDERWRITING, NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE
TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A
REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AND IS NOT
INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF AN EMPLOYEE BENEFIT PLAN SUBJECT
TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR A PLAN
SUBJECT TO SECTION 4975 OF THE CODE, OR AN OPINION OF COUNSEL IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING
ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS
CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO
SECTION 4975 OF THE CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE
TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.]
THIS CERTIFICATE HAS NO PRINCIPAL BALANCE AND IS NOT ENTITLED TO ANY
DISTRIBUTIONS IN RESPECT OF PRINCIPAL.
D-1
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Notional Amount of this
Certificate ("Denomination") : $
Initial Notional Amount of all
Certificates of this Class : $
CUSIP :
Interest Rate : %
Maturity Date :
INDYMAC MBS, INC.
Residential Asset Securitization Trust 200_-_
Mortgage Pass-Through Certificates, Series 200_-_
Class [__]
evidencing a percentage interest in the
distributions allocable to the Certificates of the
above-referenced Class with respect to a Trust Fund
consisting primarily of a pool of conventional mortgage
loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties.
IndyMac MBS, Inc., as Depositor
This Certificate does not evidence an obligation of, or an interest
in, and is not guaranteed by the Depositor, the Seller, the Servicer or the
Trustee referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
D-2
This certifies that __________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate Initial Notional Amounts of
all Certificates of the Class to which this Certificate belongs) in certain
monthly distributions with respect to a Trust Fund consisting primarily of the
Mortgage Loans deposited by IndyMac MBS, Inc. (the "Depositor"). The Trust
Fund was created pursuant to a Pooling and Servicing Agreement dated as of the
Cut-off Date specified above (the "Agreement") among the Depositor, IndyMac
Bank, F.S.B., as seller (in such capacity, the "Seller") and as servicer (in
such capacity, the "Servicer"), and Deutsche Bank National Trust Company, as
trustee (the "Trustee"). To the extent not defined herein, the capitalized
terms used herein have the meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
[Until this certificate has been the subject of an ERISA-Qualifying
Underwriting, no transfer of a Certificate of this Class shall be made unless
the Trustee shall have received either (i) a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Trustee, to the effect that such transferee is not an
employee benefit plan subject to Section 406 of ERISA or Section 4975 of the
Code, nor a person investing on behalf of or with plan assets of any such
plan, which representation letter shall not be an expense of the Trustee or
the Servicer, or (ii) in the case of any such Certificate presented for
registration in the name of an employee benefit plan subject to ERISA or
Section 4975 of the Code (or comparable provisions of any subsequent
enactments), or a trustee of any such plan or any other person acting on
behalf of any such plan, an Opinion of Counsel satisfactory to the Trustee and
the Servicer to the effect that the purchase or holding of such Certificate
will not result in a nonexempt prohibited transaction under Section 406 of
ERISA or Section 4975 of the Code and will not subject the Trustee or the
Servicer to any obligation in addition to those undertaken in the Agreement,
which Opinion of Counsel shall not be an expense of the Trustee, the Servicer,
or the Trust Fund. Notwithstanding anything else to the contrary herein, until
this certificate has been the subject of an ERISA-Qualifying Underwriting, any
purported transfer of a Certificate of this Class to or on behalf of an
employee benefit plan subject to ERISA or to the Code without the opinion of
counsel satisfactory to the Trustee as described above shall be void and of no
effect.]
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
D-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated: ____________, 20__
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By ___________________________
Countersigned:
By ___________________________
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
D-4
EXHIBIT E
[Form of Reverse of Certificates]
INDYMAC MBS, INC.
IndyMac INDX Mortgage Loan Trust 200_-_
Mortgage Pass-Through Certificates, Series 200_-_
This Certificate is one of a duly authorized issue of Certificates
designated as IndyMac MBS, Inc. Mortgage Pass-Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account
for payment hereunder and that the Trustee is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
applicable to each Distribution Date is the last Business Day of the month
next preceding the month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days
prior to the Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such
final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any
time by the Depositor, the Servicer and the Trustee with the consent of the
Holders of Certificates affected by such amendment evidencing the requisite
Percentage Interest, as provided in the Agreement. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
E-1
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office, accompanied by a
written instrument of transfer in form satisfactory to the Trustee and the
Certificate Registrar duly executed by the holder hereof or such holder's
attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest in the Trust Fund will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Depositor, the Servicer, the Seller and the Trustee and any agent
of the Depositor or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and neither
the Depositor, the Trustee, nor any such agent shall be affected by any notice
to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans in the mortgage pool is less than 10% of the
Cut-off Date Pool Principal Balance, the Servicer will have the option to
repurchase, in whole, from the Trust Fund all remaining Mortgage Loans in the
mortgage pool and all property acquired in respect of the Mortgage Loans in
the mortgage pool at a purchase price determined as provided in the Agreement.
In the event that no such optional termination occurs, the obligations and
responsibilities created by the Agreement will terminate upon the later of the
maturity or other liquidation (or any advance with respect thereto) of the
last Mortgage Loan remaining in the Trust Fund or the disposition of all
property in respect thereof and the distribution to Certificateholders of all
amounts required to be distributed pursuant to the Agreement. In no event,
however, will the trust created by the Agreement continue beyond the
expiration of 21 years from the death of the last survivor of the descendants
living at the date of the Agreement of a certain person named in the
Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
E-2
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ____________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_____________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to________________________________________________
______________________________________________________________________________,
for the account of ___________________________________________________________,
account number , or, if mailed by check, to______________________
______________________________________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed to ____________________________________
______________________________________________________________________________
______________________________________________________________________________
This information is provided by _____________________________________,
the assignee named above, or _________________________________________________,
as its agent.
E-3
STATE OF CALIFORNIA )
: ss.:
COUNTY OF _____________ )
On the th day of , 20 before me, a notary public in and for said
State, personally appeared , known to me who, being by me duly sworn, did
depose and say that he executed the foregoing instrument.
__________________________________________
Notary Public
[Notarial Seal]
▇-▇
▇-▇
EXHIBIT E
[Form of Reverse of Certificates]
INDYMAC MBS, INC.
IndyMac INDX Mortgage Loan Trust 200_-_
Mortgage Pass-Through Certificates, Series 200_-_
This Certificate is one of a duly authorized issue of Certificates
designated as IndyMac MBS, Inc. Mortgage Pass-Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account
for payment hereunder and that the Trustee is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
applicable to each Distribution Date is the last Business Day of the month
next preceding the month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days
prior to the Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such
final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any
time by the Depositor, the Servicer and the Trustee with the consent of the
Holders of Certificates affected by such amendment evidencing the requisite
Percentage Interest, as provided in the Agreement. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
D-1
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office, accompanied by a
written instrument of transfer in form satisfactory to the Trustee and the
Certificate Registrar duly executed by the holder hereof or such holder's
attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest in the Trust Fund will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Depositor, the Servicer, the Seller and the Trustee and any agent
of the Depositor or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and neither
the Depositor, the Trustee, nor any such agent shall be affected by any notice
to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans in the mortgage pool is less than 10% of the
Cut-off Date Pool Principal Balance, the Servicer will have the option to
repurchase, in whole, from the Trust Fund all remaining Mortgage Loans in the
mortgage pool and all property acquired in respect of the Mortgage Loans in
the mortgage pool at a purchase price determined as provided in the Agreement.
In the event that no such optional termination occurs, the obligations and
responsibilities created by the Agreement will terminate upon the later of the
maturity or other liquidation (or any advance with respect thereto) of the
last Mortgage Loan remaining in the Trust Fund or the disposition of all
property in respect thereof and the distribution to Certificateholders of all
amounts required to be distributed pursuant to the Agreement. In no event,
however, will the trust created by the Agreement continue beyond the
expiration of 21 years from the death of the last survivor of the descendants
living at the date of the Agreement of a certain person named in the
Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
D-2
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ____________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_____________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to________________________________________________
______________________________________________________________________________,
for the account of ___________________________________________________________,
account number , or, if mailed by check, to______________________
______________________________________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed to ____________________________________
______________________________________________________________________________
______________________________________________________________________________
This information is provided by _____________________________________,
the assignee named above, or _________________________________________________,
as its agent.
▇-▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ )
: ss.:
COUNTY OF _____________ )
On the th day of , 20 before me, a notary public in and for said
State, personally appeared , known to me who, being by me duly sworn, did
depose and say that he executed the foregoing instrument.
____________________________________
Notary Public
[Notarial Seal]
D-4
EXHIBIT F-1
[FORM OF CLASS P-[1][2] CERTIFICATE]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED
FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
[NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS
THE TRANSFEREE REPRESENTS TO THE TRUSTEE THAT SUCH TRANSFEREE IS NOT AND IS
NOT INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF AN EMPLOYEE BENEFIT PLAN
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR, IF THE
CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING, DELIVERS
A REPRESENTATION IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED
TO HEREIN, OR DELIVERS TO THE TRUSTEE AN OPINION OF COUNSEL IN ACCORDANCE WITH
THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING
ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR
ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO SECTION 4975 OF
THE CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS
DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.]
F-2-1
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Certificate Balance
of this Certificate
("Denomination") : $
Initial Certificate Balances
of all Certificates
of this Class : $
CUSIP :
Interest Rate :
Maturity Date :
INDYMAC MBS, INC.
IndyMac INDX Mortgage Loan Trust 200_-__
Mortgage Pass-Through Certificates, Series 200_-__
Class P-[1][2]
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to a Trust Fund
consisting primarily of a pool of conventional mortgage loans (the
"Mortgage Loans") secured by first liens on one- to four-family
residential properties.
Distributors in respect of this Certificate are distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Seller, the Servicer or the Trustee referred to below or any of
their respective affiliates. Neither this Certificate nor the Mortgage Loans
are guaranteed or insured by any governmental agency or instrumentality.
This certifies that ________________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination
of this Certificate by the aggregate of the denominations of all Certificates
of the Class to which this Certificate belongs) in certain monthly
distributions with respect to a Trust Fund consisting primarily of the
Mortgage Loans deposited by IndyMac MBS, Inc. (the "Depositor"). The Trust
Fund was created pursuant to a Pooling and Servicing Agreement dated as of the
Cut-off Date specified above (the "Agreement") among the Depositor, IndyMac
Bank, F.S.B., as seller and servicer (the "Seller" or the "Servicer", as
appropriate), and Deutsche Bank National Trust Company, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement. This Certificate is issued
F-2-2
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
The Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the Distribution Account may be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
advances made, or certain expenses incurred, with respect to the Mortgage
Loans.
This Certificate does not have a Certificate Balance or Pass-Through Rate and
will be entitled to distributions only to the extent set forth in the
Agreement. In addition, any distribution of the proceeds of any remaining
assets of the Trust will be made only upon presentment and surrender of this
Certificate at the Corporate Trust Office or the office or agency maintained
by the Trustee.
No transfer of a Certificate of this Class shall be made unless such
disposition is exempt from the registration requirements of the Securities Act
of 1933, as amended (the "1933 Act"), and any applicable state securities laws
or is made in accordance with the 1933 Act and such laws. In the event of any
such transfer, the Trustee shall require the transferor to execute a
transferor certificate (in substantially the form attached to the Pooling and
Servicing Agreement) and deliver either (i) an Investment Letter or the Rule
144A Letter, in either case substantially in the form attached to the
Agreement, or (ii) a written Opinion of Counsel to the Trustee that such
transfer may be made pursuant to an exemption, describing the applicable
exemption and the basis therefor, from the 1933 Act or is being made pursuant
to the 1933 Act, which Opinion of Counsel shall be an expense of the
transferor.
[No transfer of a Certificate of this Class shall be made unless the Trustee
shall have received either (i) a representation [letter] from the transferee
of such Certificate, acceptable to and in form and substance satisfactory to
the Trustee, to the effect that such transferee is not an employee benefit
plan or other benefit plan subject to Section 406 of ERISA or Section 4975 of
the Code, or a person acting on behalf of or investing plan assets of any such
plan, which representation letter shall not be an expense of the Trustee or
the Servicer, (ii) if the purchaser is an insurance company and the
Certificate has been the subject of an ERISA-Qualifying Underwriting, a
representation that the purchaser is an insurance company which is purchasing
such Certificates with funds contained in an "insurance company general
account" (as such term is defined in Section V(e) of Prohibited Transaction
Class Exemption 95-60 ("PTCE 95-60")) and that the purchase and holding of
such Certificates are covered under Sections I and III of PTCE 95-60 or (iii)
in the case of any such Certificate presented for registration in the name of
an employee benefit plan subject to ERISA or Section 4975 of the Code (or
comparable provisions of any subsequent enactments), or a trustee of any such
plan or any other person acting on behalf of any such plan, an Opinion of
Counsel satisfactory to the Trustee and the Servicer to the effect that the
purchase or holding of such Certificate will not result in a nonexempt
prohibited transaction under ERISA or Section 4975 of the Code and will not
subject the Trustee or the Servicer to any obligation in addition to those
undertaken in the Agreement, which Opinion of Counsel shall not be an expense
of the Trustee, the Servicer or the Trust Fund. Notwithstanding anything else
to the contrary herein, any purported transfer of a Certificate of this Class
to or on behalf of an employee benefit plan subject to ERISA or to Section
4975 of the Code without the opinion of counsel satisfactory to the Trustee as
described above shall be void and of no effect.]
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement or
be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
F-2-3
* * *
F-2-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated: _______, ____
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By ___________________________________
Countersigned:
By ___________________________
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST
COMPANY, as Trustee
F-2-5
INDYMAC MBS, INC.
IndyMac INDX Mortgage Loan Trust 200_-__
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates designated
as IndyMac MBS, Inc. Mortgage Pass-Through Certificates, of the Series
specified on the face hereof (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that it
will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and reference is
made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made on the
25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
applicable to each Distribution Date is the last Business Day of the month
next preceding the month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days
prior to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such
final distribution.
The Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee with the consent of the Holders of
Certificates affected by such amendment evidencing the requisite Percentage
Interest, as provided in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of
such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of
the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office, accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar
duly executed by the holder hereof or such holder's attorney duly authorized
in writing, and thereupon one or more new Certificates of the same
F-2-6
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust Fund will be issued to the designated transferee or
transferees.
The Certificates are issuable only as registered Certificates without coupons
in denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Servicer, the Seller and the Trustee and any agent of the
Depositor or the Trustee may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and neither the Depositor,
the Trustee, nor any such agent shall be affected by any notice to the
contrary.
On any Distribution Date on which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 10% of the Cut-off Date Pool Principal
Balance, the Servicer will have the option to repurchase, in whole, from the
Trust Fund all remaining Mortgage Loans and all property acquired in respect
of the Mortgage Loans at a purchase price determined as provided in the
Agreement. In the event that no such optional termination occurs, the related
obligations and responsibilities created by the Agreement will terminate upon
the later of the maturity or other liquidation (or any advance with respect
thereto) of the last Mortgage Loan remaining in the Trust Fund or the
disposition of all property in respect thereof and the distribution to
Certificateholders of all amounts required to be distributed pursuant to the
Agreement. In no event, however, will the trust created by the Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants living at the date of the Agreement of a certain person
named in the Agreement.
Any term used herein that is defined in the Agreement shall have the meaning
assigned in the Agreement, and nothing herein shall be deemed inconsistent
with that meaning.
F-2-7
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ____________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_____________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to________________________________________________
______________________________________________________________________________,
for the account of ___________________________________________________________,
account number , or, if mailed by check, to______________________
______________________________________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed to ____________________________________
______________________________________________________________________________
______________________________________________________________________________
This information is provided by _____________________________________,
the assignee named above, or _________________________________________________,
as its agent.
F-2-8
STATE OF ___________________ )
) ss.:
COUNTY OF __________________ )
On the th day of , 20 before me, a notary public in and for
said State, personally appeared ____________________, known to me who, being by
me duly sworn, did depose and say that he executed the foregoing instrument.
______________________________
Notary Public
[Notarial Seal]
F-2-9
EXHIBIT F-2
FORM OF CLASS L CERTIFICATE
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE
RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND LAWS OR
IS SOLD OR TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION UNDER
SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
[NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS
THE TRANSFEREE REPRESENTS TO THE TRUSTEE THAT SUCH TRANSFEREE IS NOT AND IS
NOT INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF AN EMPLOYEE BENEFIT PLAN
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR, IF THE
CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING, DELIVERS
A REPRESENTATION IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED
TO HEREIN, OR DELIVERS TO THE TRUSTEE AN OPINION OF COUNSEL IN ACCORDANCE WITH
THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING
ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR
ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO SECTION 4975 OF
THE CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS
DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.]
F-2-10
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Notional Balance
of this Certificate
("Denomination") : $
Initial Notional Balances
of all Certificates
of this Class : $
CUSIP :
INDYMAC MBS, INC.
IndyMac INDX Mortgage Loan Trust 200_-__
Mortgage Pass-Through Certificates, Series 200_-__
Class L
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class payable solely from
Late Payment Fees.
Distributions in respect of this Certificate are
distributable monthly as set forth herein. This Certificate does not evidence
an obligation of, or an interest in, and is not guaranteed by the Depositor,
the Seller, the Servicer or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that [_________] is the registered owner of
the Percentage Interest evidenced by this Certificate (obtained by dividing
the Denomination of this Certificate by the aggregate of the Denominations of
all Certificates of the Class to which this Certificate belongs) in certain
monthly distributions pursuant to a Pooling and Servicing Agreement dated as
of the Cut-off Date specified above (the "Agreement") among IndyMac MBS, Inc.,
as depositor (the "Depositor"), IndyMac Bank, F.S.B., as seller (in such
capacity, the "Seller") and as servicer (in such capacity, the "Servicer"),
and Deutsche Bank National Trust Company, as trustee (the "Trustee"). To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
This Certificate does not have a Pass-Through Rate and will
be entitled to distributions only to the extent set forth in the Agreement and
solely payable from Late Payment Fees. In addition, any distribution of the
proceeds of any remaining assets of the Trust will be made only upon
presentment and surrender of this Certificate at the office or agency
maintained by the Trustee.
No transfer of a Certificate of this Class shall be made
unless such disposition is exempt from the registration requirements of the
Securities Act of 1933, as amended (the "1933 Act"), and any
F-2-11
applicable state securities laws or is made in accordance with the 1933 Act
and such laws. In the event of any such transfer, subject to the provisions in
Section 5.02(b) of the Agreement, the Trustee shall require the transferor to
execute a transferor certificate (in substantially the form attached to the
Pooling and Servicing Agreement) and deliver either (i) an Investment Letter
or the Rule 144A Letter, in either case substantially in the form attached to
the Agreement, or (ii) a written Opinion of Counsel to the Trustee that such
transfer may be made pursuant to an exemption, describing the applicable
exemption and the basis therefor, from the 1933 Act or is being made pursuant
to the 1933 Act, which Opinion of Counsel shall be an expense of the
transferor.
[No transfer of a Certificate of this Class shall be made unless the Trustee
shall have received either (i) a representation [letter] from the transferee
of such Certificate, acceptable to and in form and substance satisfactory to
the Trustee, to the effect that such transferee is not an employee benefit
plan or other benefit plan subject to Section 406 of ERISA or Section 4975 of
the Code, or a person acting on behalf of or investing plan assets of any such
plan, which representation letter shall not be an expense of the Trustee or
the Servicer, (ii) if the purchaser is an insurance company and the
Certificate has been the subject of an ERISA-Qualifying Underwriting, a
representation that the purchaser is an insurance company which is purchasing
such Certificates with funds contained in an "insurance company general
account" (as such term is defined in Section V(e) of Prohibited Transaction
Class Exemption 95-60 ("PTCE 95-60")) and that the purchase and holding of
such Certificates are covered under Sections I and III of PTCE 95-60 or (iii)
in the case of any such Certificate presented for registration in the name of
an employee benefit plan subject to ERISA or Section 4975 of the Code (or
comparable provisions of any subsequent enactments), or a trustee of any such
plan or any other person acting on behalf of any such plan, an Opinion of
Counsel satisfactory to the Trustee and the Servicer to the effect that the
purchase or holding of such Certificate will not result in a nonexempt
prohibited transaction under ERISA or Section 4975 of the Code and will not
subject the Trustee or the Servicer to any obligation in addition to those
undertaken in the Agreement, which Opinion of Counsel shall not be an expense
of the Trustee, the Servicer or the Trust Fund. Notwithstanding anything else
to the contrary herein, any purported transfer of a Certificate of this Class
to or on behalf of an employee benefit plan subject to ERISA or to Section
4975 of the Code without the opinion of counsel satisfactory to the Trustee as
described above shall be void and of no effect.]
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
F-2-12
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated: _______, ____
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By ___________________________________
Countersigned:
By ___________________________
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST
COMPANY, as Trustee
F-1
INDYMAC MBS, INC.
IndyMac INDX Mortgage Loan Trust 200_-__
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates designated
as IndyMac MBS, Inc. Mortgage Pass-Through Certificates, of the Series
specified on the face hereof (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that it
will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and reference is
made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made on the
25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
applicable to each Distribution Date is the last Business Day of the month
next preceding the month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days
prior to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such
final distribution.
The Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee with the consent of the Holders of
Certificates affected by such amendment evidencing the requisite Percentage
Interest, as provided in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of
such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of
the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office, accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar
duly executed by the holder hereof or such holder's attorney duly authorized
in writing, and thereupon one or more new Certificates of the same
F-2
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust Fund will be issued to the designated transferee or
transferees.
The Certificates are issuable only as registered Certificates without coupons
in denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Servicer, the Seller and the Trustee and any agent of the
Depositor or the Trustee may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and neither the Depositor,
the Trustee, nor any such agent shall be affected by any notice to the
contrary.
On any Distribution Date on which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 10% of the Cut-off Date Pool Principal
Balance, the Servicer will have the option to repurchase, in whole, from the
Trust Fund all remaining Mortgage Loans and all property acquired in respect
of the Mortgage Loans at a purchase price determined as provided in the
Agreement. In the event that no such optional termination occurs, the related
obligations and responsibilities created by the Agreement will terminate upon
the later of the maturity or other liquidation (or any advance with respect
thereto) of the last Mortgage Loan remaining in the Trust Fund or the
disposition of all property in respect thereof and the distribution to
Certificateholders of all amounts required to be distributed pursuant to the
Agreement. In no event, however, will the trust created by the Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants living at the date of the Agreement of a certain person
named in the Agreement.
Any term used herein that is defined in the Agreement shall have the meaning
assigned in the Agreement, and nothing herein shall be deemed inconsistent
with that meaning.
F-3
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ____________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_____________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to________________________________________________
______________________________________________________________________________,
for the account of ___________________________________________________________,
account number , or, if mailed by check, to______________________
______________________________________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed to ____________________________________
______________________________________________________________________________
______________________________________________________________________________
This information is provided by _____________________________________,
the assignee named above, or _________________________________________________,
as its agent.
F-4
STATE OF ___________________ )
) ss.:
COUNTY OF __________________ )
On the th day of , 20 before me, a notary public in and for
said State, personally appeared , known to me who, being by me duly sworn, did
depose and say that he executed the foregoing instrument.
__________________________________
Notary Public
[Notarial Seal]
F-5
EXHIBIT G-1
FORM OF INITIAL CERTIFICATION OF TRUSTEE
[date]
[Depositor]
[Servicer]
[Seller]
_______________________
_______________________
Re: Pooling and Servicing Agreement among IndyMac MBS, Inc., as
Depositor, IndyMac Bank, F.S.B., as Seller and Servicer,
and Deutsche Bank National Trust Company, as Trustee,
Mortgage Pass-Through Certificates, Series 200 -
------------------------------------------------------------
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned,
as Trustee, hereby certifies that, as to each Mortgage Loan listed in the
Mortgage Loan Schedule (other than any Mortgage Loan listed in the attached
schedule), it has received:
(i) the original Mortgage Note, endorsed as provided in the following
form: "Pay to the order of ________, without recourse"; and
(ii) an executed assignment of the Mortgage (which may be included in
a blanket assignment or assignments); provided, however, that it has received
no assignment with respect to any Mortgage for which the Mortgaged Property is
located in the Commonwealth of Puerto Rico.
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face and to such Mortgage
Loan.
The Trustee has made no independent examination of any
documents contained in each Mortgage File beyond the review specifically
required in the Pooling and Servicing Agreement. The Trustee makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File of any
of the Mortgage Loans identified on the Mortgage Loan Schedule, or (ii) the
collectability, insurability, effectiveness or suitability of any such
Mortgage Loan.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the Pooling and Servicing Agreement.
G-1-1
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By:________________________________________
Name:
Title:
G-1-2
EXHIBIT G-2
FORM OF DELAY DELIVERY CERTIFICATION (INITIAL MORTGAGE LOANS)
[date]
[Depositor]
[Servicer]
[Seller]
__________________________
__________________________
Re: Pooling and Servicing Agreement among IndyMac MBS, Inc., as
Depositor, IndyMac Bank, F.S.B., as Seller and Servicer,
and Deutsche Bank National Trust Company, as Trustee,
Mortgage Pass-Through Certificates, Series 200 -
-----------------------------------------------------------
Gentlemen:
Reference is made to the Initial Certification of Trustee relating to
the above-referenced series, with the schedule of exceptions attached thereto
(the "Schedule A"), delivered by the undersigned, as Trustee, on the Closing
Date in accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"). The undersigned
hereby certifies that, as to each Delay Delivery Mortgage Loan listed on
Schedule A attached hereto (other than any Mortgage Loan paid in full or
listed on Schedule B attached hereto) it has received:
(i) the original Mortgage Note, endorsed by the Seller or the
originator of such Mortgage Loan, without recourse in the
following form: "Pay to the order of _______________ without
recourse", with all intervening endorsements that show a
complete chain of endorsement from the originator to the
Seller, or, if the original Mortgage Note has been lost or
destroyed and not replaced, an original lost note affidavit
from the Seller, stating that the original Mortgage Note was
lost or destroyed, together with a copy of the Mortgage
Note;
(ii) the original recorded Mortgage;
(iii) an executed assignment of the Mortgage to "Deutsche Bank
National Trust Company, as trustee under the Pooling and
Servicing Agreement dated as of April 1, 2007, without
recourse" (each such assignment, when duly and validly
completed, to be in recordable form and sufficient to effect
the assignment of and transfer to the assignee thereof,
under the Mortgage to which such assignment relates);
(iv) the original recorded assignment or assignments of the
Mortgage together with all interim recorded assignments of
such Mortgage;
(v) the original or copies of each assumption, modification,
written assurance or substitution agreement, if any, with
evidence of recording thereon if recordation thereof is
permissible under applicable law; and
G-2-1
(vi) the original or duplicate original lender's title policy and
all riders, if any, thereto or, in the event such original
title policy has not been received from the insurer, any one
of an original title binder, an original preliminary title
report or an original title commitment, or a copy thereof
certified by the title company, with the original policy of
title insurance to be delivered within one year of the
Closing Date.
In the event that in connection with any Mortgage Loan for which the
Seller cannot deliver the original recorded Mortgage or all interim recorded
assignments of the Mortgage satisfying the requirements of clause (ii), (iii)
or (iv), as applicable, the Trustee has received, in lieu thereof, a true and
complete copy of such Mortgage and/or such assignment or assignments of the
Mortgage, as applicable, each certified by the Seller, the applicable title
company, escrow agent or attorney, or the originator of such Mortgage Loan, as
the case may be, to be a true and complete copy of the original Mortgage or
assignment of Mortgage submitted for recording.
Based on its review and examination and only as to the foregoing
documents, (i) such documents appear regular on their face and related to such
Mortgage Loan, and (ii) the information set forth in items (i), (iv), (vi) and
(xv) (solely as of origination, not as of the Cut-off Date) of the definition
of the "Mortgage Loan Schedule" in Section 1.01 of the Pooling and Servicing
Agreement accurately reflects information set forth in the Mortgage File.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The Trustee makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File of any
of the Mortgage Loans identified on the [Mortgage Loan Schedule][Loan Number
and Borrower Identification Mortgage Loan Schedule] or (ii) the
collectability, insurability, effectiveness or suitability of any such
Mortgage Loan.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By:__________________________________________
Name:
Title:
G-2-2
EXHIBIT H
FORM OF FINAL CERTIFICATION OF TRUSTEE
[date]
[Depositor]
[Servicer]
[Seller]
_____________________
_____________________
Re: Pooling and Servicing Agreement among IndyMac MBS, Inc., as
Depositor, IndyMac Bank, F.S.B., as Seller and Servicer,
and Deutsche Bank National Trust Company, as Trustee,
Mortgage Pass-Through Certificates, Series 200 -
------------------------------------------------------------
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned,
as Trustee, hereby certifies that as to each Mortgage Loan listed in the
Mortgage Loan Schedule (other than any Mortgage Loan paid in full or listed on
the attached Document Exception Report) it has received:
(i) The original Mortgage Note, endorsed in the form provided in
Section 2.01(c) of the Pooling and Servicing Agreement, with all intervening
endorsements showing a complete chain of endorsement from the originator to
the Seller.
(ii) The original recorded Mortgage.
(iii) An executed assignment of the Mortgage in the form provided in
Section 2.01(c) of the Pooling and Servicing Agreement; provided, however,
that it has received no assignment with respect to any Mortgage for which the
Mortgaged Property is located in the Commonwealth of Puerto Rico, or, if the
Depositor has certified or the Trustee otherwise knows that the Mortgage has
not been returned from the applicable recording office, a copy of the
assignment of the Mortgage (excluding information to be provided by the
recording office).
(iv) The original or duplicate original recorded assignment or
assignments of the Mortgage showing a complete chain of assignment from the
originator to the Seller.
(v) The original or duplicate original lender's title policy and all
riders thereto or, any one of an original title binder, an original
preliminary title report or an original title commitment, or a copy thereof
certified by the title company.
Based on its review and examination and only as to the foregoing
documents, (a) such documents appear regular on their face and related to such
Mortgage Loan, and (b) the information set forth in items (i), (ii), (iii),
(iv), (vi) and (xv) (solely as of origination, not as of the Cut-off Date) of
the definition of the
H-1
"Mortgage Loan Schedule" in Section 1.01 of the Pooling and Servicing
Agreement accurately reflects information set forth in the Mortgage File.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement. The Trustee makes no representations as to:
(i) the validity, legality, sufficiency, enforceability or genuineness of any
of the documents contained in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan.
Notwithstanding anything herein to the contrary, the Trustee has made no
determination and makes no representations as to whether (i) any endorsement
is sufficient to transfer all right, title and interest of the party so
endorsing, as noteholder or assignee thereof, in and to that Mortgage Note or
(ii) any assignment is in recordable form or sufficient to effect the
assignment of and transfer to the assignee thereof, under the Mortgage to
which the assignment relates.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By:__________________________________________
Name:
Title:
H-2
EXHIBIT I
TRANSFER AFFIDAVIT
IndyMac MBS, Inc.
Mortgage Pass-Through Certificates
Series 200_-_
STATE OF CALIFORNIA )
: ss.:
COUNTY OF _____________ )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is an officer of , the proposed Transferee of an
Ownership Interest in a Class A-R Certificate (the "Certificate") issued
pursuant to the Pooling and Servicing Agreement, (the "Agreement"), relating
to the above-referenced Series, by and among IndyMac MBS, Inc., as depositor
(the "Depositor"), IndyMac Bank, F.S.B., as seller and servicer and Deutsche
Bank National Trust Company, as Trustee. Capitalized terms used, but not
defined herein or in Exhibit 1 hereto, shall have the meanings ascribed to
such terms in the Agreement. The Transferee has authorized the undersigned to
make this affidavit on behalf of the Transferee.
2. The Transferee is, as of the date hereof, and will be, as of the
date of the Transfer, a Permitted Transferee. The Transferee is acquiring its
Ownership Interest in the Certificate for its own account.
3. The Transferee has been advised of, and understands that (i) a tax
will be imposed on Transfers of the Certificate to Persons that are not
Permitted Transferees; (ii) such tax will be imposed on the transferor, or, if
such Transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability
for the tax if the subsequent Transferee furnished to such Person an affidavit
that such subsequent Transferee is a Permitted Transferee and, at the time of
Transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that a tax
will be imposed on a "pass-through entity" holding the Certificate if at any
time during the taxable year of the pass-through entity a Person that is not a
Permitted Transferee is the record holder of an interest in such entity. The
Transferee understands that such tax will not be imposed for any period with
respect to which the record holder furnishes to the pass-through entity an
affidavit that such record holder is a Permitted Transferee and the
pass-through entity does not have actual knowledge that such affidavit is
false. (For this purpose, a "pass-through entity" includes a regulated
investment company, a real estate investment trust or common trust fund, a
partnership, trust or estate, and certain cooperatives and, except as may be
provided in Treasury Regulations, persons holding interests in pass-through
entities as a nominee for another Person.)
5. The Transferee has reviewed the provisions of Section 5.02(c) of
the Agreement (attached hereto as Exhibit 2 and incorporated herein by
reference) and understands the legal consequences of the acquisition of an
Ownership Interest in the Certificate including, without limitation, the
restrictions on subsequent Transfers and the provisions regarding voiding the
Transfer and mandatory sales. The Transferee expressly agrees to be bound by
and to abide by the provisions of Section 5.02(c)
I-1
of the Agreement and the restrictions noted on the face of the Certificate.
The Transferee understands and agrees that any breach of any of the
representations included herein shall render the Transfer to the Transferee
contemplated hereby null and void.
6. The Transferee agrees to require a Transfer Affidavit from any
Person to whom the Transferee attempts to Transfer its Ownership Interest in
the Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee will not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Trustee a certificate substantially in the
form set forth as Exhibit J to the Agreement (a "Transferor Certificate") to
the effect that such Transferee has no actual knowledge that the Person to
which the Transfer is to be made is not a Permitted Transferee.
7. The Transferee does not have the intention to impede the
assessment or collection of any tax legally required to be paid with respect
to the Certificate.
8. The Transferee's taxpayer identification number is .
9. The Transferee is a U.S. Person as defined in Code Section
7701(a)(30).
10. The Transferee is aware that the Certificate may be a
"noneconomic residual interest" within the meaning of proposed Treasury
regulations promulgated pursuant to the Code and that the transferor of a
noneconomic residual interest will remain liable for any taxes due with
respect to the income on such residual interest, unless no significant purpose
of the transfer was to impede the assessment or collection of tax.
11. The Transferee is not a foreign permanent establishment or fixed
base (within the meaning of an applicable income tax treaty) of a U.S.
taxpayer.
12. The Transferee will not transfer the Certificates, directly or
indirectly, to a foreign permanent establishment or fixed base (within the
meaning of an applicable income tax treaty) of the Transferee or another U.S.
taxpayer.
13. The Transferee will not cause income from the Certificates to be
attributable to a foreign permanent establishment or fixed base (within the
meaning of an applicable income tax treaty) of the Transferee or another U.S.
taxpayer.
14. Either:
(a) (i) At the time of the transfer, and at the close of
each of the Transferee's two fiscal years preceding the Transferee's
fiscal year of transfer, the Transferee's gross assets for financial
reporting purposes exceed $100 million and its net assets for
financial reporting purposes exceed $10 million. For purposes of the
preceding sentence, the gross assets and net assets of a Transferee
do not include any obligation of any Related Person, as defined
below, or any other asset if a principal purpose for holding or
acquiring the other asset is to permit the Transferee to satisfy the
conditions of this paragraph 15(a); (ii) The Transferee is an
Eligible Corporation, as defined below, and hereby agrees that any
subsequent transfer of the interest will be to another Eligible
Corporation in a transaction that satisfies this Transfer Affidavit,
including this paragraph 15(a); and (iii) The Transferee has not
given the Transferor any reason to know that the Transferee will not
honor the restrictions on subsequent transfers of the residual
interest or that the Transferee cannot or will not pay any taxes
associated with the residual interest; or
I-2
(b)(i) The Transferee is a United States Person; (ii) The
present value of the anticipated tax liabilities associated with
holding the residual interest does not exceed the sum of: (A) The
present value of any consideration given to the Transferee to acquire
the interest; (B) The present value of the expected future
distributions on the interest; and (C) The present value of the
anticipated tax savings associated with holding the interest as any
REMIC generates losses; and (iii) For purposes of calculating the
aforementioned present values: (A) The transferee has assumed that it
pays tax at a rate equal to the highest rate of tax specified in Code
Section 11(b)(1) (unless the Transferee has been subject to the
alternative minimum tax under Code Section 55 in the preceding two
years and will compute its taxable income in the current taxable year
using the alternative minimum tax rate, in which case the Transferee
can assume that it pays tax at the rate specified in Code Section
55(b)(1)(B) provided the Transferee states in this Transfer Affidavit
that it is using such alternate rate and that has been subject to the
alternative minimum tax under Code Section 55 in the preceding two
years and will compute its taxable income in the current taxable year
using the alternative minimum tax rate):and (B) The Transferee uses a
discount rate equal to the Federal short-term rate prescribed by
section 1274(d) for the month of the transfer and the compounding
period used by the Transferee.
The term "Eligible Corporation" means any domestic C corporation (as
defined in section 1361(a)(2) of the Code) other than a corporation which is
exempt from, or is not subject to, tax under section 11 of the Code, an entity
described in section 851(a) or 856(a) of the Code, a REMIC; or an organization
to which part I, subchapter T, chapter 1, subtitle A of the Code applies. The
Term "Related Person" means any person that bears a relationship to the
Transferee enumerated in section 267(b) or 707(b)(1) of the Code, using "20
percent" instead of "50 percent" where it appears under the provisions; or is
under common control (within the meaning of section 52(a) and (b) of the Code)
with the Transferee.
15. Either (i) the Transferee is not an employee benefit plan that is
subject to ERISA or a plan that is subject to Section 4975 of the Code, and
the Transferee is not acting on behalf of or with plan assets of such a plan;
or (ii) the Transferee is an insurance company that is investing funds
contained in an "insurance company general account" (as such term is defined
in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")
and the purchase and holding of the Class A-R Certificate satisfy the
requirements for exemptive relief under Sections I and III of PTCE 95-60.
* * *
I-3
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by
its duly authorized officer and its corporate seal to be hereunto affixed,
duly attested, this _____ day of ____________, 20__.
______________________________________________
Print Name of Transferee
By:__________________________________________
Name:
Title:
[Corporate Seal]
ATTEST:
[Assistant] Secretary
Personally appeared before me the above-named , known or proved to me
to be the same person who executed the foregoing instrument and to be the of
the Transferee, and acknowledged that he executed the same as his free act and
deed and the free act and deed of the Transferee.
Subscribed and sworn before me this day of , 20 .
______________________________________
NOTARY PUBLIC
My Commission expires the _____ day of
________________, 20__.
I-4
EXHIBIT 1
to EXHIBIT I
Certain Definitions
-------------------
"Ownership Interest": As to any Certificate, any ownership interest
in such Certificate, including any interest in such Certificate as the Holder
thereof and any other interest therein, whether direct or indirect, legal or
beneficial.
"Permitted Transferee": Any Person other than (i) the United States,
any State or political subdivision thereof, or any agency or instrumentality
of any of the foregoing, (ii) a foreign government, International Organization
or any agency or instrumentality of either of the foregoing, (iii) an
organization (except certain farmers' cooperatives described in Code Section
521) that is exempt from tax imposed by Chapter 1 of the Code (including the
tax imposed by Code Section 511 on unrelated business taxable income) on any
excess inclusions (as defined in Code Section 860E(c)(1)) with respect to any
Restricted Certificate, (iv) a rural electric and telephone cooperatives
described in Code Section 1381(a)(2)(c), (v) an "electing large partnership"
as defined in Code Section 775 of (vi) a Person that is not a U.S. Person, and
(vii) any other Person so designated by the Depositor based upon an Opinion of
Counsel that the Transfer of an Ownership Interest in a Residual Certificate
to such Person may cause any REMIC to fail to qualify as a REMIC at any time
that certain Certificates are Outstanding. The terms "United States," "State"
and "International Organization" shall have the meanings set forth in Code
Section 7701 or successor provisions. A corporation will not be treated as an
instrumentality of the United States or of any State or political subdivision
thereof if all of its activities are subject to tax, and, with the exception
of the FHLMC, a majority of its board of directors is not selected by such
governmental unit.
"Person": Any individual, corporation, partnership, joint venture,
limited liability company, bank, joint stock company, trust (including any
beneficiary thereof), unincorporated organization or government or any agency
or political subdivision thereof.
"Transfer": Any direct or indirect transfer or sale of any Ownership
Interest in a Certificate, including the acquisition of a Certificate by the
Depositor.
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
I-5
EXHIBIT 2
to EXHIBIT I
Section 5.02(c) of the Agreement
(c) Each Person who has or who acquires any Ownership
Interest in a Residual Certificate shall be deemed by the acceptance or
acquisition of such Ownership Interest to have agreed to be bound by the
following provisions, and the rights of each Person acquiring any Ownership
Interest in a Residual Certificate are expressly subject to the following
provisions:
(i) Each Person holding or acquiring any Ownership
Interest in a Residual Certificate shall be a Permitted
Transferee and shall promptly notify the Trustee of any
change or impending change in its status as a Permitted
Transferee.
(ii) No Ownership Interest in a Residual
Certificate may be registered on the Closing Date or
thereafter transferred, and the Trustee shall not register
the Transfer of any Residual Certificate unless, in addition
to the certificates required to be delivered to the Trustee
under subparagraph (b) above, the Trustee shall have been
furnished with an affidavit (a "Transfer Affidavit") of the
initial owner or the proposed transferee in the form
attached hereto as Exhibit I.
(iii) Each Person holding or acquiring any
Ownership Interest in a Residual Certificate shall agree (A)
to obtain a Transfer Affidavit from any other Person to whom
such Person attempts to Transfer its Ownership Interest in a
Residual Certificate, (B) to obtain a Transfer Affidavit
from any Person for whom such Person is acting as nominee,
trustee or agent in connection with any Transfer of a
Residual Certificate and (C) not to Transfer its Ownership
Interest in a Residual Certificate or to cause the Transfer
of an Ownership Interest in a Residual Certificate to any
other Person if it has actual knowledge that such Person is
not a Permitted Transferee.
(iv) Any attempted or purported Transfer of any
Ownership Interest in a Residual Certificate in violation of
the provisions of this Section 5.02(c) shall be absolutely
null and void and shall vest no rights in the purported
Transferee. If any purported transferee shall become a
Holder of a Residual Certificate in violation of the
provisions of this Section 5.02(c), then the last preceding
Permitted Transferee shall be restored to all rights as
Holder thereof retroactive to the date of registration of
Transfer of such Residual Certificate. The Trustee shall be
under no liability to any Person for any registration of
Transfer of a Residual Certificate that is in fact not
permitted by Section 5.02(b) and this Section 5.02(c) or for
making any payments due on such Certificate to the Holder
thereof or taking any other action with respect to such
Holder under the provisions of this Agreement so long as the
Transfer was registered after receipt of the Transfer
Affidavit, Transferor Certificate and either the Rule 144A
Letter or the Investment Letter. The Trustee shall be
entitled but not obligated to recover from any Holder of a
Residual Certificate that was in fact not a Permitted
Transferee at the time it became a Holder or, at such
subsequent time as it became other than a Permitted
Transferee, all payments made on such Residual Certificate
at and after either such time. Any such payments so
recovered by the Trustee shall be paid and delivered by the
Trustee to the last preceding Permitted Transferee of such
Certificate.
I-6
(v) The Depositor shall use its best efforts to
make available, upon receipt of written request from the
Trustee, all information necessary to compute any tax
imposed under Section 860E(e) of the Code as a result of a
Transfer of an Ownership Interest in a Residual Certificate
to any Holder who is not a Permitted Transferee.
I-7
EXHIBIT J
FORM OF TRANSFEROR CERTIFICATE
__________, 200__
IndyMac MBS, Inc.
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▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Secondary Marketing, Transaction Management
DB Services Tennessee
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▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Transfer Unit, [Series 200 -]
Re: IndyMac MBS, Inc.
Mortgage Pass-Through Certificates, Series 200 -, Class
-------------------------------------------------------
Ladies and Gentlemen:
In connection with our disposition of the above Certificates
we certify that (a) we understand that the Certificates have not been
registered under the Securities Act of 1933, as amended (the "Act"), and are
being disposed by us in a transaction that is exempt from the registration
requirements of the Act, (b) we have not offered or sold any Certificates to,
or solicited offers to buy any Certificates from, any person, or otherwise
approached or negotiated with any person with respect thereto, in a manner
that would be deemed, or taken any other action which would result in, a
violation of Section 5 of the Act and (c) to the extent we are disposing of a
Class A-R Certificate, we have no knowledge the Transferee is not a Permitted
Transferee.
Very truly yours,
______________________________________
Print Name of Transferor
By: __________________________________
Authorized Officer
J-1
EXHIBIT K
FORM OF INVESTMENT LETTER (NON-RULE 144A)
__________, 200__
IndyMac MBS, Inc.
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▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Secondary Marketing, Transaction Management
DB Services Tennessee
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Transfer Unit, [Series 200 -]
Re: IndyMac MBS, Inc.
Mortgage Pass-Through Certificates, Series 200 -, Class
-------------------------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above-referenced
Certificates we certify that (a) we understand that the Certificates are not
being registered under the Securities Act of 1933, as amended (the "Act"), or
any state securities laws and are being transferred to us in a transaction
that is exempt from the registration requirements of the Act and any such
laws, (b) we are an "accredited investor," as defined in Regulation D under
the Act, and have such knowledge and experience in financial and business
matters that we are capable of evaluating the merits and risks of investments
in the Certificates, (c) we have had the opportunity to ask questions of and
receive answers from the Depositor concerning the purchase of the Certificates
and all matters relating thereto or any additional information deemed
necessary to our decision to purchase the Certificates, (d) either (i) we are
not an employee benefit plan that is subject to the Employee Retirement Income
Security Act of 1974, as amended, or a plan or arrangement that is subject to
Section 4975 of the Internal Revenue Code of 1986, as amended, nor are we
acting on behalf of any such plan or arrangement or using the assets of any
such plan or arrangement to effect such acquisition or (ii) [in the case of a
Certificate that has been the subject of an ERISA-Qualifying Underwriting] we
are an insurance company which is purchasing such Certificates with funds
contained in an "insurance company general account" (as such term is defined
in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE
95-60")) and the purchase and holding of such Certificates are covered under
Sections I and III of PTCE 95-60, (e) we are acquiring the Certificates for
investment for our own account and not with a view to any distribution of such
Certificates (but without prejudice to our right at all times to sell or
otherwise dispose of the Certificates in accordance with clause (g) below),
(f) we have not offered or sold any Certificates to, or solicited offers to
buy any Certificates from, any person, or otherwise approached or negotiated
with any person with respect thereto, or taken any other action which would
result in a violation of Section 5 of the Act, (g) we will not sell, transfer
or otherwise dispose of any Certificates unless (1) such sale, transfer or
other disposition is made pursuant to an effective registration statement
under the Act or is exempt from such registration requirements, and if
requested, we will at our expense provide an opinion of counsel satisfactory
to the addressees of this Certificate that such sale, transfer or other
disposition may be made pursuant to an exemption from the Act, (2) the
purchaser or transferee of such Certificate has executed and delivered to you
a certificate to substantially the same effect as this certificate, and (3)
the purchaser or transferee has otherwise complied
K-1
with any conditions for transfer set forth in the Pooling and Servicing
Agreement and (h) if we are a corporation purchasing the Certificates in the
State of California, we have a net worth of at least $14,000,000 according to
our most recent audited financial statements.
Very truly yours,
____________________________________
Print Name of Transferee
By: ________________________________
Authorized Officer
K-2
EXHIBIT L
FORM OF RULE 144A LETTER
____________, 200__
IndyMac MBS, Inc.
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▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Secondary Marketing, Transaction Management
DB Services Tennessee
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Transfer Unit, [Series 200 -]
Re: IndyMac MBS, Inc.
Mortgage Pass-Through Certificates, Series 200 -, Class
-------------------------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above-referenced
Certificates we certify that (a) we understand that the Certificates are not
being registered under the Securities Act of 1933, as amended (the "Act"), or
any state securities laws and are being transferred to us in a transaction
that is exempt from the registration requirements of the Act and any such
laws, (b) we have such knowledge and experience in financial and business
matters that we are capable of evaluating the merits and risks of investments
in the Certificates, (c) we have had the opportunity to ask questions of and
receive answers from the Depositor concerning the purchase of the Certificates
and all matters relating thereto or any additional information deemed
necessary to our decision to purchase the Certificates, (d) either (i) we are
not an employee benefit plan that is subject to the Employee Retirement Income
Security Act of 1974, as amended, or a plan or arrangement that is subject to
Section 4975 of the Internal Revenue Code of 1986, as amended, nor are we
acting on behalf of any such plan or arrangement or using the assets of any
such plan or arrangement to effect such acquisition, or (ii) [in the case of a
Certificate that has been the subject of an ERISA-Qualifying Underwriting] we
are purchasing the Certificates with funds contained in an "insurance company
general account" (as defined in Section V(e) of Prohibited Transaction Class
Exemption 95-60 ("PTCE 95-60")) and our purchase and holding of the
Certificates satisfy the requirements for exemptive relief under Sections I
and III of PTCE 95-60, (e) we have not, nor has anyone acting on our behalf
offered, transferred, pledged, sold or otherwise disposed of the Certificates,
any interest in the Certificates or any other similar security to, or
solicited any offer to buy or accept a transfer, pledge or other disposition
of the Certificates, any interest in the Certificates or any other similar
security from, or otherwise approached or negotiated with respect to the
Certificates, any interest in the Certificates or any other similar security
with, any person in any manner, or made any general solicitation by means of
general advertising or in any other manner, or taken any other action, that
would constitute a distribution of the Certificates under the Act or that
would render the disposition of the Certificates a violation of Section 5 of
the Act or require registration pursuant thereto, nor will act, nor has
authorized or will authorize any person to act, in such manner with respect to
the Certificates, (f) we are a "qualified institutional buyer" as that term is
defined in Rule 144A under the Act ("Rule 144A") and have completed either of
the forms of certification to that effect attached hereto as Annex 1 or Annex
2, (g) we are aware that the sale to us is being made in reliance on Rule
144A, (h) we are acquiring the Certificates
L-1
for our own account or for resale pursuant to Rule 144A and further,
understand that such Certificates may be resold, pledged or transferred only
(A) to a person reasonably believed to be a qualified institutional buyer that
purchases for its own account or for the account of a qualified institutional
buyer to whom notice is given that the resale, pledge or transfer is being
made in reliance on Rule 144A, or (B) pursuant to another exemption from
registration under the Act and (i) if we are a corporation purchasing the
Certificates in the State of California, we have a net worth of at least
$14,000,000 according to our most recent audited financial statements.
Very truly yours,
__________________________________
Print Name of Transferee
By:______________________________
Authorized Officer
L-2
ANNEX 1 TO EXHIBIT L
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to
the parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President,
Chief Financial Officer, Senior Vice President or other executive officer of
the Buyer.
2. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A") because (i) the Buyer owned
and/or invested on a discretionary basis $ (1) in securities (except for the
excluded securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance with Rule 144A
and (ii) the Buyer satisfies the criteria in the category marked below.
___ Corporation, etc. The Buyer is a corporation
(other than a bank, savings and loan association or similar
institution), Massachusetts or similar business trust,
partnership, or charitable organization described in Section
501(c)(3) of the Internal Revenue Code of 1986, as amended.
___ Bank. The Buyer (a) is a national bank or
banking institution organized under the laws of any State,
territory or the District of Columbia, the business of which
is substantially confined to banking and is supervised by
the State or territorial banking commission or similar
official or is a foreign bank or equivalent institution, and
(b) has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial statements, a
copy of which is attached hereto.
___ Savings and Loan. The Buyer (a) is a savings
and loan association, building and loan association,
cooperative bank, homestead association or similar
institution, which is supervised and examined by a State or
Federal authority having supervision over any such
institutions or is a foreign savings and loan association or
equivalent institution and (b) has an audited net worth of
at least $25,000,000 as demonstrated in its latest annual
financial statements, a copy of which is attached hereto.
___ Broker-dealer. The Buyer is a dealer registered
pursuant to Section 15 of the Securities Exchange Act of
1934.
___ Insurance Company. The Buyer is an insurance
company whose primary and predominant business activity is
the writing of insurance or the reinsuring of risks
underwritten by insurance companies and which is subject to
supervision by the insurance commissioner or a similar
official or agency of a State, territory or the District of
Columbia.
__________________
1 Buyer must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Buyer is a dealer and, in that case,
Buyer must own and/or invest on a discretionary basis at least
$10,000,000 in securities.
L-3
___ State or Local Plan. The Buyer is a plan
established and maintained by a State, its political
subdivisions, or any agency or instrumentality of the State
or its political subdivisions, for the benefit of its
employees.
___ ERISA Plan. The Buyer is an employee benefit
plan within the meaning of Title I of the Employee
Retirement Income Security Act of 1974.
___ Investment Advisor. The Buyer is an investment
advisor registered under the Investment Advisors Act of 1940.
___ Small Business Investment Company. Buyer is a
small business investment company licensed by the U.S. Small
Business Administration under Section 301(c) or (d) of the
Small Business Investment Act of 1958.
___ Business Development Company. Buyer is a
business development company as defined in Section 202(a)(22)
of the Investment Advisors Act of 1940.
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer
is a dealer, (iii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iv) bank deposit notes and certificates of deposit,
(v) loan participations, (vi) repurchase agreements, (vii) securities owned
but subject to a repurchase agreement and (viii) currency, interest rate and
commodity swaps.
4. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the Buyer, the
Buyer used the cost of such securities to the Buyer and did not include any of
the securities referred to in the preceding paragraph, except (i) where the
Buyer reports its securities holdings in its financial statements on the basis
of their market value, and (ii) no current information with respect to the
cost of those securities has been published. If clause (ii) in the preceding
sentence applies, the securities may be valued at market. Further, in
determining such aggregate amount, the Buyer may have included securities
owned by subsidiaries of the Buyer, but only if such subsidiaries are
consolidated with the Buyer in its financial statements prepared in accordance
with generally accepted accounting principles and if the investments of such
subsidiaries are managed under the Buyer's direction. However, such securities
were not included if the Buyer is a majority-owned, consolidated subsidiary of
another enterprise and the Buyer is not itself a reporting company under the
Securities Exchange Act of 1934, as amended.
5. The Buyer acknowledges that it is familiar with Rule 144A
and understands that the seller to it and other parties related to the
Certificates are relying and will continue to rely on the statements made
herein because one or more sales to the Buyer may be in reliance on Rule 144A.
6. Until the date of purchase of the Rule 144A Securities,
the Buyer will notify each of the parties to which this certification is made
of any changes in the information and conclusions herein. Until such notice is
given, the Buyer's purchase of the Certificates will constitute a
reaffirmation of this certification as of the date of such purchase. In
addition, if the Buyer is a bank or savings and loan is provided above, the
Buyer agrees that it will furnish to such parties updated annual financial
statements promptly after they become available.
L-4
_______________________________________
Print Name of Buyer
By:____________________________________
Name:
Title:
_______________________________________
Date:
L-5
ANNEX 2 TO EXHIBIT L
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Transferees That are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to
the parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President,
Chief Financial Officer or Senior Vice President of the Buyer or, if the Buyer
is a "qualified institutional buyer" as that term is defined in Rule 144A
under the Securities Act of 1933, as amended ("Rule 144A") because Buyer is
part of a Family of Investment Companies (as defined below), is such an
officer of the Adviser.
2. In connection with purchases by Buyer, the Buyer is a
"qualified institutional buyer" as defined in SEC Rule 144A because (i) the
Buyer is an investment company registered under the Investment Company Act of
1940, as amended and (ii) as marked below, the Buyer alone, or the Buyer's
Family of Investment Companies, owned at least $100,000,000 in securities
(other than the excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year. For purposes of determining the amount of
securities owned by the Buyer or the Buyer's Family of Investment Companies,
the cost of such securities was used, except (i) where the Buyer or the
Buyer's Family of Investment Companies reports its securities holdings in its
financial statements on the basis of their market value, and (ii) no current
information with respect to the cost of those securities has been published.
If clause (ii) in the preceding sentence applies, the securities may be valued
at market.
___ The Buyer owned $ in securities (other than the
excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
___ The Buyer is part of a Family of Investment
Companies which owned in the aggregate $ in securities
(other than the excluded securities referred to below) as of
the end of the Buyer's most recent fiscal year (such amount
being calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein
means two or more registered investment companies (or series thereof) that
have the same investment adviser or investment advisers that are affiliated
(by virtue of being majority owned subsidiaries of the same parent or because
one investment adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) securities issued or guaranteed
by the U.S. or any instrumentality thereof, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v) repurchase agreements,
(vi) securities owned but subject to a repurchase agreement and (vii)
currency, interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that
the parties listed in the Rule 144A Transferee Certificate to which this
certification relates are relying and will continue to rely on the statements
made herein because one or more sales to the Buyer will be in reliance on Rule
144A. In addition, the Buyer will only purchase for the Buyer's own account.
L-6
6. Until the date of purchase of the Certificates, the
undersigned will notify the parties listed in the Rule 144A Transferee
Certificate to which this certification relates of any changes in the
information and conclusions herein. Until such notice is given, the Buyer's
purchase of the Certificates will constitute a reaffirmation of this
certification by the undersigned as of the date of such purchase.
_______________________________________
Print Name of Buyer
By:____________________________________
Name:
Title:
_______________________________________
Date:
L-7
EXHIBIT M
REQUEST FOR RELEASE
(for Trustee)
IndyMac MBS, Inc.
Mortgage Pass-Through Certificates
Series 200_-_
Loan Information
----------------
Name of Mortgagor:
Servicer
Loan No.: _____________________________
Trustee
-------
Name: _____________________________
Address: _____________________________
_____________________________
Trustee
Mortgage File No.:
The undersigned Servicer hereby acknowledges that it has received
from Deutsche Bank National Trust Company, as Trustee for the Holders of
Mortgage Pass-Through Certificates, of the above-referenced Series, the
documents referred to below (the "Documents"). All capitalized terms not
otherwise defined in this Request for Release shall have the meanings given
them in the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement") relating to the above-referenced Series among the Trustee, IndyMac
Bank, F.S.B., as Seller and Servicer and IndyMac MBS, Inc., as Depositor.
( ) Mortgage Note dated ___________, 20__, in the original principal sum
of $___________, made by_________________. payable to, or endorsed
to the order of, the Trustee.
( ) Mortgage recorded on ________________ as instrument no. _____________
in the County Recorder's Office of the County of ___________________,
State of ________________ in book/reel/docket _____________________
of official records at page/image ____________________.
( ) Deed of Trust recorded on ______________ as instrument no. __________
in the County Recorder's Office of the County of ____________________,
State of _____________ in book/reel/docket _________________ of
official records at page/image ________________.
( ) Assignment of Mortgage or Deed of Trust to the Trustee, recorded on
___________________ as instrument no. ____________ in the County
Recorder's Office of the County of ___________, State of ____________
in book/reel/docket ___________________ of official records at
page/image _____________.
M-1
( ) Other documents, including any amendments, assignments or other
assumptions of the Mortgage Note or Mortgage.
( )
( )
( )
( )
The undersigned Servicer hereby acknowledges and agrees as follows:
(1) The Servicer shall hold and retain possession
of the Documents in trust for the benefit of the Trustee,
solely for the purposes provided in the Agreement.
(2) The Servicer shall not cause or knowingly
permit the Documents to become subject to, or encumbered by,
any claim, liens, security interest, charges, writs of
attachment or other impositions nor shall the Servicer
assert or seek to assert any claims or rights of setoff to
or against the Documents or any proceeds thereof.
(3) The Servicer shall return each and every
Document previously requested from the Mortgage File to the
Trustee when the need therefor no longer exists, unless the
Mortgage Loan relating to the Documents has been liquidated
and the proceeds thereof have been remitted to the
Certificate Account and except as expressly provided in the
Agreement.
(4) The Documents and any proceeds thereof,
including any proceeds of proceeds, coming into the
possession or control of the Servicer shall at all times be
earmarked for the account of the Trustee, and the Servicer
shall keep the Documents and any proceeds separate and
distinct from all other property in the Servicer's
possession, custody or control.
INDYMAC BANK, F.S.B.
By: _______________________________
Name:
Title:
Date: , 20
M-2
EXHIBIT N
REQUEST FOR RELEASE OF DOCUMENTS
To: Deutsche Bank National Trust Company
Attn: Mortgage Custody Services
Re: The Pooling and Servicing Agreement dated April 1, 2007 among IndyMac
Bank, F.S.B. as Servicer, Inc, IndyMac MBS, Inc. and Deutsche
Bank National Trust Company, as Trustee
---------------------------------------------------------------------
Ladies and Gentlemen:
In connection with the administration of the Mortgage Loans held by
you as Trustee for IndyMac MBS, Inc., we request the release of the Mortgage
Loan File for the Mortgage Loan(s) described below, for the reason indicated.
FT Account #: Pool #:
Mortgagor's Name, Address and Zip Code:
---------------------------------------
Mortgage Loan Number:
---------------------
Reason for Requesting Documents (check one)
-------------------------------------------
_______1. Mortgage Loan paid in full (IndyMac hereby certifies
that all amounts have been received.)
_______2. Mortgage Loan Liquidated (IndyMac hereby certifies that
all proceeds of foreclosure, insurance, or other
liquidation have been finally received.)
_______3. Mortgage Loan in Foreclosure.
_______4. Other (explain): ____________________________________
If item 1 or 2 above is checked, and if all or part of the Mortgage
File was previously released to us, please release to us our previous receipt
on file with you, as well as an additional documents in your possession
relating to the above-specified Mortgage Loan. If item 3 or 4 is checked, upon
return of all of the above documents to you as Trustee, please acknowledge
your receipt by signing in the space indicated below, and returning this form.
N-1
INDYMAC BANK, F.S.B.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
By:________________________
Name:______________________
Title:____________________
Date:______________________
TRUSTEE CONSENT TO RELEASE AND
ACKNOWLEDGEMENT OF RECEIPT
By:________________________
Name:______________________
Title:____________________
Date:______________________
Q-2
EXHIBIT O-1
-----------
FORM OF CERTIFICATION TO BE PROVIDED BY THE DEPOSITOR WITH FORM 10-K
Re: IndyMac MBS, Inc.
IndyMac INDX Mortgage Loan Trust 200_- , Series 200_- __
--------------------------------------------------------
I, [identify the certifying individual], certify that:
1. I have reviewed this report on Form 10-K and all reports
on Form 10-D required to be filed in respect of the period covered by this
report on Form 10-K of IndyMac INDX Mortgage Loan Trust 200 - , Series 200 -
(the "Exchange Act periodic reports");
2. Based on my knowledge, the Exchange Act periodic reports,
taken as a whole, does not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements made, in light
of the circumstances under which such statements were made, not misleading
with respect to the period covered by this report;
3. Based on my knowledge, the distribution, servicing and
other information required to be provided under Form 10-D for the period
covered by this report is included in the Exchange Act periodic reports;
4. Based on my knowledge and the servicer compliance
statement required in this report under Item 1123 of Regulation AB and except
as disclosed in the Exchange Act periodic reports, the servicer has fulfilled
its obligations under the servicing agreement in all material respects; and
5. All of the reports on assessment of compliance with
servicing criteria for asset-backed securities and their related attestation
reports on assessment of compliance with servicing criteria for asset-backed
securities required to be included in this report in accordance with Item 1122
of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 have been included
as an exhibit to this report, except as otherwise disclosed in this report.
Any material instances of noncompliance described in such reports have been
disclosed in this report on Form 10-K.
In giving the certifications above, I have reasonably relied
on information provided to me by the following unaffiliated parties: Deutsche
Bank National Trust Company.
Date: __________________
_____________________________________
[Signature]
[Title]
O-1-1
EXHIBIT O-2
-----------
TRUSTEE'S OFFICER'S CERTIFICATE
I, ____________________, a duly elected and acting officer
of Deutsche Bank National Trust Company (the "Trustee") hereby certify as
follows:
Reference is hereby made to the Pooling and Servicing
Agreement dated as of April 1, 2007 (the "Pooling Agreement") by and among
IndyMac Bank, F.S.B., as seller and servicer, IndyMac MBS, Inc., as depositor
and Deutsche Bank National Trust Company, as trustee, pursuant to which was
created the IndyMac INDX Mortgage Loan Trust 200 - , Series 200 - (the
"Trust"). Capitalized terms used herein but not defined shall have the
meanings assigned to them in the Pooling Agreement.
1. I am an authorized officer of the Trustee and I have
reviewed this annual report on Form 10-K and all reports on Form 10-D required
to be filed in respect of the period covered by this report on Form 10-K of
IndyMac INDX Mortgage Loan Trust 200 - , Series 200 - (the "Exchange Act
Periodic Reports");
2. For purposes of this certificate, "Relevant Information"
means the information in the report on assessment of the Trustee's compliance
with the servicing criteria set forth in Item 1122(d) of Reg AB (the
"Servicing Assessment"), the registered public accounting firm's attestation
provided in accordance with Rules 13a-18 and 15d-18 under the Exchange Act and
Section 1122(b) of Reg AB ( the "Attestation Report") applicable to the
Trustee and the Monthly Statements (excluding information provided, or based
on information provided, by the Servicer or any servicer) and those items in
Exhibit S attached to the Pooling and Servicing Agreement which indicate the
4.03 statement or the Trustee as the responsible party during the Relevant
Year. Based on my knowledge, the Relevant Information, taken as a whole, does
not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading with
respect to the period covered by this annual report; and
3. Based on my knowledge, the distribution information
required to be provided by the Trustee under the Pooling and Servicing
Agreement is included in the Monthly Statements.
4. I am responsible for reviewing the activities performed
by the Trustee, as servicer under the Pooling Agreement during the Relevant
Year. Based upon the review required by the Pooling Agreement and except as
disclosed in the Servicing Assessment or Attestation Report, to the best of my
knowledge, the Trustee has fulfilled its obligations under the Pooling
Agreement throughout the Relevant Year. Relevant Year shall mean 200__.
DATED as of _____________, 200____.
By: ___________________________________
Name:
Title:
O-2-1
EXHIBIT P
---------
[RESERVED]
P-1
EXHIBIT Q
FORM 10-D, FORM 8-K AND FORM 10-K
REPORTING RESPONSIBILITY
As to each item described below, the entity indicated as the Responsible Party
shall be primarily responsible for reporting the information to the Trustee
pursuant to Section 3.24(e). If the Trustee is indicated below as to any item,
then the Trustee is primarily responsible for obtaining that information.
Under Item 1 of Form 10-D: a) items marked "4.03 statement" are required to be
included in the periodic Distribution Date statement under Section 4.03,
provided by the Trustee based on information received from the Servicer; and
b) items marked "Form 10-D report" are required to be in the Form 10-D report
but not the 4.03 statement, provided by the party indicated. Information under
all other Items of Form 10-D is to be included in the Form 10-D report.
Form Item Description Responsible Party
-------------- ------------------------------------------------------------------------------------------------------
10-D Must be filed within 15 days of the distribution date for the mortgage-backed securities.
=========================================================================================
-------------- --------------- ---------------------------------------------------------- ---------------------------
1 Distribution and Pool Performance Information
---------------------------------------------------------- ---------------------------
Item 1121(a) - Distribution and Pool Performance
Information
---------------------------------------------------------- ---------------------------
(1) Any applicable record dates, accrual dates, 4.03 statement
determination dates for calculating distributions
and actual distribution dates for the
distribution period.
---------------------------------------------------------- ---------------------------
(2) Cash flows received and the sources thereof 4.03 statement
for distributions, fees and expenses.
---------------------------------------------------------- ---------------------------
(3) Calculated amounts and distribution of the 4.03 statement
flow of funds for the period itemized by type
and priority of payment, including:
---------------------------------------------------------- ---------------------------
(i) Fees or expenses accrued and paid, 4.03 statement
with an identification of the general purpose
of such fees and the party receiving such fees
or expenses.
---------------------------------------------------------- ---------------------------
(ii) Payments accrued or paid with 4.03 statement
respect to enhancement or other support
identified in Item 1114 of Regulation AB
(such as insurance premiums or other
enhancement maintenance fees), with an
identification of the general purpose of such
payments and the party receiving such payments.
---------------------------------------------------------- ---------------------------
(iii) Principal, interest and other 4.03 statement
distributions accrued and paid on the
mortgage-backed securities by type and
by class or series and any principal or
interest shortfalls or carryovers.
---------------------------------------------------------- ---------------------------
(iv) The amount of excess cash flow or 4.03 statement
excess spread and the disposition of excess cash
flow.
---------------------------------------------------------- ---------------------------
(4) Beginning and ending principal balances of 4.03 statement
the mortgage-backed securities.
---------------------------------------------------------- ---------------------------
(5) Interest rates applicable to the pool 4.03 statement
assets and the mortgage-backed securities,
as applicable.
---------------------------------------------------------- ---------------------------
(6) Beginning and ending balances of 4.03 statement
transaction accounts, such as reserve accounts,
and material
----------------------------------------------------------------------------------------- ---------------------------
P-1
-------------- --------------- ---------------------------------------------------------- ---------------------------
account activity during the period.
---------------------------------------------------------- ---------------------------
(7) Any amounts drawn on any credit enhancement 4.03 statement
or other support identified in Item 1114 of
Regulation AB, as applicable, and
the amount of coverage remaining under any such
enhancement, if known and applicable.
---------------------------------------------------------- ---------------------------
(8) Number and amount of pool assets at the 4.03 statement
beginning and ending of each period, and updated
pool composition information, such as weighted Updated pool composition
average coupon, weighted average life, information fields to be
weighted average remaining term, pool as specified by Depositor
factors and prepayment amounts. from time to time
---------------------------------------------------------- ---------------------------
(9) Delinquency and loss information for the period. 4.03 statement.
In addition, describe any material changes to the
information specified in Item 1100(b)(5) of Regulation Form 10-D report: Servicer
AB regarding the pool assets.
---------------------------------------------------------- ---------------------------
(10) Information on the amount, terms and 4.03 statement
general purpose of any advances made or
reimbursed during the period, including
the general use of funds advanced and the
general source of funds for reimbursements.
---------------------------------------------------------- ---------------------------
(11) Any material modifications, extensions or Form 10-D report:
waivers to pool asset terms, fees, penalties Servicer
or payments during the distribution period or
that have cumulatively become material over time.
---------------------------------------------------------- ---------------------------
(12) Material breaches of pool asset Form 10-D report: Trustee
representations or warranties or transaction (based on actual
covenants. knowledge to the extent
not notified by the
Servicer or the
Depositor)and Depositor
(to the extent of actual
knowledge)
---------------------------------------------------------- ---------------------------
(13) Information on ratio, coverage or other 4.03 statement
tests used for determining any early amortization,
liquidation or other performance trigger and
whether the trigger was met.
---------------------------------------------------------- ---------------------------
(14) Information regarding any new issuance of Form 10-D report:
mortgage-backed securities backed by the same asset Depositor
pool,
[information regarding] any pool asset changes Form 10-D report: Servicer
(other than in connection with a pool asset
converting into cash in accordance with its
terms), such as additions or removals in
connection with a pre-funding or revolving
period and pool asset
-------------- --------------- ---------------------------------------------------------- ---------------------------
Q-2
-------------- --------------- ---------------------------------------------------------- ---------------------------
substitutions and repurchases (and purchase
rates, if applicable), and cash flows available
for future purchases, such as the balances of any
pre-funding or revolving accounts, if applicable.
Disclose any material changes in the solicitation,
credit-granting, underwriting, origination, Form 10-D report: Servicer
acquisition or pool selection criteria or
procedures, as applicable, used to originate,
acquire or select the new pool assets.
---------------------------------------------------------- ---------------------------
Item 1121(b) - Pre-Funding or Revolving Period N/A
Information
Updated pool information as required under Item
1121(b).
--------------- ---------------------------------------------------------- ---------------------------
2 Legal Proceedings
---------------------------------------------------------- ---------------------------
Item 1117 - Legal proceedings pending against
the following entities, or their respective
property, that is material to
Certificateholders, including proceedings known
to be contemplated by governmental authorities:
Sponsor (Seller) Seller
Depositor Depositor
Trustee Trustee
Issuing entity Depositor
Servicer, affiliated Servicer, other Servicer Servicer
servicing 20% or more of pool assets at time of
report, other material servicers
Originator of 20% or more of pool assets as of the Seller
Cut-off Date
Custodian Trustee
--------------- ---------------------------------------------------------- ---------------------------
3 Sales of Securities and Use of Proceeds
---------------------------------------------------------- ---------------------------
Information from Item 2(a) of Part II of Form 10-Q:
With respect to any sale of securities by the Depositor
sponsor, depositor or issuing entity, that are
backed by the same asset pool or are
otherwise issued by the issuing entity, whether
or not registered, provide the sales and use of
proceeds information in Item 701 of Regulation
S-K. Pricing information can be omitted if
securities were not registered.
--------------- ---------------------------------------------------------- ---------------------------
4 Defaults Upon Senior Securities
---------------------------------------------------------- ---------------------------
Information from Item 3 of Part II of Form 10-Q:
-------------- --------------- ---------------------------------------------------------- ---------------------------
Q-3
-------------- --------------- ---------------------------------------------------------- ---------------------------
Report the occurrence of any Event of Default (after
expiration of any grace period and provision of any Trustee
required notice)
--------------- ---------------------------------------------------------- ---------------------------
5 Submission of Matters to a Vote of Security Holders
---------------------------------------------------------- ---------------------------
Information from Item 4 of Part II of Form 10-Q Party submitting the
matter to Holders for
vote
--------------- ---------------------------------------------------------- ---------------------------
6 Significant Obligors of Pool Assets
---------------------------------------------------------- ---------------------------
Item 1112(b) - Significant Obligor Financial Information* N/A
---------------------------------------------------------- ---------------------------
*This information need only be reported on the
Form 10-D for the distribution period in which
updated information is required pursuant to the
Item.
--------------- ---------------------------------------------------------- ---------------------------
7 Significant Enhancement Provider Information
---------------------------------------------------------- ---------------------------
Item 1114(b)(2) - Credit Enhancement Provider Financial Depositor
Information*
Determining applicable disclosure threshold
Obtaining required financial information or effecting
incorporation by reference
---------------------------------------------------------- ---------------------------
Item 1115(b) - Derivative Counterparty Financial Depositor
Information*
Determining current maximum probable exposure
Determining current significance percentage
Obtaining required financial information or
effecting incorporation by reference
---------------------------------------------------------- ---------------------------
*This information need only be reported on the
Form 10-D for the distribution period in which
updated information is required pursuant to the
Items.
--------------- ---------------------------------------------------------- ---------------------------
8 Other Information
---------------------------------------------------------- ---------------------------
Disclose any information required to be The Responsible Party for
reported on Form 8-K during the period covered the applicable Form 8-K
by the Form 10-D but not reported item as indicated below
--------------- ---------------------------------------------------------- ---------------------------
9 Exhibits
---------------------------------------------------------- ---------------------------
Distribution report Trustee
---------------------------------------------------------- ---------------------------
Exhibits required by Item 601 of Regulation S-K, Depositor
such as material agreements
-------------- --------------- ---------------------------------------------------------- ---------------------------
8-K Must be filed within four business days of an event reportable on Form 8-K.
===========================================================================
--------------- ---------------------------------------------------------- ---------------------------
1.01 Entry into a Material Definitive Agreement
-------------- --------------- ---------------------------------------------------------- ---------------------------
Q-4
-------------- --------------- ---------------------------------------------------------- ---------------------------
Disclosure is required regarding entry into or amendment Servicer; or any of the
of any definitive agreement that is material to the following that is a party
securitization, even if depositor is not a party. to the agreement if
Servicer is not: Trustee,
Examples: servicing agreement, custodial agreement. Sponsor, Depositor
Note: disclosure not required as to definitive
agreements that are fully disclosed in the prospectus
--------------- ---------------------------------------------------------- ---------------------------
1.02 Termination of a Material Definitive Agreement
---------------------------------------------------------- ---------------------------
Disclosure is required regarding termination of any Servicer; or any of the
definitive agreement that is material to the following that is a party
securitization (other than expiration in accordance with to the agreement if
its terms), even if depositor is not a party. Servicer is not: Trustee,
Sponsor, Depositor
Examples: servicing agreement, custodial agreement.
--------------- ---------------------------------------------------------- ---------------------------
1.03 Bankruptcy or Receivership
---------------------------------------------------------- ---------------------------
Disclosure is required regarding the bankruptcy Depositor
or receivership, if known to the Depositor,
with respect to any of the following:
Sponsor (Seller), Depositor, Servicer,
affiliated Servicer, other Servicer servicing
20% or more of pool assets at time of report,
other material servicers, Trustee, significant
obligor, credit enhancer (10% or more),
derivatives counterparty
--------------- ---------------------------------------------------------- ---------------------------
2.04 Triggering Events that Accelerate or Increase a Direct
Financial Obligation or an Obligation under an
Off-Balance Sheet Arrangement
---------------------------------------------------------- ---------------------------
Includes an early amortization, performance Servicer/Trustee (to the
trigger or other event, including event of extent of actual
default, that would materially alter the payment knowledge)
priority/distribution of cash flows/amortization
schedule.
Disclosure will be made of events other than
waterfall triggers which are disclosed in the
4.03 statement
--------------- ---------------------------------------------------------- ---------------------------
3.03 Material Modification to Rights of Security Holders
---------------------------------------------------------- ---------------------------
Disclosure is required of any material modification to Trustee
documents defining the rights of Certificateholders,
including the Pooling and Servicing Agreement
--------------- ---------------------------------------------------------- ---------------------------
5.03 Amendments to Articles of Incorporation or Bylaws;
Change in Fiscal Year
---------------------------------------------------------- ---------------------------
Disclosure is required of any amendment "to the Depositor
governing documents of the issuing entity"
-------------- --------------- ---------------------------------------------------------- ---------------------------
Q-5
-------------- --------------- ---------------------------------------------------------- ---------------------------
5.06 Change in Shell Company Status
--------------- ---------------------------------------------------------- ---------------------------
[Not applicable to ABS issuers] Depositor
--------------- ---------------------------------------------------------- ---------------------------
6.01 ABS Informational and Computational Material
---------------------------------------------------------- ---------------------------
[Not included in reports to be filed under Section 3.18] Depositor
--------------- ---------------------------------------------------------- ---------------------------
6.02 Change of Servicer or Trustee
---------------------------------------------------------- ---------------------------
Requires disclosure of any removal, Trustee or Servicer
replacement, substitution or addition of any
servicer, affiliated servicer, other servicer
servicing 10% or more of pool assets at time of
report, other material servicers, certificate
administrator or trustee. Reg AB disclosure
about any new servicer or trustee is also
required.
--------------- ---------------------------------------------------------- ---------------------------
6.03 Change in Credit Enhancement or Other External
Support
---------------------------------------------------------- ---------------------------
Covers termination of any enhancement in manner Depositor or Trustee
other than by its terms, the addition of an
enhancement, or a material change in the
enhancement provided. Applies to external
credit enhancements as well as derivatives.
Reg AB disclosure about any new enhancement
provider is also required.
--------------- ---------------------------------------------------------- ---------------------------
6.04 Failure to Make a Required Distribution Trustee
--------------- ---------------------------------------------------------- ---------------------------
6.05 Securities Act Updating Disclosure
---------------------------------------------------------- ---------------------------
If any material pool characteristic differs by Depositor
5% or more at the time of issuance of
the securities from the description in the
final prospectus, provide updated Reg AB
disclosure about the actual asset pool.
---------------------------------------------------------- ---------------------------
If there are any new servicers or originators Depositor
required to be disclosed under Regulation AB
as a result of the foregoing, provide the
information called for in Items 1108 and 1110
respectively.
--------------- ---------------------------------------------------------- ---------------------------
7.01 Regulation FD Disclosure Depositor
--------------- ---------------------------------------------------------- ---------------------------
8.01 Other Events
---------------------------------------------------------- ---------------------------
Any event, with respect to which information is Depositor
not otherwise called for in Form 8-K,
that the registrant deems of importance to
security holders.
--------------- ---------------------------------------------------------- ---------------------------
9.01 Financial Statements and Exhibits The Responsible Party
applicable to reportable
event
-------------- -------------------------------------------------------------------------- ---------------------------
10-K Must be filed within 90 days of the fiscal year end for the registrant.
=======================================================================
--------------- ---------------------------------------------------------- ---------------------------
9B Other Information
-------------- --------------- ---------------------------------------------------------- ---------------------------
Disclose any information required to be The Responsible Party for
reported on Form 8-K during the fourth quarter the applicable Form 8-K
covered by the Form 10-K but not reported item as indicated above
--------------- ---------------------------------------------------------- ---------------------------
15 Exhibits and Financial Statement Schedules
---------------------------------------------------------- ---------------------------
Item 1112(b) - Significant Obligor Financial Servicer
Information
-------------- --------------- ---------------------------------------------------------- ---------------------------
Q-6
-------------- --------------- ---------------------------------------------------------- ---------------------------
Item 1114(b)(2) - Credit Enhancement Provider
Financial Information Depositor
Determining applicable disclosure threshold
Obtaining required financial information or
effecting incorporation by reference
---------------------------------------------------------- ---------------------------
Item 1115(b) - Derivative Counterparty Financial Depositor
Information
Determining current maximum probable exposure
Determining current significance percentage
Obtaining required financial information or effecting
incorporation by reference
---------------------------------------------------------- ---------------------------
Item 1117 - Legal proceedings pending against
the following entities, or their respective
property, that is material to
Certificateholders, including proceedings known
to be contemplated by governmental authorities:
Sponsor (Seller) Seller
Depositor Depositor
Trustee Trustee
Issuing entity Depositor
Servicer, affiliated Servicer, other Servicer Servicer
servicing 20% or more of pool assets at time of
report, other material servicers
Originator of 20% or more of pool assets as of the Servicer
Cut-off Date
---------------------------------------------------------- ---------------------------
Item 1119 - Affiliations and relationships
between the following entities, or their
respective affiliates, that are material to
Certificateholders:
Sponsor (Seller) Seller
Depositor Depositor
Trustee Trustee (only as to
affiliations between the
Servicer, affiliated Servicer, other Servicer Trustee and such other
servicing 20% or more of pool assets at time parties listed)
of report, other material servicers
Originator Servicer
-------------- --------------- ---------------------------------------------------------- ---------------------------
Q-7
-------------- --------------- ---------------------------------------------------------- ---------------------------
Credit Enhancer/Support Provider
Significant Obligor Depositor
Depositor
Servicer
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Item 1122 - Assessment of Compliance with Servicing Each Party participating
Criteria in the servicing function
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Item 1123 - Servicer Compliance Statement Servicer
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Q-8
EXHIBIT R
FORM OF PERFORMANCE CERTIFICATION
(Trustee)
Re: The Pooling and Servicing Agreement dated as of April 1, 2007
(the "Pooling and Servicing Agreement") among IndyMac
MBS, Inc., as Depositor, IndyMac Bank, F.S.B., as Seller and
Servicer, and the undersigned, as Trustee (the "Trustee")
I, ________________________________, the _______________________ of
the Trustee (the "Trustee"), certify to the Depositor and the Servicer, and
their officers, with the knowledge and intent that they will rely upon this
certification, that:
(i) I have reviewed the report on assessment of the
Trustee's compliance with the servicing criteria set forth in Item
1122(d) of Regulation AB (the "Servicing Criteria"), provided in
accordance with Rules 13a-18 and 15d-18 under Securities Exchange Act
of 1934, as amended (the "Exchange Act") and Item 1122 of Regulation
AB (the "Servicing Assessment"), the registered public accounting
firm's attestation report provided in accordance with Rules 13a-18
and 15d-18 under the Exchange Act and Section 1122(b) of Regulation
AB (the "Attestation Report"), all reports on Form 10-D containing
statements to certificateholders filed in respect of the period
included in the year covered by the annual report of the Trust Fund
(collectively, the "Distribution Date Statements");
(ii) Assuming the accuracy and completeness of the
information delivered to the Trustee by the Servicer as provided in
the Pooling and Servicing Agreement and subject to paragraph (iv)
below, to its knowledge the distribution information determined by
the Trustee and set forth in the Distribution Date Statements
contained in all Form 10-D's included in the year covered by the
annual report of such Trust on Form 10-K for the calendar year 200[
], is complete and does not contain any material misstatement of fact
as of the last day of the period covered by such annual report;
(iii) Based solely on the information delivered to the
Trustee by the Servicer as provided in the Pooling and Servicing
Agreement, the distribution information required under the Pooling
and Servicing Agreement to be contained in the Trust Fund's
Distribution Date Statements is included in such Distribution Date
Statements;
(iv) The Trustee is not certifying as to the accuracy,
completeness or correctness of the information which it received from
the Servicer and did not independently verify or confirm the
accuracy, completeness or correctness of the information provided by
the Servicer;
(v) I am responsible for reviewing the activities performed
by the Trustee as a person "performing a servicing function" under
the Pooling and Servicing Agreement, and based on my knowledge and
the compliance review conducted in preparing the Servicing Assessment
and except as disclosed in the Servicing Assessment or the
Attestation Report, the Trustee has fulfilled its obligations under
the Pooling and Servicing Agreement; and
(vi) The Servicing Assessment and Attestation Report
required to be provided by the Trustee and by Subcontractor, if any,
pursuant to the Pooling and Servicing Agreement, have been provided
to the Servicer and the Depositor. Any material instances of
noncompliance described in such reports have been disclosed to the
Servicer and the Depositor. Any material instance of noncompliance
with the Servicing Criteria has been disclosed in such reports.
R-1
Date: _____________________________
By: ________________________________
Name:
Title:
R-2
EXHIBIT S
FORM OF SERVICING CRITERIA TO BE ADDRESSED IN
ASSESSMENT OF COMPLIANCE STATEMENT
Key:
X - obligation
Where there are multiple checks for criteria the attesting party will identify
in their management assertion that they are attesting only to the portion of
the distribution chain they are responsible for in the related transaction
agreements.
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Reg AB Reference Servicing Criteria Servicer Trustee Notes
----------------- ----------------------------------------- --------- ---------- ------------
1122(d)(1)(i) Policies and procedures are instituted X X
to monitor any performance or other
triggers and events of default in
accordance with the transaction
agreements.
----------------- ----------------------------------------- --------- ---------- ------------
1122(d)(1)(ii) If any material servicing activities X X
are outsourced to third parties,
policies and procedures are instituted
to monitor the third party's
performance and compliance with such
servicing activities.
----------------- ----------------------------------------- --------- ---------- ------------
1122(d)(1)(iii) Any requirements in the transaction NA
agreements to maintain a back-up
servicer for the Pool Assets are
maintained.
----------------- ----------------------------------------- --------- ---------- ------------
1122(d)(1)(iv) A fidelity bond and errors and X
omissions policy is in effect on the
party participating in the servicing
function throughout the reporting
period in the amount of coverage
required by and otherwise in accordance
with the terms of the transaction
agreements.
----------------- ----------------------------------------- --------- ---------- ------------
S-1
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Reg AB Reference Servicing Criteria Primary Trustee Notes
Servicer
----------------- --------------------------------------- ----------- ----------- -----------
1122(d)(2)(i) Payments on pool assets are deposited X X
into the appropriate custodial bank
accounts and related bank clearing
accounts no more than two business
days following receipt, or such other
number of days specified in the
transaction agreements.
----------------- --------------------------------------- ----------- ----------- -----------
1122(d)(2)(ii) Disbursements made via wire transfer X X
on behalf of an obligor or to an
investor are made only by authorized
personnel.
----------------- --------------------------------------- ----------- ----------- -----------
1122(d)(2)(iii) Advances of funds or guarantees X
regarding collections, cash flows or
distributions, and any interest or
other fees charged for such advances,
are made, reviewed and approved as
specified in the transaction
agreements.
----------------- --------------------------------------- ----------- ----------- -----------
1122(d)(2)(iv) The related accounts for the X X
transaction, such as cash reserve
accounts or accounts established as a
form of over collateralization, are
separately maintained (e.g., with
respect to commingling of cash) as
set forth in the transaction
agreements.
----------------- --------------------------------------- ----------- ----------- -----------
1122(d)(2)(v) Each custodial account is maintained X X
at a federally insured depository
institution as set forth in the
transaction agreements. For purposes
of this criterion, "federally insured
depository institution" with respect
to a foreign financial institution
means a foreign financial institution
that meets the requirements of Rule
13k-1(b)(1) of the Securities
Exchange Act.
----------------- --------------------------------------- ----------- ----------- -----------
1122(d)(2)(vi) Unissued checks are safeguarded so as X
to prevent unauthorized access.
----------------- --------------------------------------- ----------- ----------- -----------
1122(d)(2)(vii) Reconciliations are prepared on a X X
monthly basis for all asset-backed
securities related bank accounts,
including custodial accounts and
related bank clearing accounts. These
reconciliations are (A)
mathematically accurate; (B) prepared
within 30 calendar days after the
bank statement cutoff date, or such
other number of days specified in the
transaction agreements; (C) reviewed
and approved by someone other than
the person who prepared the
reconciliation; and (D) contain
explanations for reconciling items.
These reconciling items are resolved
within 90 calendar days of their
original identification, or such
other number of days specified in the
transaction agreements.
----------------- --------------------------------------- ----------- ----------- -----------
S-2
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Reg AB Reference Servicing Criteria Servicer Trustee Notes
----------------- ---------------------------------------- ---------- ---------- -------------
1122(d)(3)(i) Reports to investors, including those X X
to be filed with the Commission, are
maintained in accordance with the
transaction agreements and applicable
Commission requirements. Specifically,
such reports (A) are prepared in
accordance with timeframes and other
terms set forth in the transaction
agreements; (B) provide information
calculated in accordance with the
terms specified in the transaction
agreements; (C) are filed with the
Commission as required by its rules
and regulations; and (D) agree with
investors' or the trustee's records as
to the total unpaid principal balance
and number of Pool Assets serviced by
the Servicer.
----------------- ---------------------------------------- ---------- ---------- -------------
1122(d)(3)(ii) Amounts due to investors are allocated X X
and remitted in accordance with
timeframes, distribution priority and
other terms set forth in the
transaction agreements.
----------------- ---------------------------------------- ---------- ---------- -------------
1122(d)(3)(iii) Disbursements made to an investor are X X
posted within two business days to the
Servicer's investor records, or such
other number of days specified in the
transaction agreements.
----------------- ---------------------------------------- ---------- ---------- -------------
1122(d)(3)(iv) Amounts remitted to investors per the X X
investor reports agree with cancelled
checks, or other form of payment, or
custodial bank statements.
----------------- ---------------------------------------- ---------- ---------- -------------
S-3
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Reg AB Reference Servicing Criteria Servicer Trustee Notes
------------------ ----------------------------------------------- ------------- ----------- --------
1122(d)(4)(i) Collateral or security on pool assets is X X
maintained as required by the transaction
agreements or related pool asset documents.
------------------ ----------------------------------------------- ------------- ----------- --------
1122(d)(4)(ii) Pool assets and related documents are X X
safeguarded as required by the transaction
agreements.
------------------ ----------------------------------------------- ------------- ----------- --------
1122(d)(4)(iii) Any additions, removals or substitutions to X X
the asset pool are made, reviewed and
approved in accordance with any conditions or
requirements in the transaction agreements.
------------------ ----------------------------------------------- ------------- ----------- --------
1122(d)(4)(iv) Payments on pool assets, including any X
payoffs, made in accordance with the related
pool asset documents are posted to the
Servicer's obligor records maintained no more
than two business days after receipt, or such
other number of days specified in the
transaction agreements, and allocated to
principal, interest or other items (e.g.,
escrow) in accordance with the related pool
asset documents.
------------------ ----------------------------------------------- ------------- ----------- --------
1122(d)(4)(v) The Servicer's records regarding the pool X
assets agree with the Servicer's records
with respect to an obligor's unpaid
principal balance.
------------------ ----------------------------------------------- ------------- ----------- --------
1122(d)(4)(vi) Changes with respect to the terms or status X
of an obligor's pool assets (e.g., loan
modifications or re-agings) are made,
reviewed and approved by authorized personnel
in accordance with the transaction agreements and
related pool asset documents.
------------------ ----------------------------------------------- ------------- ----------- --------
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., X
forbearance plans, modifications and deeds in
lieu of foreclosure, foreclosures and
repossessions, as applicable) are initiated,
conducted and concluded in accordance with
the timeframes or other requirements
established by the transaction agreements.
------------------ ----------------------------------------------- ------------- ----------- --------
1122(d)(4)(viii) Records documenting collection efforts are X
maintained during the period a pool asset is
delinquent in accordance with the transaction
agreements. Such records are maintained on at
least a monthly basis, or such other period
specified in the transaction agreements, and
describe the entity's activities in
monitoring delinquent pool assets including,
for example, phone calls, letters and payment
rescheduling plans in cases where delinquency
is deemed temporary (e.g., illness or
unemployment).
------------------ ----------------------------------------------- ------------- ----------- --------
1122(d)(4)(ix) Adjustments to interest rates or rates of X
return for pool assets with variable rates
are computed based on the related pool
asset documents.
------------------ ----------------------------------------------- ------------- ----------- --------
------------------ ----------------------------------------------- ------------- ----------- --------
Reg AB Servicing Criteria Servicer Trustee Notes
------------------ ----------------------------------------------- ------------- ----------- --------
S-4
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Reference
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1122(d)(4)(x) Regarding any funds held in trust for an X
obligor (such as escrow accounts): (A) such
funds are analyzed, in accordance with the
obligor's pool asset documents, on at least
an annual basis, or such other period
specified in the transaction agreements; (B)
interest on such funds is paid, or credited,
to obligors in accordance with applicable
pool asset documents and state laws; and (C)
such funds are returned to the obligor within
30 calendar days of full repayment of the
related pool assets, or such other number of
days specified in the transaction agreements.
------------------ ----------------------------------------------- ------------- ----------- --------
1122(d)(4)(xi) Payments made on behalf of an obligor (such X
as tax or insurance payments) are made on or
before the related penalty or expiration
dates, as indicated on the appropriate bills
or notices for such payments, provided that
such support has been received by the
servicer at least 30 calendar days prior to
these dates, or such other number of days
specified in the transaction agreements.
------------------ ----------------------------------------------- ------------- ----------- --------
1122(d)(4)(xii) Any late payment penalties in connection with X
any payment to be made on behalf of an obligor
are paid from the Servicer's funds and not
charged to the obligor, unless the late
payment was due to the obligor's error or
omission.
------------------ ----------------------------------------------- ------------- ----------- --------
1122(d)(4)(xiii) Disbursements made on behalf of an obligor X
are posted within two business days to the
obligor's records maintained by the servicer,
or such other number of days specified in
the transaction agreements.
------------------ ----------------------------------------------- ------------- ----------- --------
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible X
accounts are recognized and recorded in
accordance with the transaction agreements.
------------------ ----------------------------------------------- ------------- ----------- --------
1122(d)(4)(xv) Any external enhancement or other support, X (with X
identified in Item 1114(a)(1) through (3) or respect
Item 1115 of Regulation AB, is maintained as to a
set forth in the transaction agreements. swap
disclosure
event)
------------------ ----------------------------------------------- ------------- ----------- --------
S-5
EXHIBIT T
[FORM OF] LIST OF ITEM 1119 PARTIES
ASSET BACKED CERTIFICATES
Series 200_-__
[Date]
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T-1
EXHIBIT U
[FORM OF] ▇▇▇▇▇▇▇▇-▇▇▇▇▇ CERTIFICATION
(Replacement Servicer)
Re: Indymac INDX Mortgage Loan Trust 2007-AR11
The undersigned Servicer hereby certifies to the Depositor and its
officers, directors and Affiliates (collectively, the "Certification Parties")
as follows, with the knowledge and intent that the Certification Parties will
rely on this Certification in connection with the certification concerning the
Trust Fund to be signed by an officer of the Depositor and submitted to the
Securities and Exchange Commission pursuant to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002:
1. I have reviewed the servicer compliance statement of the Servicer
provided in accordance with Item 1123 of Regulation AB (the "Compliance
Statement"), the report on assessment of the Servicer's compliance with the
servicing criteria set forth in Item 1122(d) of Regulation AB (the "Servicing
Criteria"), provided in accordance with Rules 13a-18 and 15d-18 under
Securities Exchange Act of 1934, as amended (the "Exchange Act") and Item 1122
of Regulation AB (the "Servicing Assessment"), the registered public
accounting firm's attestation report provided in accordance with Rules 13a-18
and 15d-18 under the Exchange Act and Section 1122(b) of Regulation AB (the
"Attestation Report"), and all servicing reports, officer's certificates and
other information relating to the servicing of the Mortgage Loans by the
Servicer during 200[ ] that were delivered by the Servicer to the Trustee
pursuant to the Agreement (collectively, the "Servicing Information");
2. Based on my knowledge, the Servicing Information, taken as a
whole, does not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made, in the light of
the circumstances under which such statements were made, not misleading with
respect to the period of time covered by the Servicing Information;
3. Based on my knowledge, all of the Servicing Information required
to be provided by the Servicer under the Agreement has been provided to the
Depositor or the Trustee, as applicable;
4. I am responsible for reviewing the activities performed by the
Servicer as servicer under the Servicing Agreement (the "Pooling and Servicing
Agreement") relating to the above-referenced Series, among IndyMac MBS, Inc.,
as Depositor, IndyMac Bank, F.S.B., as Seller and Servicer, and Deutsche Bank
National Trust Company, as Trustee and based on my knowledge and the
compliance review conducted in preparing the Compliance Statement and except
as disclosed in the Compliance Statement, the Pooling and Servicing Assessment
or the Attestation Report, the Servicer has fulfilled its obligations under
the Agreement in all material respects; and
5. The Compliance Statement required to be delivered by the Servicer
pursuant to the Pooling and Servicing Agreement, and the Servicing Assessment
and Attestation Report required to be provided by the Servicer and by any
Reporting Subcontractor pursuant to the Agreement, have been provided to the
Depositor. Any material instances of noncompliance described in such reports
have been disclosed to the Depositor. Any material instance of noncompliance
with the Servicing Criteria has been disclosed in such reports.
U-1
[SERVICER]
By:________________________________
Name:
Title:
Date: __________________________
U-2