EXHIBIT 99.1
The Pooling and Servicing Agreement.
==============================================================================
INDYMAC MBS, INC.
Depositor
INDYMAC BANK, F.S.B.
Seller and Servicer
DEUTSCHE BANK NATIONAL TRUST COMPANY
Trustee
----------------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of March 1, 2006
----------------------------------------
INDYMAC INDX MORTGAGE LOAN TRUST
2006-AR5
MORTGAGE PASS-THROUGH CERTIFICATES
Series 2006-AR5
==============================================================================
TABLE OF CONTENTS
Page
ARTICLE ONE DEFINITIONS ..........................................................................................7
Section 1.01 Definitions............................................................................7
Section 1.02 Rules of Construction.................................................................37
ARTICLE TWO CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES.........................................40
Section 2.01 Conveyance of Mortgage Loans..........................................................40
Section 2.02 Acceptance by the Trustee of the Mortgage Loans.......................................43
Section 2.03 Representations, Warranties, and Covenants of the Seller and the Servicer.............45
Section 2.04 Representations and Warranties of the Depositor as to the Mortgage Loans..............46
Section 2.05 Delivery of Opinion of Counsel in Connection with Substitutions.......................46
Section 2.06 Execution and Delivery of Certificates................................................47
Section 2.07 REMIC Matters.........................................................................47
ARTICLE THREE ADMINISTRATION AND SERVICING OF MORTGAGE LOANS.....................................................48
Section 3.01 Servicer to Service Mortgage Loans....................................................48
Section 3.02 [Reserved]............................................................................49
Section 3.03 Rights of the Depositor and the Trustee in Respect of the Servicer....................49
Section 3.04 [Reserved]............................................................................49
Section 3.05 Trustee to Act as Servicer............................................................49
Section 3.06 Collection of Mortgage Loan Payments; Servicing Accounts; Collection Account;
Certificate Account; Distribution Account.............................................49
Section 3.07 Collection of Taxes, Assessments and Similar Items; Escrow Accounts...................52
Section 3.08 Access to Certain Documentation and Information Regarding the Mortgage Loans..........53
Section 3.09 Permitted Withdrawals from the Certificate Account and the Distribution
Account...............................................................................53
Section 3.10 Maintenance of Hazard Insurance; Maintenance of Primary Insurance Policies............55
Section 3.11 Enforcement of Due-On-Sale Clauses; Assumption Agreements.............................56
Section 3.12 Realization Upon Defaulted Mortgage Loans.............................................57
Section 3.13 Trustee to Cooperate; Release of Mortgage Files.......................................59
Section 3.14 Documents, Records and Funds in Possession of the Servicer to be Held for the
Trustee...............................................................................59
Section 3.15 Servicing Compensation................................................................60
Section 3.16 Access to Certain Documentation.......................................................60
Section 3.17 Annual Statement as to Compliance.....................................................61
Section 3.18 Errors and Omissions Insurance; Fidelity Bonds........................................61
Section 3.19 Notification of Adjustments...........................................................61
Section 3.20 Prepayment Charges....................................................................61
i
ARTICLE FOUR DISTRIBUTIONS AND ADVANCES BY THE SERVICER..........................................................63
Section 4.01 Advances..............................................................................63
Section 4.02 Priorities of Distribution............................................................64
Section 4.03 Cross-Collateralization; Adjustments to Available Funds...............................67
Section 4.04 [Reserved]............................................................................68
Section 4.05 Allocation of Realized Losses.........................................................68
Section 4.06 Monthly Statements to Certificateholders..............................................69
ARTICLE FIVE THE CERTIFICATES....................................................................................70
Section 5.01 The Certificates......................................................................70
Section 5.02 Certificate Register; Registration of Transfer and Exchange of Certificates...........70
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates.....................................74
Section 5.04 Persons Deemed Owners.................................................................74
Section 5.05 Access to List of Certificateholders' Names and Addresses.............................74
Section 5.06 Maintenance of Office or Agency.......................................................75
ARTICLE SIX THE DEPOSITOR AND THE SERVICER.......................................................................76
Section 6.01 Respective Liabilities of the Depositor and the Servicer..............................76
Section 6.02 Merger or Consolidation of the Depositor or the Servicer..............................76
Section 6.03 Limitation on Liability of the Depositor, the Seller, the Servicer, and Others........76
Section 6.04 Limitation on Resignation of the Servicer.............................................77
ARTICLE SEVEN DEFAULT ...........................................................................................78
Section 7.01 Events of Default.....................................................................78
Section 7.02 Trustee to Act; Appointment of Successor..............................................79
Section 7.03 Notification to Certificateholders....................................................80
ARTICLE EIGHT CONCERNING THE TRUSTEE.............................................................................81
Section 8.01 Duties of the Trustee.................................................................81
Section 8.02 Certain Matters Affecting the Trustee.................................................81
Section 8.03 Trustee Not Liable for Certificates or Mortgage Loans.................................83
Section 8.04 Trustee May Own Certificates..........................................................83
Section 8.05 Trustee's Fees and Expenses...........................................................83
Section 8.06 Eligibility Requirements for the Trustee..............................................84
Section 8.07 Resignation and Removal of the Trustee................................................84
Section 8.08 Successor Trustee.....................................................................85
Section 8.09 Merger or Consolidation of the Trustee................................................86
Section 8.10 Appointment of Co-Trustee or Separate Trustee.........................................86
Section 8.11 Tax Matters...........................................................................87
ARTICLE NINE TERMINATION ........................................................................................90
Section 9.01 Termination upon Liquidation or Purchase of the Mortgage Loans........................90
Section 9.02 Final Distribution on the Certificates................................................91
ii
Section 9.03 Additional Termination Requirements...................................................92
ARTICLE TEN MISCELLANEOUS PROVISIONS.............................................................................93
Section 10.01 Amendment.............................................................................93
Section 10.02 Recordation of Agreement; Counterparts................................................94
Section 10.03 Governing Law.........................................................................95
Section 10.04 Intention of Parties..................................................................95
Section 10.05 Notices. .............................................................................95
Section 10.06 Severability of Provisions............................................................96
Section 10.07 Assignment............................................................................96
Section 10.08 Limitation on Rights of Certificateholders............................................96
Section 10.09 Inspection and Audit Rights...........................................................97
Section 10.10 Certificates Nonassessable and Fully Paid.............................................97
Section 10.11 Official Record.......................................................................97
Section 10.12 Protection of Assets..................................................................98
Section 10.13 Qualifying Special Purpose Entity.....................................................98
ARTICLE ELEVEN EXCHANGE ACT REPORTING............................................................................98
Section 11.01 Filing Obligations....................................................................98
Section 11.02 Form 10-D Filings.....................................................................98
Section 11.03 Form 8-K Filings......................................................................99
Section 11.04 Form 10-K Filings....................................................................100
Section 11.05 ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification.........................................................100
Section 11.06 Form 15 Filing.......................................................................101
Section 11.07 Report on Assessment of Compliance and Attestation...................................101
Section 11.08 Use of Subcontractors................................................................102
Section 11.09 Amendments...........................................................................102
iii
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.................................................................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: Form of Class P Certificates...............................................................F-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: Form of Trustee Certification..............................................................O-1
Exhibit P: Reserved...................................................................................P-1
Exhibit Q: [Reserved].................................................................................Q-1
iv
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 March 1, 2006, 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 the second paragraph of Section 3.20 hereof) be treated for
federal income tax purposes as comprising two real estate mortgage investment
conduits (each, a "REMIC" or, in the alternative, "REMIC 1" 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 1 Interests (other than the Class R-1 Interest). REMIC 1 will hold as
assets all property of the Trust Fund. 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 the second paragraph of Section 3.20 hereof will be treated as
paid directly by the Servicer to the Class P Certificates and not as paid by
or through any REMIC created hereunder.
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:
Corresponding
Initial Principal Pass-Through Loan
REMIC 1 Interests Balance Rate 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
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-1 $100 (3) N/A
1-P-2 $100 (3) N/A
1-$100 $100 (3) N/A
R-1...... (4) (4) 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
1
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 corresponding Loan
Group.
(3) The Class 1-P-1, Class 1-P-2 and Class 1-$100 Interests will not bear
interest. The Class 1-P-1 and Class 1-P-2 will be entitled to all Prepayment
Charges collected in respect of the Class P-1 and Class P-2 Certificates,
respectively.
(4) 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 Class
1-P-1, Class 1-P-2 and Class 1-$100 balance equal to the principal balances of
the Class P-1, Class P-2 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 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 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 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 over (ii)
the Certificate Balance of the Senior Certificates (excluding the Class
A-R Certificates) for all
2
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.
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 Certificates may be issued in a different amount):
======================= ======================== ===================== ==================== ========================
Initial Class Pass-Through Minimum Integral Multiples in
Class Designation Certificate Balance Rate Denomination Excess of Minimum
----------------------- ------------------------ --------------------- -------------------- ------------------------
Class 1-A-1 $210,047,000 Variable(1) $ 100,000 $1,000
----------------------- ------------------------ --------------------- -------------------- ------------------------
Class 1-A-2 $23,339,000 Variable(1) $ 100,000 $1,000
----------------------- ------------------------ --------------------- -------------------- ------------------------
Class 2-A-1 $321,352,000 Variable(2) $ 100,000 $1,000
----------------------- ------------------------ --------------------- -------------------- ------------------------
Class 2-A-2 $35,706,000 Variable(2) $ 100,000 $1,000
----------------------- ------------------------ --------------------- -------------------- ------------------------
Class A-R $100 (1) $ 100 N/A
----------------------- ------------------------ --------------------- -------------------- ------------------------
Class B-1 $16,198,000 Variable(3) $ 100,000 $1,000
----------------------- ------------------------ --------------------- -------------------- ------------------------
Class B-2 $10,481,000 Variable(3) $ 100,000 $1,000
----------------------- ------------------------ --------------------- -------------------- ------------------------
Class B-3 $6,670,000 Variable(3) $ 100,000 $1,000
----------------------- ------------------------ --------------------- -------------------- ------------------------
Class B-4 $6,035,000 Variable(3) $ 100,000 $1,000
----------------------- ------------------------ --------------------- -------------------- ------------------------
Class B-5 $3,176,000 Variable(3) $ 100,000 $1,000
----------------------- ------------------------ --------------------- -------------------- ------------------------
Class B-6 $2,223,586 Variable(3) $ 100,000 $1,000
----------------------- ------------------------ --------------------- -------------------- ------------------------
Class P-1 $100 0%(4) $ 100 N/A
----------------------- ------------------------ --------------------- -------------------- ------------------------
Class P-2 $100 0%(5) $ 100 N/A
======================= ======================== ===================== ==================== ========================
(1) The Pass-Through Rate for this Class of Certificates for the Interest
Accrual Period related to each Distribution Date will be a per annum rate
equal to the Weighted Average Adjusted Net Mortgage Rate of the Group 1
Mortgage Loans. The Pass-Through Rate for the Class 1-A-1, Class 1-A-2 and
Class A-R Certificates for the Interest Accrual Period related to the first
Distribution Date is 6.0041% per annum.
(2) The Pass-Through Rate for this Class of Certificates for the Interest
Accrual Period related to each Distribution Date will equal the Weighted
Average Adjusted Net Mortgage Rate of the Group 2 Mortgage Loans. The
Pass-Through Rate for the Class 2-A-1 and Class 2-A-2 Certificates for the
Interest Accrual Period related to the first Distribution Date is 5.8916% per
annum.
(3) The Pass-Through Rate for each Class of Subordinated Certificates for each
Interest Accrual Period for any Distribution Date will be a per annum rate
equal to the Subordinate Pass-Through Rate. The
3
Pass-Through Rate for the Subordinated Certificates for the Interest Accrual
Period related to the first Distribution Date is 5.9361% per annum.
(4) The Class P-1 Certificates will not be entitled to any interest, but will
be entitled to 100% of any Hard Prepayment Charges collected on the Mortgage
Loans.
(5) The Class P-2 Certificates will not be entitled to any interest, but will
be entitled to 100% of any Soft Prepayment Charges collected on the Mortgage
Loans.
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 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-1 and Class P-2 Certificates.
COFI Certificates........................................ None.
Components............................................... None.
Component Certificates................................... None.
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
ERISA-Qualifying Underwriting; and Certificates of any Class
that also does not have or no longer has 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-A-2 and Class A-R Certificates.
4
Group 1 Certificates..................................... Group 1 Senior Certificates and the portion of the Subordinated
Certificates related to Loan Group 1.
Group 2 Senior Certificates.............................. Class 2-A-1 and Class 2-A-2 Certificates.
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............................. None.
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-1, Class P-2, Class B-4, Class B-5 and Class B-6
Certificates.
Rating Agencies.......................................... Moody's and S&P.
Regular Certificates..................................... All Classes of Certificates other than the Class A-R
Certificates.
Residual Certificate..................................... Class A-R Certificates.
Retained Certificates.................................... None.
Senior Certificates...................................... Class 1-A-1, Class 1-A-2, Class 2-A-1, Class 2-A-2 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.
5
Targeted Principal Classes............................... None.
Targeted Principal Component............................. None.
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.
6
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
7
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, each such Class' pro rata interest
(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.
8
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 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) - (iv), 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,
(d) any amount deposited on the related Distribution Account Deposit Date
pursuant to Section 3.10, (e) any Transfer Payment Received, plus interest
thereon and (f) any Transfer Payment Made, plus interest thereon. The Holders
of the Class P-1 and Class P-2 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.
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 having an interest
rate equal to 0%.
Certificate: Any one of the certificates issued by the Trust Fund and
executed by the Trustee in substantially the forms attached as exhibits.
9
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 2006-AR5,
Mortgage Pass-Through Certificates, Series 2006-AR5."
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 have no
Certificate Balances.
Certificate Group: Either of the Group 1 or Group 2 Certificates, 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.
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, Class A-2 Interests.
Class B Interest: Each of the Class B-1, Class B-2 Interests.
Class C Interest: Each of the Class C-1, Class C-2 Interests.
10
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 or
Component, the amount by which the amount described in clause (i) of the
definition of Class Optimal Interest Distribution Amount for such Class or
Component 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 or Component on the related Class Certificate
Balance or Component Notional Amount, as applicable, 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 or Component.
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 or
Component 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 or Component on prior Distribution Dates
pursuant to clause (ii) of the definition of Class Optimal Interest
Distribution Amount.
Closing Date: March 30, 2006.
CMT Index: Not applicable.
Code: The Internal Revenue Code of 1986, including any successor or
amendatory provisions.
COFI: Not applicable.
COFI Certificates: Not applicable.
Collection Account: As defined in Section 3.06(c).
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.
Co-op Shares: Shares issued by a Cooperative Corporation.
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.
11
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-IN06A5 (IndyMac MBS,
Inc., IndyMac INDX Mortgage Loan Trust 2006-AR5, Mortgage Pass-Through
Certificates, Series 2006-AR5), and which is the address to which notices to
and correspondence with the Trustee should be directed.
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: March 1, 2006.
Cut-off Date Pool Principal Balance: $635,227,686.
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).
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:
12
(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 2006-AR5, Mortgage Pass-Through Certificates, Series
2006-AR5." Funds in the 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 after the initial
issuance of the Certificates, or if that day is not a Business Day, the next
Business Day, commencing in April 2006.
13
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 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 the
holding company, but only if ▇▇▇▇▇'▇ is not a Rating Agency) have the highest
short-term ratings of each Rating Agency at the time any amounts are held on
deposit therein, or
(ii) [reserved], or
(iii) a trust account or accounts maintained with the trust department of
a federal or state chartered depository institution or 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.
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
14
(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.
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 related
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 2006-AR5, 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.
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 20-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, $19,056,831, 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.
15
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.
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 prepayments and all 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.
Index: Not applicable.
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: $194,629.
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.
16
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.
Last Scheduled Distribution Date: The Distribution Date in the month
immediately following the month of the latest scheduled maturity date for any
of the Mortgage Loans.
Latest Possible Maturity Date: The Distribution Date following the third
anniversary of the scheduled maturity date of the Mortgage Loan having the
latest scheduled maturity date as of the Cut-off Date.
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.
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 of 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.
17
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.
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.
Moneyline Telerate Page 3750: The display page currently so designated on
the Moneyline Telerate Information Services, Inc. (or any page replacing that
page on that service for the purpose of displaying London inter-bank offered
rates of major banks).
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.
18
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: One-Year CMT 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;
(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;
19
(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.
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 Prepayment Interest Shortfalls for
such Loan Group 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 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.
20
Notional Amount: Not applicable.
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.
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(591) 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.
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, (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 (iv) in the
case of any other Person, signed by an authorized officer of such Person.
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.
Original Applicable Credit Support Percentage: With respect to each of
the following Classes of Subordinated Certificates, the corresponding
percentage described below, as of the Closing Date:
Class B-1.................................... 7.05%
Class B-2.................................... 4.50%
Class B-3.................................... 2.85%
Class B-4.................................... 1.80%
Class B-5.................................... 0.85%
Class B-6.................................... 0.35%
21
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.
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 or Component 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;
22
(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 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.
23
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
(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: With respect to the Planned Principal Classes in the
aggregate and any Distribution Date appearing in the aggregate Principal
Balance Schedule, the amount appearing opposite such Distribution Date for
such Planned Principal Classes.
Planned Principal Classes: As specified in the Preliminary Statement.
Pool Stated Principal Balance: The aggregate Stated Principal Balance of
the Mortgage Loans.
Prepayment Charge: A Hard Prepayment Charge or Soft Prepayment Charge, as
the context may require.
Prepayment Charge Period: As to any Mortgage Loan, the period of time
during which a Prepayment Charge may be imposed.
24
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 repurchased due to a modification of the Mortgage Rate,
(c) the Substitution Adjustment Amount in connection with any Deleted Mortgage
Loan in that Loan Group received with respect to such 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 the principal portion of the Purchase
Price of any Mortgage Loan repurchased by the Seller pursuant to Section 3.12,
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 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.
25
Principal Relocation Payment: A payment from any Loan Group to REMIC 1
Regular 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 March 28, 2006,
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 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.
26
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, 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.
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
27
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 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
28
(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).
SAIF: The Savings Association Insurance Fund, or any successor thereto.
▇▇▇▇▇▇▇▇-▇▇▇▇▇ 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.
29
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 of a fraction the numerator of which is the
aggregate Class Certificate Balance of each Class of Senior Certificates 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 of a fraction, the numerator of which is the aggregate Class
Certificate Balance of each such Class of Senior Certificates (other than the
Notional Amount Certificates) 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 (other than
the Notional Amount Certificates) immediately prior to such 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 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 the 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 March 2009, 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 Loan 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 March 2009, 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
30
Certificate Balance of the Subordinated Certificates as of the Closing Date,
the Senior Prepayment Percentage for each Loan 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 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
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 a 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 of the
related Classes 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 the Distribution Date.
31
Servicing Account: The separate Eligible Account or Accounts created and
maintained pursuant to Section 3.06(b).
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, 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 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, the per annum rate specified
on the Mortgage Loan Schedule.
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 prepayments and all prepayments
in full made within the related
32
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:
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, $6,352,277. 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
33
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 Assumed Balance for each Loan Group immediately prior to
that Distribution Date and (y) the Weighted Average Adjusted Net Mortgage Rate
of the Mortgage Loans in that Loan Group divided by (b) the aggregate Class
Certificate Balance of the Subordinated Certificates 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,
(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
34
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;
(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;
(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: With respect to the Targeted Principal Classes and any
Distribution Date appearing in the Principal Balance Schedules, the applicable
amount appearing opposite such Distribution Date for such Targeted Principal
Classes.
35
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 Seller on the Closing Date that will be deposited by the Trustee 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; and
(v) all proceeds of the conversion, voluntary or involuntary, of any of
the foregoing.
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: 0.0055% 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.
36
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 each Class of
Notional Amount Certificates (the Voting Rights to be allocated among the
holders of Certificates of each Class in accordance with their respective
Percentage Interests), (b) 1% of all Voting Rights shall be allocated to the
Holder of the Class A-R Certificates and (c) the remaining Voting Rights shall
be allocated among Holders of the remaining Classes of Offered 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
37
(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 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,
38
reorganization, and other similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
39
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 $200 into the Certificate Account.
(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 Loan or if the
Mortgage Loan was not a MOM Loan at origination, the original Mortgage
and the
40
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) 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). If in connection with any
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 its
riders).
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
41
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.
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.
The Trustee need not record any assignment that relates to a Mortgage
Loan (a) the Mortgaged Property and Mortgage File relating to which are
located in California or (b) in any other jurisdiction (including Puerto Rico)
under the laws of which, as evidenced by an Opinion of Counsel delivered by
the Seller (at the Seller's expense) to the Trustee, recording the assignment
is not necessary to protect the Trustee's and the Certificateholders' interest
in the related Mortgage Loan. The Seller shall deliver such Opinion of Counsel
within 90 days of the Closing Date.
42
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
(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) The Seller agrees to treat the transfer of the Mortgage Loans to the
Depositor as a sale for all tax, accounting, and regulatory purposes.
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, 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.
43
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.
The Trustee shall deliver written notice to each Rating Agency within 270
days from the Closing Date indicating each Mortgage Loan (a) that has not been
returned by the appropriate recording office or (b) as to which there is a
dispute as to location or status of the Mortgage Loan. The notice shall be
delivered every 90 days thereafter until the related Mortgage Loan is returned
to the Trustee. Any substitution pursuant to (a) above or purchase pursuant to
(b) above shall not be effected before the delivery to the Trustee of the
Opinion of Counsel, if required by Section 2.05, and any substitution pursuant
to (a) above 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 O, 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.
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,
44
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. 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 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
45
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.
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
46
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 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.
47
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.
48
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), 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; Servicing Accounts;
Collection Account; 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) waive
any late payment charge or, subject to Section 3.21, 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, the Servicer may, consistent with the Servicing
49
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) The Servicer shall establish and maintain one or more Servicing
Accounts (the "Servicing Account") into which the Servicer shall deposit on a
daily basis within one Business Day of receipt, 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):
(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 related Servicing Fee; and
(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.
By the Withdrawal Date in each calendar month, the Servicer shall (a)
withdraw from the Servicing Account all amounts on deposit therein pursuant to
clauses (i) and (ii) above (other than amounts attributable to a Principal
Prepayment in Full) and (b) deposit such amounts in the Collection Account.
By the Business Day in each calendar month following the deposit in the
Servicing Account of amounts on deposit therein pursuant to clause (iii) above
or pursuant to any Principal Prepayment in Full, the Servicer shall (a)
withdraw such amounts from the Servicing Account and (b) deposit such amounts
in the Collection Account.
(c) The Servicer shall establish and maintain a Collection Account (the
"Collection Account") into which the Servicer shall deposit, as and when
required by paragraph (b) of this Section 3.06, all
50
amounts required to be deposited into the Collection Account pursuant to that
paragraph. The Collection Account shall be an Eligible Account held for the
benefit of the Certificateholders.
(d) The Servicer shall establish and maintain a Certificate Account into
which the Servicer shall deposit on a daily basis (i) within one Business Day
of deposit in the Collection Account (in the case of items (i) through (iii)
below) and (2) within one Business Day of receipt (in the case of all other
items), except as otherwise specified herein, 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 Servicing Fee and Prepayment Interest Excess;
(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;
(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; and
(ix) all Prepayment Charges collected.
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 shall be
exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments in the nature of late payment charges or
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
51
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.
(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.
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
52
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.
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;
53
(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;
(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 on deposit, 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.
(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 last 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
54
(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 permits. Such costs shall be
recoverable by the Servicer out of late payments 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
55
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 or the Collection Account (as applicable).
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 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
56
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 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.
57
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.
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 the Mortgage Rate on the Mortgage Loan, as modified, is
approximately a prevailing market rate for newly-originated Mortgage Loans
having similar terms 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
58
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 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
59
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, the Collection
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.
As compensation for its activities hereunder, the Servicer may retain or
withdraw from the Servicing Account, the Collection Account, or the
Certificate Account the Servicing Fee for each Mortgage Loan for the related
Distribution Date. 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.
The Servicer may retain or withdraw from the Servicing Account, the
Collection Account, or 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.
Additional servicing compensation in the form of Excess Proceeds,
Prepayment Interest Excess, assumption fees, late payment charges and all
income net of any losses realized from Permitted Investments shall be retained
by 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 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.
60
Section 3.17 Annual Statement as to Compliance.
(a) By March 1 of each year, commencing with 2007, the Servicer shall
deliver to the Trustee via electronic mail to ▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇.▇▇▇ 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
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.
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
61
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.
If a Prepayment Charge is waived other than as permitted by the prior
sentence, then the Servicer is required to pay the amount of such waived
Prepayment Charge, for the benefit of the Holders of the related Class of
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.
62
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.
63
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 priority 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, sequentially:
(a) to the Class A-R Certificates until its Class
Certificate Balance is reduced to zero;
(b) concurrently, to the Class 1-A-1 and Class 1-A-2
Certificates, pro rata, until their respective Class
Certificate Balances 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
priority 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 and Class
2-A-2 Certificates, pro rata, until their respective Class
Certificate Balances are reduced to zero;
64
(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 both Loan Groups
remaining after making the distributions described in Sections 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;
65
(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 $200 held in trust for the Class P-1 and
Class P-2 Certificates.
On each Distribution Date, all amounts representing Hard Prepayment
Charges and Soft Prepayment Charges received during the related Prepayment
Period will be distributed to the holders of the Class P-1 and Class P-2
Certificates, respectively. On the Distribution Date immediately following the
expiration of the latest Prepayment Charge Period of the Mortgage Loans, the
$100 held in trust for each Class of Class P Certificates will be distributed
to the holders of the related Class of Class P 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), if, with respect to any Class of Subordinated Certificates, on any
Distribution Date the sum of the related Class
66
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)(4). 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 Class Certificate Balance of the
Senior Certificates in a Loan Group is greater than the aggregate Stated
Principal Balance of the Mortgage Loans in such Loan Group (each, an
"Undercollateralized Group"), then the Trustee shall reduce the Available
Funds of the other Loan Group(s) that are 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 Balance of the
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."
67
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 of Senior Certificates of the related
Senior Certificate Group, pro rata on the basis of their respective Class
Certificate Balances, in each case immediately prior to the related
Distribution Date, until the respective Class Certificate Balance of each
such Class is reduced to zero, provided, however, that any Realized
Losses other than Excess Losses on the Group 1 Mortgage Loans that would
otherwise be allocated to the Class 1-A-1 Certificates will instead be
allocated to the Class 1-A-2 Certificates until its Class Certificate
Balance is reduced to zero and any Realized Losses other than Excess
Losses on the Group 2 Mortgage Loans that would otherwise be allocated to
the Class 2-A-1 Certificates will instead be allocated to the Class 2-A-2
Certificates until its Class Certificate Balance is reduced to zero.
(B) On each Distribution Date, Excess Losses on the Mortgage Loans
in a Loan Group shall be allocated pro rata among the Classes of Senior
Certificates (other than the Notional Amount 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 of Senior Certificates
in the related Senior Certificate Group, pro rata, on the basis of their
respective Class Certificate Balances 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 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 of Senior
Certificates (other than the Notional Amount Certificates) based on their
respective Class Certificate Balances 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
68
such Distribution Date (after giving effect to Principal Prepayments in the
Prepayment Period related to such Due Date).
(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.
(a) 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 such Distribution
Date;
(ii) the amount of funds received from the Servicer for such
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 Trustee Fee for such Distribution Date;
(iv) the aggregate amount of expenses paid from amounts on deposit
in (x) the Certificate Account and (y) the Distribution Account;
(v) the amount of the distribution allocable to principal,
separately identifying the aggregate amount of any Principal Prepayments
and Liquidation Proceeds included therein;
(vi) 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;
(vii) 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;
(viii) the aggregate amount of Realized Losses and in the aggregate
incurred and Subsequent Recoveries, if any, received during the preceding
calendar month and aggregate Realized Losses through such Distribution
Date;
(ix) the Class Certificate Balance of each Class of Certificates
before and after giving effect to the distribution of principal on the
Distribution Date;
(x) the Pass-Through Rate for each Class of Certificates with
respect to the Distribution Date;
(xi) the number of Mortgage Loans and the Pool Stated Principal
Balance as the first day of the related Due Period and the last day of
the related Due Period;
(xii) as of the last day of the related Due Period:
(A) the weighted average mortgage rate of the Mortgage Loans,
and
(B) the weighted average remaining term to maturity of the
Mortgage Loans;
(xiii) the number and aggregate outstanding balance of the Mortgage
Loans in each Loan Group 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,
as of the close of business on the last day of the calendar month
preceding the Distribution Date;
(xiv) 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 such month and (B) delinquent sixty (60) days or
more (determined in the same manner as for determining Scheduled Payment
delinquencies that result in a Mortgage Loan being a 60+ Day Delinquent
Loan) on the Due Date in such month;
(xv) 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 and the date of
acquisition thereof;
(xvi) the total number and principal balance of any REO Properties
(and market value, if available) as of the close of business on the
Determination Date preceding the Distribution Date;
(xvii) the aggregate amount of Principal Prepayments received
during the related Prepayment Period and the number of Mortgage Loans
subject to such Principal Prepayments;
(xiii) 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 Distribution Date;
(xix) 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 Distribution Date;
(xx) the aggregate number and outstanding principal balance of
Mortgage Loans repurchased during the related Due Period due to material
breaches of representations and warranties regarding such Mortgage Loans;
(xxi) each Senior Prepayment Percentage and Subordinated Prepayment
Percentage for such Distribution Date;
(xxii) each Senior Percentage and Subordinated Percentage for such
Distribution Date;
(xxiii) 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;
(xxiv) with respect to the second Distribution Date, the number and
aggregate balance of any Delayed Delivery Mortgage Loans not delivered
within the time periods specified in the definition of Delayed Delivery
Mortgage Loans; and
(xxv) Prepayment Charges collected, waived, and paid by 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.
(b) 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.
(c) 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 (a)(i) and (a)(ii) 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 comparable
information shall be provided by the Trustee pursuant to any requirements of
the Code as from time to time in effect.
69
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.
70
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
71
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
72
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.
73
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
74
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 Trustee 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
Trustee will give prompt written notice to the Certificateholders of any
change in such location of any such office or agency.
75
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
76
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 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 legal 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.
77
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
78
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.
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 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
79
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.
(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.
80
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,
81
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
82
(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
83
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
84
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
85
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
86
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;
87
(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
floating 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 last 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
88
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).
89
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 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.
90
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 (or on their Notional Amount, if applicable) 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 or Notional Amounts 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
91
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.
92
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, 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 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,
93
(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.
94
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:
95
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 IN06A5, Series 2006-AR5, 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.
96
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.
97
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
98
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.
Except with respect to the Form 10-D to be filed following the first
Distribution Date, 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
99
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.
Section 11.04 Form 10-K Filings.
Prior to March 30th of each year, commencing in 2007 (or such earlier
date as may be required by the Exchange Act), the Depositor shall prepare and
file on behalf of the Trust Fund a Form 10-K, in form and substance as
required by the Exchange Act. A senior officer in charge of the servicing
function of the Servicer shall sign each Form 10-K filed on behalf of the
Trust Fund. Such Form 10-K shall include as exhibits each (i) annual
compliance statement described under Section 3.17, (ii) annual report on
assessments of compliance with servicing criteria described under Section
11.07 and (iii) 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. No later than March 15 of each year, commencing in 2007, the
Servicer and the Trustee shall notify the Depositor and the Servicer of any
Form 10-K Disclosure Item, together with a description of any such Form 10-K
Disclosure Item in form and substance reasonably acceptable to the Depositor.
Additionally, each of the Servicer and the Trustee shall provide, and shall
cause each Reporting Subcontractor retained by the Servicer or the Trustee, as
applicable, the following information no later than March 15 of each year in
which a Form 10-K is required to be filed on behalf of the Trust Fund: (i) if
such Person's report on assessment of compliance with servicing criteria
described under Section 11.07 or related registered public accounting firm
attestation report described under Section 11.07 identifies any material
instance of noncompliance, notification of such instance of noncompliance and
(ii) if any such Person's report on assessment of compliance with servicing
criteria or related registered public accounting firm attestation report is
not provided to be filed as an exhibit to such Form 10-K, information
detailing the explanation why such report is not included.
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 2007, 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 Depositor 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 Trustee or the Depositor has actual knowledge of
information material to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification, the Trustee or the
Depositor, as the case may be, shall promptly notify the Servicer and the
Depositor. 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
100
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.
Section 11.07 Report on Assessment of Compliance and Attestation.
(a) On or before March 15 of each calendar year, commencing in 2007,
unless no reporting obligation under the Exchange Act exists at such time with
respect to the Trust Fund:
(i) Each of the Servicer and the Trustee shall deliver to the
Depositor and the Servicer a report (in form and substance reasonably
satisfactory to the Depositor) 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
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 Depositor and the Servicer, and
each of their respective officers and directors shall be entitled to rely on
upon each such servicing criteria assessment.
(ii) Each of the Servicer and the Trustee shall deliver to the
Depositor and the Servicer a report of a registered public accounting firm
reasonably acceptable to the Depositor 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 Reporting Subcontractor to
deliver 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 Reporting Subcontractor to deliver
to the Depositor and the Servicer 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
101
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 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 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
Depositor 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
102
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.
* * * * * *
103
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: Senior 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: Senior Vice President
STATE OF CALIFORNIA )
: ss.:
COUNTY OF Los Angeles )
On this 27th day of March, 2006, before me, personally appeared ▇▇▇▇
▇▇▇▇▇▇▇▇, known to me to be a Senior 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 27th day of March, 2006, before me, personally appeared ▇▇▇▇▇▇
▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, known to me to be an Associate and an
Associate, 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 March, 2006, before me, personally appeared ▇▇▇▇
▇▇▇▇▇▇▇▇, known to me to be a Senior 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 2006-AR5
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
S-II-1
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 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.
(7) Notwithstanding any federal or state law to the
contrary, the Servicer shall not impose such Prepayment Charge at any
time when the mortgage is accelerated as a result of the borrower's
default in making the scheduled payments.
(8) The Servicer will transmit full-file credit reporting
data for each Mortgage Loan pursuant to ▇▇▇▇▇▇ ▇▇▇ Guide Announcement
95-19 and that for each Mortgage Loan, Servicer agrees it shall
report one of the following statuses each month as follows: new
origination, current, delinquent (30-, 60-, 90-days, etc.),
foreclosed, or charged-off.
S-II-2
Schedule III
INDYMAC MBS, INC.
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-AR5
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 date of origination of each Mortgage Loan,
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-III-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) To the best of the Seller's knowledge, 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) To the best of the Seller's knowledge, 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. To the best of the Seller's knowledge, 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.
S-III-2
(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.
(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 Cut-off 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) To the best of the Seller's knowledge, 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) To the best of the Seller's knowledge, 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.
S-III-3
(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.
(26) Approximately 0.08% of the Group 1 Mortgage Loans by
aggregate Stated Principal Balance of the Group 1 Mortgage Loans are
Cooperative Loans.
(27) [Reserved].
(28) 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.
(29) 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.
(30) [Reserved].
(31) No proceeds from any Mortgage Loan underlying the
Certificates were used to finance single-premium credit insurance
policies.
(32) 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.
(34) No Mortgage Loan is subject to the requirements of the
Home Ownership and Equity Protection Act of 1994.
(35) No borrower was encouraged or required to select a
Mortgage Loan product offered by the Mortgage Loan's originator that
is a higher cost product designed for less creditworthy borrowers,
unless at the time of the Mortgage Loan's origination, such borrower
did not qualify taking into account credit history and debt-to-income
ratios, for a lower-cost credit product then offered by the Seller or
any affiliate of the Seller. If, at the time of loan application, the
borrower may have qualified for a lower-cost credit product then
offered by any mortgage lending affiliate of the Seller, the Seller
referred the borrower's application to such affiliate for
underwriting consideration.
(36) The methodology used in underwriting the extension of
credit for each Mortgage Loan employs objective mathematical
principles that relate the borrower's income, assets and liabilities
to the proposed payment and such underwriting methodology does not
rely on the extent of the borrower's equity in the collateral as the
principal determining factor in approving such credit extension. Such
underwriting methodology confirmed that at the time of origination
(application/approval) the borrower had a reasonable ability to make
timely payments on the Mortgage Loan.
(37) With respect to any Mortgage Loan that contains a
provision permitting imposition of a premium upon a prepayment prior
to maturity: (i) prior to the Mortgage Loan's origination, the
borrower agreed to such premium in exchange for a monetary benefit,
including but not
S-III-4
limited to an interest rate or fee reduction, (ii) prior to the
Mortgage Loan's origination, the borrower was offered the option of
obtaining a mortgage loan that did not require payment of such a
premium and (iii) the Prepayment Charge is disclosed to the borrower
in the loan documents pursuant to applicable state and federal law.
(38) No borrower was required to purchase any credit life,
disability, accident or health insurance product as a condition of
obtaining the extension of credit. No borrower obtained a prepaid
single-premium credit life, disability, accident or health insurance
policy in connection with the origination of the Mortgage Loan; no
proceeds from any Mortgage Loan were used to purchase single premium
credit insurance policies as part of the origination of, or as a
condition to closing, such Mortgage Loan.
(39) All points and fees related to each Mortgage Loan were
disclosed in writing to the borrower in accordance with applicable
state and federal law and regulation. Except in the case of a
Mortgage Loan in an original principal amount of less than $60,000
that would have resulted in an unprofitable origination, no borrower
was charged "points and fees" (whether or not financed) in an amount
greater than 5% of the principal amount of such loan, such 5%
limitation calculated in accordance with ▇▇▇▇▇▇ Mae's anti-predatory
lending requirements as set forth in the ▇▇▇▇▇▇ Mae Selling Guide.
(40) All fees and charges (including finance charges),
whether or not financed, assessed, collected or to be collected in
connection with the origination and servicing of each Mortgage Loan
has been disclosed in writing to the borrower in accordance with
applicable state and federal law and regulation.
(41) Each Mortgage Loan was in compliance with the
anti-predatory lending eligibility for purchase requirements of
▇▇▇▇▇▇ Mae's Selling Guide.
(42) 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.).
(43) 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.
(44) 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 5.6
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.
S-III-5
(45) 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.
(46) 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.
S-III-6
SCHEDULE IV
[Reserved].
S-IV-1
SCHEDULE V
FORM OF MONTHLY REPORT
S-V-1
EXHIBIT A
[FORM OF SENIOR 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").
[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
[RESERVED].
D-1
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]
E-4
EXHIBIT F
[FORM OF CLASS P 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-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
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 Collection Account and 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-3
* * *
F-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-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-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-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-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-9
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) a duly 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-1
FORM OF DELAY DELIVERY CERTIFICATION
[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) a duly executed assignment of the Mortgage to "Deutsche Bank
National Trust Company, as trustee under the Pooling and
Servicing Agreement dated as of March 1, 2006, 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) A duly 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:
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.
* * *
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 ____________, 2__.
-------------------------------
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.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Secondary Marketing, Transaction Management
Deutsche Bank National Trust Company
▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Trust Administration, 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.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Secondary Marketing, Transaction Management
Deutsche Bank National Trust Company
▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Trust Administration, Series 200 -
Re: IndyMac MBS, Inc.
Mortgage Pass-Through Certificates, Series 200 -, Class
-------------------------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above 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.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Secondary Marketing, Transaction Management
Deutsche Bank National Trust Company
▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Trust Administration, Series 200 -
Re: IndyMac MBS, Inc.
Mortgage Pass-Through Certificates, Series 200 -, Class
-------------------------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above 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
______________________________
1 Buyer must own and/or invest on a discretionary basis at
least $100,000,0000 in sdecurities unles Buyer is a dealer, and, in
that case, Buyer must own and/or invest on a discretionary basis at
least $10,000,0000 in Securities.
L-3
insurance commissioner or a similar official or agency of
a State, territory or the District of Columbia.
___ 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 March 1, 2006 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:______________________
N-2
EXHIBIT O
_________
[RESERVED]
O-1
EXHIBIT P
---------
[RESERVED]
P-1
EXHIBIT Q
---------
[RESERVED]
Q-1
EXHIBIT R
FORM OF PERFORMANCE CERTIFICATION
(Trustee)
Re: The Pooling and Servicing Agreement dated as of March 1,
2006 (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
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 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.
----------------- ----------------------------------------- --------- ---------- ------------
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
----------------- ----------------------------------------- --------- ---------- ------------
Reg AB Primary
Reference Servicing Criteria Servicer Trustee Notes
----------------- ----------------------------------------- --------- ---------- ------------
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 to X
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
----------------- ----------------------------------------- --------- ---------- ------------
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
----------------- ----------------------------------------- --------- ---------- ------------
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 X X
to 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 X
status 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 X
(e.g., 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 X
are 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.
---------------- ----------------------------------------- --------- ---------- ------------
S-4
----------------- ----------------------------------------- --------- ---------- ------------
Reg AB
Reference Servicing Criteria Servicer Trustee Notes
----------------- ----------------------------------------- --------- ---------- ------------
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 X
(such 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 X
with 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 X
obligor 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 X
uncollectible accounts are recognized and
recorded in accordance with the
transaction agreements.
----------------- ----------------------------------------- ------------- ----------- -------
1122(d)(4)(xv) Any external enhancement or other X (with X
support, identified in Item respect to
1114(a)(1) through (3) or Item 1115 of a swap
Regulation AB, is maintained as set forth disclosure
in the transaction agreements. event)
---------------- ----------------------------------------- ----------- ---------- ----------
S-5
EXHIBIT T
[FORM OF] LIST OF ITEM 1119 PARTIES
ASSET BACKED CERTIFICATES
Series 200_-__
[Date]
---------------------------------- --------------------------------------------
Party Contact Information
---------------------------------- --------------------------------------------
---------------------------------- --------------------------------------------
---------------------------------- --------------------------------------------
---------------------------------- --------------------------------------------
---------------------------------- --------------------------------------------
---------------------------------- --------------------------------------------
---------------------------------- --------------------------------------------
T-1
EXHIBIT U
[FORM OF] ▇▇▇▇▇▇▇▇-▇▇▇▇▇ CERTIFICATION
(Replacement of Servicer)
U-1