EXHIBIT 99.1
------------
============================================================================
INDYMAC ABS, INC.
Depositor
INDYMAC BANK, F.S.B.
Seller and Master Servicer
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.
Trustee
----------------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of June 1, 2001
----------------------------------------
HOME EQUITY MORTGAGE LOAN ASSET-BACKED TRUST
Series SPMD 2001-B
HOME EQUITY MORTGAGE LOAN ASSET-BACKED CERTIFICATES
Series SPMD 2001-B
===========================================================================
Table of Contents
Page
----
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions ..................................................1
Section 1.02. Rules of Construction........................................33
ARTICLE TWO
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES
Section 2.01. Conveyance of Mortgage Loans..................................1
Section 2.02. Acceptance by the Trustee of the Mortgage Loans...............5
Section 2.03. Representations, Warranties, and Covenants of the
Seller and the Master Servicer................................8
Section 2.04. Representations and Warranties of the Depositor as to
the Mortgage Loans...........................................10
Section 2.05. Delivery of Opinion of Counsel in Connection with
Substitutions and Repurchases................................11
Section 2.06. Execution and Delivery of Certificates.......................11
Section 2.07. REMIC Matters................................................12
Section 2.08. Covenants of the Master Servicer.............................12
Section 2.09. Subsequent Transfers.........................................12
Section 2.10. Mandatory Prepayment.........................................16
ARTICLE THREE
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01. Master Servicer to Service Mortgage Loans.....................1
Section 3.02. Subservicing; Enforcement of the Obligations of
Subservicers..................................................1
Section 3.03. [Reserved]....................................................2
Section 3.04. No Contractual Relationship Between Subservicers and
the Trustee...................................................2
Section 3.05. Trustee to Act as Master Servicer.............................2
Section 3.06. Collection of Mortgage Loan Payments; Servicing
Accounts; Collection Account; Certificate Account;
Distribution Account; Pre-Funding Account; Capitalized
Interest Account..............................................3
Section 3.07. Collection of Taxes, Assessments and Similar Items;
Escrow Accounts...............................................9
Section 3.08. Access to Certain Documentation and Information
Regarding the Mortgage Loans..................................9
Section 3.09. Permitted Withdrawals from the Certificate Account, the
Distribution Account and the Excess Reserve Fund
Account......................................................10
Section 3.10. Maintenance of Hazard Insurance; Maintenance of Primary
Insurance Policies...........................................12
Section 3.11. Enforcement of Due-On-Sale Clauses; Assumption
Agreements...................................................13
i
Section 3.12. Realization Upon Defaulted Mortgage Loans; Repurchase
of Certain Mortgage Loans....................................15
Section 3.13. Trustee to Cooperate; Release of Mortgage Files..............18
Section 3.14. Documents, Records and Funds in Possession of the
Master Servicer to be Held for the Trustee...................19
Section 3.15. Servicing Compensation.......................................19
Section 3.16. Access to Certain Documentation..............................20
Section 3.17. Annual Statement as to Compliance............................20
Section 3.18. Annual Independent Public Accountants' Servicing
Statement; Financial Statements..............................21
Section 3.19. Errors and Omissions Insurance; Fidelity Bonds...............21
Section 3.20. Prepayment Charges...........................................22
ARTICLE FOUR
DISTRIBUTIONS AND ADVANCES BY THE MASTER SERVICER
Section 4.01. Advances......................................................1
Section 4.02. Priorities of Distribution....................................1
Section 4.03. Monthly Statements to Certificateholders......................4
Section 4.04. [Reserved]....................................................7
Section 4.05. [Reserved]....................................................7
Section 4.06. [Reserved]....................................................7
Section 4.07. Certain Matters Relating to the Determination of LIBOR........7
ARTICLE FIVE
THE CERTIFICATES
Section 5.01. The Certificates..............................................1
Section 5.02. Certificate Register; Registration of Transfer and
Exchange of Certificates......................................2
Section 5.03. Mutilated, Destroyed, Lost or Stolen Certificates.............7
Section 5.04. Persons Deemed Owners.........................................7
Section 5.05. Access to List of Certificateholders' Names and
Addresses.....................................................7
Section 5.06. Maintenance of Office or Agency...............................8
ARTICLE SIX
THE DEPOSITOR AND THE MASTER SERVICER
Section 6.01. Respective Liabilities of the Depositor and the Master
Servicer......................................................1
Section 6.02. Merger or Consolidation of the Depositor or the Master
Servicer......................................................1
Section 6.03. Limitation on Liability of the Depositor, the Seller,
the Master Servicer and Others................................1
Section 6.04. Limitation on Resignation of the Master Servicer..............2
ii
ARTICLE SEVEN
DEFAULT
Section 7.01. Events of Default.............................................1
Section 7.02. Trustee to Act; Appointment of Successor......................2
Section 7.03. Notification to Certificateholders............................3
ARTICLE EIGHT
CONCERNING THE TRUSTEE
Section 8.01. Duties of the Trustee.........................................1
Section 8.02. Certain Matters Affecting the Trustee.........................2
Section 8.03. Trustee Not Liable for Certificates or Mortgage Loans.........3
Section 8.04. Trustee May Own Certificates..................................3
Section 8.05. Trustee's Fees and Expenses...................................3
Section 8.06. Eligibility Requirements for the Trustee......................4
Section 8.07. Resignation and Removal of the Trustee........................4
Section 8.08. Successor Trustee.............................................5
Section 8.09. Merger or Consolidation of the Trustee........................6
Section 8.10. Appointment of Co-Trustee or Separate Trustee.................6
Section 8.11. Tax Matters...................................................7
Section 8.12. Periodic Filings.............................................10
Section 8.13. [Reserved]...................................................10
Section 8.14. Tax Classification of the Excess Reserve Fund Account........10
ARTICLE NINE
TERMINATION
Section 9.01. Termination upon Liquidation or Purchase of the
Mortgage Loans................................................1
Section 9.02. Final Distribution on the Certificates........................1
Section 9.03. Additional Termination Requirements...........................3
ARTICLE TEN
MISCELLANEOUS PROVISIONS
Section 10.01. Amendment.....................................................1
Section 10.02. Recordation of Agreement; Counterparts........................3
Section 10.03. Governing Law.................................................3
Section 10.04. Intention of Parties..........................................3
Section 10.05. Notices.......................................................4
Section 10.06. Severability of Provisions....................................5
Section 10.07. Assignment....................................................5
Section 10.08. Limitation on Rights of Certificateholders....................5
Section 10.09. Inspection and Audit Rights...................................6
Section 10.10. Certificates Nonassessable and Fully Paid.....................6
Section 10.11. Official Record...............................................6
Section 10.12. Qualifying Special Purpose Entity.............................6
iii
SCHEDULES
Schedule I: Mortgage Loan Schedule.................................. S-I-1
Schedule II: Representations and Warranties of the
Seller/Master Servicer................................. S-II-1
Schedule III: Representations and Warranties as to
the Mortgage Loans.....................................S-III-1
Schedule IV: Planned Balanced Schedules..............................S-IV-1
EXHIBITS
Exhibit A: Form of Class A, M and B Certificate.......................A-1
Exhibit B: Form of Class P Certificate................................B-1
Exhibit C: Form of Class R Certificate................................C-1
Exhibit D: Form of Class X Certificate................................D-1
Exhibit E: Form of Reverse of Certificates............................E-1
Exhibit F: [Reserved].................................................F-1
Exhibit G: Form of Initial Certification of Trustee...................G-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: [Reserved].................................................K-1
Exhibit L: Form of Rule 144A Letter...................................L-1
Exhibit M: Form of Request for Release (for Trustee)..................M-1
Exhibit N: Form of Request for Release (Mortgage Loan
Paid in Full, Repurchased and Released)....................N-1
Exhibit O: [Reserved].................................................O-1
Exhibit Q: Form of Subsequent Transfer Agreement......................Q-1
iv
THIS POOLING AND SERVICING AGREEMENT, dated as of June 1, 2001, among
INDYMAC ABS, 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 Master Servicer (in that capacity, the "Master
Servicer"), and BANKERS TRUST COMPANY OF CALIFORNIA, N.A., a national banking
association, as trustee (the "Trustee"),
WITNESSETH THAT
In consideration of the mutual agreements herein contained, the parties
agree as follows.
PRELIMINARY STATEMENT
The Trustee shall elect to treat each of the segregated pools of assets
described below as a real estate mortgage investment conduit (each a "REMIC"
or, in the alternative, REMIC 1, and REMIC 2, REMIC 2 also being referred to
as the "Upper Tier REMIC"). Each Certificate, other than the Class R
Certificates, represents ownership of a regular interest in the Upper Tier
REMIC for purposes of the REMIC Provisions. In addition, the Offered
Certificates represent an entitlement to receive payments from the Excess
Reserve Fund Account maintained by the Trustee pursuant to section 3.06(e).
The Class R Certificate represents ownership of the sole class of residual
interest in each of REMIC 1, and the Upper Tier REMIC for purposes of the
REMIC Provisions. The Upper Tier REMIC shall hold as its assets the several
classes of uncertificated Lower Tier Interests in REMIC 1, other than the
Class LT1-R Interest, and each such Lower Tier Interest is hereby designated
as regular interests in REMIC 1 for purposes of the REMIC Provisions. REMIC 1
shall hold as its assets the property of the Trust Fund other than the Lower
Tier Interests in REMIC 1, the Pre-Funding Account, the Capitalized Interest
Account, and the Excess Reserve Fund Account. The startup day for each REMIC
created hereby for purposes of the REMIC Provisions is the Closing Date. In
addition, for purposes of the REMIC Provisions, the latest possible maturity
date for each regular interest in each REMIC created hereby is set forth in
section 9.01 of this agreement.
Although the Class P Certificate represents an interest in the Trust
Fund, it does not represent an interest in any of the REMICs created under
this Agreement.
REMIC 1
The following table sets forth (or describes) the class designation,
interest rate, and initial principal amount for each class of REMIC 1 Lower
Tier Interests.
1
REMIC 1 REMIC 1
Lower Tier Class Lower Tier Initial Class
Designation Interest Rate Principal Amount
----------- ------------- ----------------
Class LT1AF-1 (1) $14,341,500.00
Class LT1AF-2 (1) $8,063,250.00
Class LT1AF-3 (1) $6,397,500.00
Class LT1AF-4 (1) $5,610,750.00
Class LT1AF-5 (1) $4,839,000.00
Class LT1AF-6 (1) $4,361,250.00
Class LT1MF-1 (1) $3,937,500.00
Class LT1MF-2 (1) $3,281,250.00
Class LT1BF-1 (1) $2,843,750.00
Class LT1-P (1) 0
Class LT1AV (1) $33,386,500.00
Class LT1- Accrual (1) (2)
Class LT1-Group 1a (3) (4)
Class LT1-Group 1b (3) (4)
Class LT1-Group 2a (5) (6)
Class LT1-Group 2b (5) (6)
Class LT1-R N/a $ 0.00
(1) The Adjusted Mortgage WAC Rate.
(2) The difference of (a) product of the Mortgage Loans principal balance
multiplied by 50%, over (b) the principal balance of Class LT1AF-1,
Class LT1AF-2, Class LT1AF-3, Class LT1AF-4, Class LT1AF-5, Class
LT1AF-6, Class LT1-AV, Class LT1MF-1, Class LT1MF-2, Class LT1BF-1,
and Class LT1-P.
(3) The Adjusted Group 1 Mortgage WAC Rate.
(4) The product of Loan Group
1 multiplied by 25%.
(5) The Adjusted Group 2 Mortgage WAC Rate.
(6) The product of Loan Group 2 multiplied by 25%.
(7) The Adjusted Mortgage WAC Rate.
On each Distribution Date, 25% of the increase in the Subordination
Amount will be payable as a reduction of the principal balances of the REMIC 1
Accretion Directed Classes (each such class will be reduced by an amount equal
to 25% of any increase in the Subordination Amount that is attributable to a
reduction in the principal balance of its Corresponding Class) and will be
accrued and added to the principal balance of the Class LT1-Accrual Interest.
All payments of scheduled principal and prepayments of principal generated by
the Mortgage Loans shall be allocated 25% to the Class LT1-Accrual, and 25% to
the REMIC 1 Accretion Directed Classes (principal payments shall be allocated
among such
2
REMIC 1 Accretion Directed Classes in an amount equal to 25% of the
principal amounts allocated to their respective Corresponding Classes), 50% to
the Class LT1 Group 1a, Class LT1 Group 1b Interests, the Class LT1 Group 2a
and Class LT1 Group 2b Interests (principal payments shall be allocated among
such Interests in an amount equal to 25% of the principal amounts allocated to
their respective Group's Mortgage Loans) until paid in full. Applied Realized
Loss Amounts shall be applied so that after all distributions have been made
on each Distribution Date (i) the principal balances of each of the REMIC 1
Accretion Directed Classes is equal to 25% of the principal balance of their
Corresponding Class, (ii) the Class LT1-Accrual Interest is equal to 50% of
the principal balance of the Mortgage Loans less the principal balance of the
other REMIC 1 Accretion Directed Classes regular interests, (iii) the Class
LT1- Group 1a and Class LT1 Group 1b Interests principal balance,
respectively, is equal to 25% of the Group 1 Mortgage Loans, and (iv) the
Class LT1- Group 2a and Class LT1 Group 2b Interests principal balance is
equal to 25% of the Group 2 Mortgage Loans.
REMIC 2
The following table sets forth (or describes) the class designation,
interest rate, and principal amount for each class of Upper Tier REMIC
Interests.
Upper Tier Upper Tier Initial Upper Tier Corresponding
Class Designation Interest Rate Principal Amount Certificate
----------------- ------------- ---------------- -----------
Class AF-1 4.866% (1) $ 57,366,000.00 Class LT1AF-1
Class AF-2 5.240% (1) $ 32,253,000.00 Class LT1AF-2
Class AF-3 5.692%(1) $ 25,590,000.00 Class LT1AF-3
Class AF-4 6.407%(1) $ 22,443,000.00 Class LT1AF-4
Class AF-5 7.005%(1) $ 19,356,000.00 Class LT1AF-5
Class AF-6 6.477%(1) $ 17,445,000.00 Class LT1AF-6
Class MF-1 6.829%(1) $ 15,750,000.00 Class LT1MF-1
Class MF-2 7.323%(1) $ 13,125,000.00 Class LT1MF-2
Class BF-1 7.825%(1) $ 11,375,000.00 Class LT1BF-1
Class AV (2) $ 133,546,000.00 Class LT1AV
Class X (3) (3)
Class R 0% $ 100.00 N/A
(1) Or, if the Group 1 WAC Cap is less, the Group 1 WAC Cap. For federal
income tax purposes, the Group 1 WAC Cap will equal the weighted
average rate of the Class LT1- Group 1a and Class LT1 Group 1b
Interests.
(2) The sum of LIBOR plus the applicable Pass-Through Margin, or, if the
Group 2 WAC Cap is less, the Group 2 WAC Cap. For federal income tax
purposes, the
3
Group 1 WAC Cap will equal the weighted average rate of the Class
LT1 Group 1a and Class LT1 Group 1b Interests.
(3) The Class X Certificate will have a notional balance equal to the
principal balance of the Mortgage Loans determined as of the
beginning of each Interest Accrual Period and, a pass through rate
equal to the excess of: (i) the Adjusted Mortgage WAC Rate over (ii)
the product of: (A) four and (B) the weighted average Pass-Through
Rate of the REMIC 1 Regular Interests, where the Class LT1- Accrual,
Class LT1 Group 1 and the Class LT1 Group 2 Regular Interests are
subject to a cap equal to zero and all other REMIC 1 Accretion
Directed Classes are subject to a cap equal to the Pass-Through-Rate
on its Corresponding Class set forth in this preliminary statement.
The minimum denomination for each Class of Certificates, other than the
Class P, Class R, and the Class X Certificates, will be $25,000. The Class P,
Class R, and the Class X Certificates will each represent a 100% Percentage
Interest in such class.
Set forth below is designations of Classes of Certificates to the
categories used herein:
Book-Entry Certificates..........All Classes of
Certificates other than the Physical
Certificates.
Group 1 Certificates.............Class AF-1, Class AF-2, Class AF-3, Class
AF-4, Class AF-5, and Class AF-6 Certificates.
Group 2 Certificates.............Class AV Certificates.
Group 1 Class A Certificates.....Class AF-1, Class
AF-2, Class AF-3, Class AF-4, Class AF-5, and
Class AF-6 Certificates.
Group 2 Class A Certificates.....Class AV Certificates.
Mezzanine Certificates...........Class MF-1 and Class MF-2 Certificates.
Subordinated Certificates........Mezzanine Certificates and Class BF
Certificates.
Adjustable Rate Certificates.....Group 2 Certificates.
Fixed Rate Certificates..........Group 1 Certificates and
Class MF-1, Class MF-2, and Class BF-1
Certificates.
ERISA-Restricted Certificates....Class R, Class P, and Class X Certificates.
Floating Rate Certificates.......Adjustable Rate Certificates.
LIBOR Certificates...............Adjustable Rate Certificates.
Offered Certificates.............All Classes of Certificates other than the
Private Certificates.
Physical Certificates............Class R, Class P, and Class X Certificates.
4
Private Certificates.............Class X and Class P Certificates.
Rating Agencies..................▇▇▇▇▇'▇, S&P, and Fitch.
Regular Certificates.............All Classes of Certificates
other than the Class R and Class P
Certificates.
REMIC 1 Accretion
Directed Classes Class ..........Class LT1-AF-1, Class LT1-AF-2,
Class LT1-AF-3, Class LT1-AF-4,
Class LT1-AF-5, Class LT1-AF-6,
Class LT1-AV, Class LT1-MF-1, Class LT1-MF-2,
and Class LT1-BF-1.
Residual Certificates ...........Class R Certificates.
References to "Class A" are references to Certificates of either or
both Certificate Groups of similar designations, as the context requires.
5
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions.
Unless the context requires a different meaning, capitalized terms are
used in this Agreement as defined below.
Accrued Certificate Interest Distribution Amount: For any Distribution
Date for each Class of Certificates (other than the Class P, Class R, and
Class X Certificates), the amount of interest accrued during the related
Interest Accrual Period at the applicable Pass-Through Rate on the related
Class Certificate Balance immediately before the Distribution Date.
Adjusted Group 1 Mortgage WAC Rate: the weighted average of the Adjusted
Net Mortgage Rates in effect on the beginning of the related Remittance Period
for the Group 1 Mortgage Loans.
Adjusted Group 2 Mortgage WAC Rate: the weighted average of the Adjusted
Net Mortgage Rates in effect on the beginning of the related Remittance Period
for the Group 2 Mortgage Loans.
Adjusted Mortgage Rate: As to each Mortgage Loan and at any time, the per
annum rate equal to the Mortgage Rate less the Master Servicing Fee Rate.
Adjusted Mortgage WAC Rate: the weighted average of the Adjusted Net
Mortgage Rates in effect on the beginning of the related Remittance Period for
the Group 1 and Group 2 Mortgage Loans.
Adjusted Net Mortgage Rate: As to each Mortgage Loan and at any time, the
per annum rate equal to the Mortgage Rate less the Expense Fee Rate.
Adjustment Date: As to any Mortgage Loan in Loan Group 2, the first Due
Date on which the related Mortgage Rate adjusts as provided in the related
Mortgage Note and each Due Date thereafter on which the Mortgage Rate adjusts
as provided in the related Mortgage Note.
Advance: The payment required to be made by the Master Servicer for any
Distribution Date pursuant to Section 4.01, the amount of that payment being
equal to the aggregate of payments of principal and interest (net of the
Master Servicing Fee and the Servicing Fee) on the Mortgage Loans that were
due during the related Remittance Period and not received as of the close of
business on the related Determination Date, less the aggregate amount of any
delinquent payments that the Master Servicer has determined would constitute a
Nonrecoverable Advance if advanced.
AF-6 Share: The product of the Group 1 Principal Distribution Amount for
the relevant Distribution Date and a fraction whose numerator is the Class
Certificate Balance of the Class
I-1
AF-6 Certificates immediately before that Distribution Date and whose
denominator is the aggregate Class Certificate Balances of the Group 1 Class A
Certificates immediately before that Distribution Date.
Agreement: This Pooling and Servicing Agreement.
Amount Held for Future Distribution: As to the Certificates in either
Certificate Group on any Distribution Date, the aggregate amount held in the
Certificate Account at the close of business on the related Determination Date
on account of (i) Principal Prepayments and Liquidation Proceeds on the
Mortgage Loans received after the end of the preceding calendar month and (ii)
all Scheduled Payments on the Mortgage Loans due after the end of the related
Remittance Period.
Applied Realized Loss Amount: For any Distribution Date, the excess of
(i) for the Fixed Rate Certificates, the aggregate Class Certificate
Balance of the Fixed Rate Certificates after distributions of principal on the
Distribution Date over the aggregate Stated Principal Balance of the Mortgage
Loans in Loan Group 1 as of the last day of the preceding Remittance Period
plus the amount in the Pre-Funding Account excluding investment earnings, and
(ii) for the Adjustable Rate Certificates, the aggregate Class
Certificate Balance of the Adjustable Rate Certificates after distributions of
principal on the Distribution Date over the aggregate Stated Principal Balance
of the Mortgage Loans in Loan Group 2 as of the last day of the preceding
Remittance Period plus the amount in the Pre-Funding Account excluding
investment earnings.
Available Funds: For any Distribution Date are the excess of receipts
over expenses.
The receipts are the sum of
(i) all scheduled installments of interest (net of the related Expense
Fees) and principal due on the Due Date on the Mortgage Loans in the related
Remittance Period and received by the related Determination Date, together
with any related Advances;
(ii) all Insurance Proceeds and Liquidation Proceeds during the preceding
calendar month (in each case, net of unreimbursed expenses incurred in
connection with a liquidation or foreclosure);
(iii) all partial or full prepayments on the Mortgage Loans received
during the preceding calendar month together with all Compensating Interest;
(iv) the Unused Pre-Funding Amount;
(v) the Capitalized Interest Requirement; and
I-2
(vi) amounts received for the Distribution Date as the Substitution
Adjustment Amount or purchase price of a Deleted Mortgage Loan or a Mortgage
Loan repurchased by the Seller or the Master Servicer as of the Distribution
Date.
The expenses are the sum of
(i) amounts in reimbursement for Advances previously made with respect to
the Mortgage Loans and other amounts reimbursable to the Master Servicer with
respect to the Mortgage Loans pursuant to the Agreement;
(ii) the Trustee's Fee; and
(iii) the Mortgage Insurance Premium.
Basic Principal Distribution Amount: For any Distribution Date, the
excess of (i) the Principal Remittance Amount for the Distribution Date over
(ii) the Excess Subordinated Amount for the Distribution Date.
Blanket Mortgage: The 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, or 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.
Capitalized Interest Account: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 3.06 in the name of the Trustee
for the benefit of the Certificateholders and designated "Bankers Trust
Company of California, N.A., in trust for registered holders of IndyMac Home
Equity Mortgage Loan Asset-Backed Certificates, Series SPMD 2001-B." Funds in
the Capitalized Interest Account (other than investment income) shall be held
in trust for the Certificateholders for the uses and purposes in this
Agreement and shall not be a part of any REMIC created under this Agreement.
Any investment income earned from Permitted Investments made with funds in the
Capitalized Interest Account will be for the account of the Seller.
Capitalized Interest Requirement: Zero.
Certificate: Any one of the Certificates executed by the Trustee in
substantially the forms attached as exhibits.
Certificate Account: The separate Eligible Account or Accounts created
and maintained by the Master Servicer pursuant to Section 3.06(c) with a
depository institution in the name of the Master 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 Home Equity Mortgage Loan
Asset-Backed Certificates, Series SPMD 2001-B."
I-3
Certificate Balance: For any Class of Certificates (other than the Class
X Certificates) at any date, the maximum dollar amount of principal to which
the Holders of the Certificates of the Class is then entitled, such amount
being equal to the Denomination of the Class minus all distributions of
principal previously made with respect thereto and in the case of any
Subordinated Certificates, reduced by any Applied Realized Loss Amounts
applicable to the Class of Subordinated Certificates. The Class X Certificates
have no Certificate Balance.
Certificate Group: Any of the Certificate Group 1 Certificates or the
Certificate Group 2 Certificates, as applicable.
Certificate Owner: Of a Book-Entry Certificate, the Person who is the
beneficial owner of the Book-Entry Certificate.
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 unless the Depositor or its affiliates
own 100% of the Percentage Interests evidenced by a Class of Certificates, in
which case 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.
Class: All Certificates bearing the same class designation as set forth
in the Preliminary Statement.
Class A Principal Distribution Amount: For any Distribution Date, the
excess of
(i) the aggregate Class Certificate Balance of the Class A Certificates
before the Distribution Date over
(ii) the lesser of
(A) 76.00% of the aggregate Stated Principal Balance of all of
the Mortgage Loans plus amounts on deposit in the Pre-Funding Account
as of the last day of the related Remittance Period and
(B) the Stated Principal Balances of all of the Mortgage Loans
as of the last day of the related Remittance Period plus amounts on
deposit in the Pre-Funding Account minus $1,750,000.
I-4
Class B Principal Distribution Amount: For any Distribution Date on which
the Class Certificate Balances of the Class A, Class MF-1, and Class MF-2
Certificates have been reduced to zero, the Class B Principal Distribution
Amount is the lesser of (x) the Class Certificate Balance of the Class B
Certificates and (y) the Principal Distribution Amount. Otherwise, for any
Distribution Date, the excess of
(i) the sum of
(A) the aggregate Class Certificate Balance of the Class A
Certificates (after taking into account distribution of the Class A
Principal Distribution Amount on the Distribution Date),
(B) the Class Certificate Balance of the Class MF-1
Certificates (after taking into account distribution of the Class M-1
Principal Distribution Amount on the Distribution Date),
(C) the Class Certificate Balance of the Class MF-2
Certificates (after taking into account distribution of the Class M-2
Principal Distribution Amount for the Distribution Date), and
(D) the Class Certificate Balance of the Class B Certificates
before the Distribution Date over
(ii) the lesser of
(A) 99.00% of the aggregate Stated Principal Balance of all of
the Mortgage Loans plus amounts in the Pre-Funding Account as of the
last day of the related Remittance Period and
(B) the Stated Principal Balances of all of the Mortgage Loans
as of the last day of the related Remittance Period plus amounts in
the Pre-Funding Account minus $1,750,000.
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 the date.
Class M-1 Principal Distribution Amount: For any Distribution Date, the
excess of
(i) the sum of
(A) the aggregate Class Certificate Balance of the Class A
Certificates (after taking into account distribution of the Class A
Principal Distribution Amount on the Distribution Date), and
(B) the Class Certificate Balance of the Class MF-1
Certificates before the Distribution Date over
(ii) the lesser of
I-5
(A) 85.00% of the aggregate Stated Principal Balance of all of
the Mortgage Loans plus amounts in the Pre-Funding Account as of the
last day of the related Remittance Period and
(B) the Stated Principal Balances of all of the Mortgage Loans
as of the last day of the related Remittance Period plus amounts in
the Pre-Funding Account minus $1,750,000.
Class M-2 Principal Distribution Amount: For any Distribution Date, the
excess of
(i) the sum of
(A) the aggregate Class Certificate Balance of the Class A
Certificates (after taking into account distribution of the Class A
Principal Distribution Amount on the Distribution Date),
(B) the Class Certificate Balance of the Class MF-1
Certificates (after taking into account distribution of the Class M-1
Principal Distribution Amount on the Distribution Date), and
(C) the Class Certificate Balance of the Class MF-2
Certificates before the Distribution Date over
(ii) the lesser of
(A) 92.50% of the aggregate Stated Principal Balance of all of
the Mortgage Loans plus amounts in the Pre-Funding Account as of the
last day of the related Remittance Period and
(B) the Stated Principal Balances of all of the Mortgage Loans
as of the last day of the related Remittance Period plus amounts in
the Pre-Funding Account minus $1,750,000.
Class R Certificates: the Class LT1-R and the Class R Certificate.
Class X Distributable Amount: On any Distribution Date, the amount of
interest that has accrued on the Class X Regular Interests but that has not
been distributed on the Class X Certificates on prior Distribution Dates.
Closing Date: June 28, 2001.
Code: The Internal Revenue Code of 1986, including any successor or
amendatory provisions.
Collateral Value: For any Mortgage Loan, the Collateral Value of the
related Mortgaged Property shall be, other than for Mortgage Loans the
proceeds of which were used for a Refinance Loan, the lesser of (i) the
appraised value determined in an appraisal obtained by the originator at
origination of the Mortgage Loan and (ii) the sales price for the Mortgaged
I-6
Property. In the case of Refinance Loans, the Collateral Value of the related
Mortgaged Property is their appraised value determined in an appraisal
obtained at the time of refinancing.
Collection Account: As defined in Section 3.06(b).
Combined Loan-to-Value Ratio: For any Mortgage Loan at any time, the
ratio of
(i) the sum of (a) the original principal balance of the Mortgage Loan
and (b) the outstanding principal balance at the date of origination of the
Mortgage Loan of any senior mortgage loan, or in the case of any open-ended
senior mortgage loan, the maximum available line of credit with respect to the
Mortgage Loan at origination, regardless of any lesser amount actually
outstanding at the date of origination of the Mortgage Loan, to
(ii) the Collateral Value of the Mortgage Loan.
Compensating Interest: For any Distribution Date, the lesser of (i) any
Prepayment Interest Shortfalls during the applicable Remittance Period and
(ii) 0.25% multiplied by one-twelfth multiplied by the aggregate Stated
Principal Balance of the Mortgage Loans as of the first day of the prior
month.
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.
Coop Shares: Shares issued by a Cooperative Corporation.
Cooperative Loan: Any Mortgage Loan secured by Coop Shares and a
Proprietary Lease.
Cooperative Property: The real property and improvements owned by the
Cooperative Corporation, including the allocation of individual dwelling units
to the holders of the Coop 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: Mortgage Administration-IN01C2 (IndyMac
ABS, Inc., Home Equity Mortgage Loan Asset-Backed Trust, Series SPMD 2001-B),
facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇ and which is the address to which notices to and
correspondence with the Trustee should be directed.
Corresponding Class: The class of interests in the REMIC 1 created under
this Agreement that correspond to the Class of interests in the Upper Tier
REMIC are as provided in the Preliminary Statement.
I-7
Cut-off Date: For each Initial Mortgage Loan, June 1, 2001; for each
Subsequent Mortgage Loan, the later of its date of origination and July 1,
2001.
Cut-off Date Pool Principal Balance: For any Cut-off Date, the aggregate
Stated Principal Balance of all Mortgage Loans as of that date.
Cut-off Date Principal Balance: As to any Mortgage Loan, its Stated
Principal Balance as of the close of business on the related 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 that results in a
permanent forgiveness of principal.
Debt Service Reduction Mortgage Loan: Any Mortgage Loan that became the
subject of a Debt Service Reduction.
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 Delivery Mortgage Loans: (i) The Initial Mortgage Loans identified
on the Mortgage Loan Schedule for which all or a portion of a related Mortgage
File is not delivered to the Trustee by the Closing Date, and (ii) all
Subsequent Mortgage Loans. The Depositor shall deliver the Mortgage Files to
the Trustee:
(A) for at least 70% of the Initial Mortgage Loans, not later than the
Closing Date,
(B) for the remaining 30% of the Initial Mortgage Loans, not later than
five Business Days after the Closing Date,
(C) for at least 90% of the Subsequent Mortgage Loans conveyed on a
Subsequent Transfer Date, not later than twenty-one days after the Subsequent
Transfer Date, and
(D) for the remaining 10% of the Subsequent Mortgage Loans conveyed on
the related Subsequent Transfer Date, not later than thirty days after the
relevant Subsequent Transfer Date. To the extent that the Seller is in
possession of any Mortgage Files for any Delay Delivery Loan, until delivery
of the Mortgage File to the Trustee as provided in Section 2.01, the Seller
shall hold the files as Master Servicer, as agent and in trust for the
Trustee.
I-8
Deleted Mortgage Loan: As defined in Section 2.03(c).
Denomination: For each Certificate, the amount on the face of the
Certificate as the "Initial Certificate Balance of this Certificate" or the
Percentage Interest appearing on the face of the Certificate.
Depositor: IndyMac ABS, 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 Uniform Commercial Code of the State of
New York.
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(g) in the name of the
Trustee for the benefit of the Certificateholders and designated "Bankers
Trust Company of California, N.A. in trust for registered holders of IndyMac
Home Equity Mortgage Loan Asset-Backed Certificates, Series SPMD 2001-B."
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 July 2001.
Due Date: For any Mortgage Loan, the first day of the month in which the
related Scheduled Payment is due.
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
I-9
(ii) an account in a depository institution or trust company that is
insured by the FDIC or the SAIF (to the limits established by the FDIC or the
SAIF) and the uninsured deposits in which accounts are otherwise secured such
that, as evidenced by an Opinion of Counsel delivered to the Trustee and to
each Rating Agency, the Certificateholders have a claim on the funds in the
account or a perfected first priority security interest against any collateral
(which shall be limited to Permitted Investments) securing the funds in the
account that is superior to claims of any other depositors or creditors of the
depository institution or trust company in which the account is maintained, 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.
Eligible Repurchase Month: As defined in Section 3.12(b) hereof.
ERISA: The Employee Retirement Income Security Act of 1974.
ERISA-Qualifying Underwriting: A best efforts or firm commitment
underwriting or private placement that meets the requirements of Prohibited
Transaction Exemption 2000-58, 65 Fed. Reg. 67765 (2000) (or any successor
thereto), or any substantially similar administrative exemption granted by the
U.S. Department of Labor.
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 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 Master Servicer as
Nonrecoverable Advances with respect to the Mortgage Loan pursuant to Section
3.09(a)(ii), over
(b) the sum of (i) the unpaid principal balance of the Liquidated
Mortgage Loan as of the Due Date in the month in which the Mortgage Loan
became a Liquidated Mortgage Loan plus (ii) accrued interest at the Mortgage
Rate from the Due Date for which interest was last paid or advanced (and not
reimbursed) to Certificateholders up to the Due Date applicable to the
Distribution Date following the calendar month during which the liquidation
occurred.
Excess Reserve Fund 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
I-10
Certificateholders and designated "Bankers Trust Company of California, N.A.
in trust for registered holders of IndyMac Home Equity Mortgage Loan
Asset-Backed Trust, Series SPMD 2001-B." Funds in the Excess Reserve Fund
Account shall be held in trust for the Certificateholders for the uses and
purposes set forth in this Agreement. The Excess Reserve Fund Account will not
be an asset of any REMIC.
Excess Subordinated Amount: For any Distribution Date, the excess of (a)
the Subordinated Amount on the Distribution Date over (b) the Specified
Subordinated Amount for the Distribution Date.
Expense Fees: As to each Mortgage Loan, the sum of the related Master
Servicing Fee, Servicing Fee, Trustee Fee, and any lender-paid primary
mortgage insurance premium.
Expense Fee Rate: As to each Mortgage Loan, the sum of the related Master
Servicing Fee Rate, Servicing Fee Rate, Trustee Fee Rate, and the rate at
which lender-paid primary mortgage insurance premiums are calculated.
Extra Principal Distribution Amount: As of any Distribution Date, the
lesser of (x) the Total Monthly Excess Spread for the Distribution Date and
(y) the Subordination Deficiency for the Distribution Date.
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.
Final Scheduled Payment Date: The Final Scheduled Payment Date for each
Class of Certificates is:
Final Scheduled
Payment Date
---------------------
Class AF-1 Certificates............................... December 25, 2019
Class AF-2 Certificates............................... March 25, 2024
Class AF-3 Certificates............................... March 25, 2027
Class AF-4 Certificates............................... May 25, 2029
Class AF-5 Certificates............................... April 25, 2031
Class AF-6 Certificates............................... January 25, 2031
Class MF-1 Certificates............................... February 25, 2031
Class MF-2 Certificates............................... December 25, 2030
Class BF Certificates................................. June 25, 2030
Class AV Certificates................................. April 25, 2031
Class R Certificates.................................. August 25, ▇▇▇▇
▇-▇▇
▇▇▇▇▇▇: The Financial Institutions Reform, Recovery and Enforcement Act
of 1989.
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 SPMD 2001-B, or any
other address Fitch furnishes to the Depositor and the Master 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.
Group 1 Certificates: As specified in the Preliminary Statement.
Group 1 Principal Distribution Amount: For any Distribution Date is the
excess of (1) the Class A Principal Distribution Amount for the applicable
Distribution Date over (2) the Group 2 Principal Distribution Amount for the
applicable Distribution Date.
Group 1 WAC Cap: For the Mortgage Loans in Loan Group 1 as of any
Distribution Date, the weighted average of the Adjusted Net Mortgage Rates in
effect on the beginning of the related Remittance Period for the Mortgage
Loans.
Group 2 Certificates: As specified in the Preliminary Statement.
Group 2 Maximum Cap: For the Mortgage Loans in Loan Group 2 as of any
Distribution Date, the weighted average of the Maximum Rates on the Mortgage
Loans in Loan Group 2 less the weighted average Expense Fee Rate.
Group 2 Principal Distribution Amount: For any Distribution Date on or
after which the Class Certificate Balance of each of the Fixed Rate
Certificates has been reduced to zero is all of the remaining Class A
Principal Distribution Amount after the Class Certificate Balance of each of
the Fixed Rate Certificates has been reduced to zero. For any other
Distribution Date is the least of:
(A) The Class Certificate Balance of the Class AV Certificates;
(B) the Class A Principal Distribution Amount; and
(C) the greater of
(1) the product of
(x) the Class A Principal Distribution Amount for the
applicable Distribution Date and
(y) a fraction whose numerator is the aggregate
Stated Principal Balance of the Mortgage Loans in Loan
Group 2 as of the last day of the related Remittance
Period and whose denominator is the
I-12
aggregate Stated Principal Balance of all of the Mortgage
Loans as of the last day of the related Remittance Period,
and
(2) the excess of
(x) the Class Certificate Balance of the Class AV
Certificates immediately before that Distribution Date
over
(y) the aggregate Stated Principal Balance of the
Mortgage Loans in Loan Group 2 as of the last day of the
related Remittance Period.
Group 2 WAC Cap: For the Mortgage Loans in Loan Group 2 as of any
Distribution Date, the product of (i) the weighted average of the Adjusted Net
Mortgage Rates then in effect at the beginning of the related Remittance
Period on the Mortgage Loans in Loan Group 2, and (ii) a fraction whose
numerator is 30 and whose denominator is the actual number of days in the
Interest Accrual Period for the Group 2 Certificates related to the
Distribution Date.
Index: As to each Mortgage Loan in Loan Group 2, the index from time to
time in effect for the adjustment of the Mortgage Rate set forth as such on
the related Mortgage Note.
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 Mortgage Loan: Such of the mortgage loans transferred and
assigned to the Trustee pursuant to the provisions hereof, 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 as of
the Closing Date, notwithstanding foreclosure or other acquisition of title of
the related Mortgaged Property.
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 or released to the Mortgagor.
Insured Expenses: Expenses covered by an Insurance Policy or any other
insurance policy with respect to the Mortgage Loans.
Interest Accrual Period: For each Class Fixed Rate Certificates and the
corresponding Class of REMIC 1 Lower Tier Interest and any Distribution Date,
the calendar month before the month of the Distribution Date. For purposes of
computing accrual of interest on each Class Fixed Rate Certificates and the
corresponding Class of Class of REMIC 1 Lower Tier Interest, each month is
assumed to have 30 days and each year is assumed to have 360 days. For each
Class Adjustable Rate Certificates and the corresponding Class of REMIC ▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇-▇▇
and any Distribution Date, the period from the Distribution Date in the month
preceding the month in which the Distribution Date occurs to the Distribution
Date (or in the case of the first Distribution Date, the period from the
Closing Date to the first Distribution Date). For purposes of computing
interest accruals on each Class Adjustable Rate Certificates and the
corresponding Class of REMIC 1 Lower Tier Interest, each Interest Accrual
Period has the actual number of days in the month and each year is assumed to
have 360 days.
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: For any Interest Accrual Period for the LIBOR Certificates, the
rate determined by the Trustee on the related LIBOR Determination Date on the
basis of the offered rate for one-month U.S. dollar deposits that appears on
Telerate Page 3750 as of 11:00 A.M. (London time) on that date. If the rate
does not appear on Telerate Page 3750, the rate for that date will be
determined on the basis of the rates at which one-month U.S. dollar deposits
are offered by the Reference Banks at approximately 11:00 A.M. (London time)
on that date to prime banks in the London interbank market. In that case, the
Trustee will request the principal London office of each of the Reference
Banks to provide a quotation of its rate. If at least two quotations are so
provided, the rate for that date will be the arithmetic mean of the quotations
(rounded upwards if necessary to the nearest whole multiple of 1/16%). If
fewer than two quotations are provided as requested, the rate for that date
will be the arithmetic mean of the rates quoted by major banks in New York
City, selected by the Master Servicer, at approximately 11:00 A.M. (New York
City time) on that date for one-month U.S. dollar loan to leading European
banks.
LIBOR Certificates: As specified in the Preliminary Statement.
LIBOR Determination Date: For any Interest Accrual Period for the LIBOR
Certificates, the second London Business Day preceding the commencement of the
Interest Accrual Period.
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 Master
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.
I-14
Loan Group: Any of Loan Group 1 or Loan Group 2, as applicable.
Loan Group 1: All Mortgage Loans that have Mortgage Rates that are fixed.
Loan Group 2: All Mortgage Loans that have Mortgage Rates that are
adjustable.
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 Collateral Value of the related Mortgaged Property.
Lockout Percentage: The indicated percentage for the indicated
Distribution Dates:
Distribution Dates Percentage
------------------ ----------
July 2001 through June 2004.................................0%
July 2004 through June 2006 ...............................45%
July 2006 through June 2007 ...............................80%
July 2007 through June 2008 ..............................100%
July 2008 and thereafter .................................300%
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.
Lower Tier Adjustable Rate Regular Interest: The Class LT2-AV Interests
as described in the Preliminary Statement.
Lower Tier Fixed Rate Regular Interest: Each of the Class LT2-AF-1, Class
LT2-AF-2, Class LT2-AF-3, Class LT2-AF-4, Class LT2-AF-5, Class LT2-AF-6,
Class LT2-MF-1, Class LT2-MF-2, and Class LT2-BF Interests as described in the
Preliminary Statement.
Lower Tier Interests: As described in the Preliminary Statement.
Lower Tier REMIC: REMIC 1 as described in the Preliminary Statement.
Maintenance: For any Cooperative Unit, the rent paid by the Mortgagor to
the Cooperative Corporation pursuant to the Proprietary Lease.
Majority in Interest: As to any Class of Regular Certificates, the
Holders of Certificates of the Class evidencing, in the aggregate, at least
51% of the Percentage Interests evidenced by all Certificates of the Class.
Margin: As to each Mortgage Loan in Loan Group 2, the percentage amount
set forth on the related Mortgage Note added to the Index in calculating its
Mortgage Rate.
I-15
Master Servicer: IndyMac Bank, F.S.B., a federal savings bank, and its
successors and assigns, in its capacity as Master Servicer under this
Agreement.
Master Servicer Advance Date: As to any Distribution Date, 12:30 P.M.
Pacific time on the Business Day preceding the Distribution Date.
Master Servicing Fee: As to each Mortgage Loan and any Distribution Date,
one month's interest at the related Master Servicing Fee Rate on the Stated
Principal Balance of the Mortgage Loan or, in the event of any payment of
interest which accompanies a Principal Prepayment in Full made by the
Mortgagor, interest at the Master 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.
Master Servicing Fee Rate: For each Mortgage Loan, zero.
Maximum Rate: As to any Mortgage Loans in Loan Group 2, the maximum rate
in the related Mortgage Note at which interest can accrue on the Mortgage
Loan.
Modified Mortgage Loan: Any Mortgage Loan that the Master Servicer has
modified pursuant to Section 3.12(c).
Monthly Statement: The statement prepared by the Trustee pursuant to
Section 4.03.
Moody's: 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 Master Servicer.
Mortgage: The mortgage, deed of trust, or other instrument creating a
first or second lien on an estate in fee simple or leasehold interest in real
property securing a Mortgage Note.
Mortgage File: The mortgage documents listed in Section 2.01 pertaining
to a particular Mortgage Loan and any additional documents delivered to the
Trustee to be added to the Mortgage File pursuant to this Agreement.
Mortgage Loans: Such of the mortgage loans transferred and assigned to
the Trustee pursuant to either (i) this Agreement or (ii) a Subsequent
Transfer Agreement and 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 of Mortgage Loans in
Schedule I included in the Trust Fund on that date, separately identifying the
Initial Mortgage Loans and the Subsequent Mortgage Loans. The Mortgage Loan
Schedule shall be prepared by the Seller and shall set forth the following
information with respect to each Mortgage Loan:
(i) the loan number;
I-16
(ii) the Mortgagor's name and 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 related
Cut-off Date;
(viii) the Loan-to-Value Ratio or Combined Loan-to-Value
(as applicable) at origination;
(ix) a code indicating whether the residential dwelling
at the time of origination was represented to be
owner-occupied;
(x) 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;
(xi) the Mortgage Rate;
(xii) the purpose for the Mortgage Loan;
(xiii) the type of documentation program pursuant to which
the Mortgage Loan was originated;
(xiv) with respect to the Mortgage Loans in Loan Group 2:
(a) the Maximum Rate;
(b) the Periodic Rate Cap;
(c) the Adjustment Date; and
(d) the Margin;
(xv) a code indicating whether the Mortgage Loan is a
Performance Loan;
(xvi) a code indicating whether the Mortgage Loan is a
borrower-paid mortgage insurance loan;
(xvii) the Servicing Fee Rate;
(xviii) a code indicating whether the Mortgage Loan is a
Lender PMI Loan;
(xix) the coverage amount of any mortgage insurance;
(xx) with respect to the Lender PMI Loans, the Lender
PMI fee premium;
(xxi) a code indicating whether the Mortgage Loan is one
for which the Trust Fund is acquiring and paying
for primary mortgage guaranty insurance from PMI;
and
(xxii) a code indicating whether the Mortgage Loan is a
Delay Delivery Mortgage Loan.
I-17
The schedule shall also set forth the total of the amounts described under (v)
above for all of the Mortgage Loans.
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.
Mortgaged Property: The underlying property securing a Mortgage Loan,
which, with respect to a Cooperative Loan, is the related Coop Shares and
Proprietary Lease.
Mortgagor: The obligors on a Mortgage Note.
Net Prepayment Interest Shortfall: For any Distribution Date, the excess
of the sum of the Prepayment Interest Shortfalls over the sum of the
Compensating Interest payments made on the Distribution Date.
Net WAC Cap CarryForward Amount: For any Distribution Date, the sum of
(A) if on the Distribution Date the Pass-Through Rate for any Class of
Fixed Rate Certificates is based on the Group 1 WAC Cap, the excess of
(i) the amount of interest that Class of Fixed Rate Certificates
would otherwise be entitled to receive on the Distribution Date had its
Pass-Through Rate not been subject to the Group 1WAC Cap over
(ii) the amount of interest payable on that Class of Fixed Rate
Certificates at the Group 1 WAC Cap for the Distribution Date;
(B) the Net WAC Cap CarryForward Amount for that Class of Fixed Rate
Certificates for all previous Distribution Dates not previously paid, together
with interest thereon at the then applicable Pass-Through Rate on that Class
of Fixed Rate Certificates, without giving effect to the Group 1 WAC Cap;
(C) if on the Distribution Date the Pass-Through Rate for any Class of
Adjustable Rate Certificates is based on the Group 2 WAC Cap, the excess of
(i) the amount of interest that Class of Adjustable Rate
Certificates would otherwise be entitled to receive on the Distribution
Date had its Pass-Through Rate been calculated as the sum of LIBOR and
the applicable Pass-Through Margin on that Class of Adjustable Rate
Certificates for the Distribution Date, up to the Group 2 Maximum Cap
over
(ii) the amount of interest payable on that Class of Adjustable Rate
Certificates at the Group 2 WAC Cap for the Distribution Date; and
(D) the Net WAC Cap CarryForward Amount for that Class of Adjustable Rate
Certificates for all previous Distribution Dates not previously paid, together
with interest
I-18
thereon at a rate equal to the sum of LIBOR and the applicable Pass-Through
Margin for that Class of Adjustable Rate Certificates for the Distribution
Date, subject to the Group 2 Maximum Cap.
Net WAC Cap Payment: For any Distribution Date, the lesser of the amounts
otherwise distributable on the Class X Certificates on the Distribution Date
and the sum of any Net WAC Cap CarryForward Amount, plus the Required Reserve
Amount for the Distribution Date.
Nonrecoverable Advance: Any portion of an Advance previously made or
proposed to be made by the Master Servicer, that, in the good faith judgment
of the Master Servicer, will not be ultimately recoverable by the Master
Servicer from the related Mortgagor, related Liquidation Proceeds or otherwise
from collections related to the Mortgage Loan.
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 on its presentation and surrender.
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 Master 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.
Opinion of Counsel: For the interpretation or application of the REMIC
Provisions, counsel must (i) in fact be independent of the Depositor and the
Master Servicer, (ii) not have any direct financial interest in the Depositor
or the Master Servicer or in any affiliate of either, and (iii) not be
connected with the Depositor or the Master Servicer as an officer, employee,
promoter, underwriter, trustee, partner, director, or person performing
similar functions. Otherwise, Opinion of Counsel is a written opinion of
counsel, who may be counsel for the Depositor or the Master Servicer,
including in-house counsel, reasonably acceptable to the Trustee.
Optional Termination: The termination of the Trust Fund created hereunder
in connection with the purchase of the Mortgage Loans pursuant to Section
9.01(a).
Optional Termination Date: The Distribution Date on which the assets of
the Trust Fund decline to 10% or less of the Cut-off Date Principal Balances
of the Mortgage Loans.
Original Mortgage Loan: The Mortgage Loan refinanced in connection
with the origination of a Refinance Loan.
OTS: The Office of Thrift Supervision.
I-19
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 and that did not become a
Liquidated Mortgage Loan before the Due Date.
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 Margin: For the Class AV Certificates, 0.25%. Following the
Optional Termination Date, the Pass-Through Margin for the Class AV
Certificates shall be 2 times their initial margin.
Pass-Through Rate: For each Class of Certificates and each Lower Tier
Interest, 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 their 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 Loan: Mortgage Loans that provide borrowers the potential of
margin reduction for good payment history. If, at the time of evaluation, the
related borrower has made scheduled payments in full since the origination of
the loan with a maximum of one late payment (which, however, cannot be in the
month of evaluation) the Mortgage Loan is eligible for a reduction (ranging
from 0.50% to 1.00%) in the margin used to calculate the Mortgage Rate.
Periodic Rate Cap: As to any Mortgage Loan in Loan Group 2 and any
Adjustment Date, the maximum percentage increase or decrease to the related
Mortgage Rate on the Adjustment Date, as specified in the related Mortgage
Note.
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 or withdrawal of the ratings then
I-20
assigned to the Certificates by the Rating Agencies, as evidenced by a signed
writing delivered by each Rating Agency;
(iii) commercial or finance company paper that is then receiving the
highest commercial or finance company paper rating of each Rating Agency, or
any lower rating that will not result in the downgrading 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 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;
(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 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;
(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
I-21
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 or
withdrawal of the ratings then assigned to the Certificates by the Rating
Agencies, as evidenced by a signed writing delivered by each Rating Agency.
No Permitted Investment may evidence the right to receive interest only
payments with respect to the obligations underlying the instrument. Any
Permitted Investment shall be relatively risk free and no options or voting
rights shall be exercised with respect to any Permitted Investment.
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) rural electric and telephone cooperatives described in section
1381(a)(2)(C) of the Code,
(v) a Person that is not a U.S. Person, and
(vi) 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 either REMIC created under this Agreement
to fail to qualify as a REMIC at any time that the Certificates are
outstanding.
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 FHLMC, a majority
of its board of directors is not selected by such government unit.
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.
PMI: PMI Mortgage Insurance Co., an Arizona corporation.
I-22
Pool Stated Principal Balance: As to any Distribution Date, the aggregate
of the Stated Principal Balances of the Mortgage Loans on the last day of the
related Remittance Period that were Outstanding Mortgage Loans on that day.
Pre-Funding Amount: For any date, the amount on deposit in the
Pre-Funding Account as of that date (net of any reinvestment earnings
thereon).
Pre-Funding Account: The separate Eligible Account created and maintained
by the Trustee pursuant to Section 3.06 in the name of the Trustee for the
benefit of the Certificateholders and designated "Bankers Trust Company of
California, N.A., in trust for registered holders of IndyMac Home Equity
Mortgage Loan Asset-Backed Certificates, Series SPMD 2001-B" for the purchase
of Subsequent Mortgage Loans. Funds in the Pre-Funding Account shall be held
in trust for the Certificateholders for the uses and purposes set forth in
this Agreement and shall not be a part of any REMIC created under this
Agreement.
Pre-Funding Period: The period commencing on the Closing Date and ending
on the earlier to occur of (i) the date on which the amount on deposit in the
Pre-Funding Account (exclusive of any investment earnings) is less than
$100,000 and (ii) August 31, 2001.
Prepayment Charge: As to a Mortgage Loan, any charge paid by a Mortgagor
in connection with certain partial prepayments and all prepayments in full
made within the related Prepayment Charge Period, the Prepayment Charges with
respect to each applicable Mortgage Loan so held by the Trust being identified
in the Prepayment Charge Schedule.
Prepayment Charge Period: As to any Mortgage Loan the period of time
during which a Prepayment Charge may be imposed.
Prepayment Charge Schedule: As of any date, the list of Prepayment
Charges included in the Trust Fund on that date, (including the prepayment
charge summary attached thereto). The Prepayment Charge Schedule shall set
forth the following information with respect to each Prepayment Charge:
(i) the Mortgage Loan account number;
(ii) a code indicating the type of Prepayment Charge;
(iii) the state of origination in which the related Mortgage
Property is located;
(iv) the first date on which a Monthly Payment is or was due under
the related Mortgage Note;
(v) the term of the Prepayment Charge;
(vi) the original principal amount of the related Mortgage Loan; and
(vii) the Cut-off Date Principal Balance of the related Mortgage
Loan.
The Prepayment Charge Schedule shall be amended from time to time by
the Master Servicer in accordance with this Agreement.
I-23
Prepayment Interest Shortfall: As to any Distribution Date, Mortgage
Loan, and Principal Prepayment, the excess of one month's interest at the
related Mortgage Rate (net of the related rate at which lender-paid primary
mortgage insurance premiums are calculated if relevant for the Mortgage Loan
and period involved) on the Principal Prepayment over the amount of interest
paid in connection with the Principal Prepayment.
Prepayment Period: As to any Distribution Date, the applicable Remittance
Period.
Primary Insurance Policy: Each policy of primary mortgage guaranty
insurance or any replacement policy therefor with respect to any Mortgage
Loan.
Principal Distribution Amount: For any Distribution Date, the sum of (i)
the Basic Principal Distribution Amount for the Distribution Date and (ii) the
Extra Principal Distribution Amount for the Distribution Date.
Principal Prepayment: Any payment of principal by a Mortgagor on a
Mortgage Loan (including the Purchase Price of any Modified Mortgage Loan
purchased pursuant to Section 3.12(c)) 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
Master Servicer shall apply partial Principal Prepayments in accordance with
the related Mortgage Note.
Principal Prepayment in Full: Any Principal Prepayment made by a
Mortgagor of the entire principal balance of a Mortgage Loan.
Principal Remittance Amount: For any Distribution Date, the sum of the
following amounts (without duplication) with respect to the preceding
Remittance Period:
(i) the principal portion of previously undistributed Scheduled Payments
due after the Cut-off Date and by the Due Date occurring in the Remittance
Period that were not the subject of a previous Advance and were received by
the Master Servicer before the related Determination Date or were part of the
Advance for the Determination Date,
(ii) each Principal Prepayment received by the Master Servicer during the
preceding calendar month,
(iii) the Liquidation Proceeds on the Mortgage Loans allocable to
principal actually collected by the Master Servicer during the preceding
calendar month,
(iv) the portion of the purchase price with respect to each Deleted
Mortgage Loan, the repurchase obligation for which arose during the preceding
calendar month and that was repurchased before the related Distribution
Account Deposit Date,
(v) the principal portion of any Substitution Adjustment Amounts in
connection with a substitution of a Mortgage Loan as of the Distribution Date,
(vi) with respect to the Distribution Date occurring in the month
following the end of the Pre-Funding Period, the related Unused Pre-Funding
Amount, and
I-24
(vii) the allocable portion of the proceeds received with respect to the
termination of the Trust Fund (to the extent such proceeds relate to
principal).
Private Certificates: As specified in the Preliminary Statement.
Proprietary Lease: For any Cooperative Unit, a lease or occupancy
agreement between a Cooperative Corporation and a holder of related Coop
Shares.
Prospectus Supplement: The Prospectus Supplement dated June 21, 2001
relating to the Offered Certificates.
PUD: Planned Unit Development.
Purchase Price: For any Modified Mortgage Loan or any Mortgage Loan
required to be purchased by the Seller pursuant to Section 2.02 or 2.03 or
purchased at the option of the Master 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, and
(ii) accrued interest on the Mortgage Loan at the applicable Mortgage
Rate (or at the applicable Adjusted Net Mortgage Rate if (x) the purchaser is
the Master Servicer or (y) if the purchaser is the Seller and the Seller is
the Master 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.
If the Mortgage Loan is a Modified Mortgage Loan, the interest component of
the Purchase Price shall be computed (i) on the basis of the applicable
Adjusted Net 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 Modified Mortgage Loan is assigned to the Master Servicer pursuant to
Section 3.12(c).
Qualified Insurer: A mortgage guaranty insurance company duly qualified
as such under the laws of the state of its principal place of business and
each state having jurisdiction over the insurer in connection with the
insurance policy issued by the insurer, duly authorized and licensed in such
states to transact a mortgage guaranty insurance business in such states and
to write the insurance provided by the insurance policy issued by it, approved
as a FNMA- or FHLMC-approved mortgage insurer or having a claims paying
ability rating of at least "AA" or equivalent rating by a nationally
recognized statistical rating organization. Any replacement insurer with
respect to a Mortgage Loan must have at least as high a claims paying ability
rating as the insurer it replaces had on the Closing Date.
Rating Agency: Each of the Rating Agencies specified in the Preliminary
Statement. If any of them or a successor is no longer in existence, "Rating
Agency" shall be the nationally recognized statistical rating organization, or
other comparable Person, designated by the Depositor, notice of which
designation shall be given to the Trustee. References to a given
I-25
rating or rating category of a Rating Agency means the rating category without
giving effect to any modifiers.
Recognition Agreement: For any Cooperative Loan, an agreement between the
Cooperative Corporation and the originator of the Mortgage Loan which
establishes the rights of the originator in the Cooperative Property.
Record Date: For any Definitive Certificate or any Fixed Rate
Certificate, the close of business on the last Business Day of the month
preceding the month of the related Distribution Date. For the Adjustable Rate
Certificates held in book-entry form, the close of business on the Business
Day before the related Distribution Date.
Reference Bank: As defined in Section 4.07.
Refinance Loan: Any Mortgage Loan the proceeds of which are used to
refinance an existing mortgage loan.
Regular Certificates: As specified in the Preliminary Statement.
Relevant Mortgage Loan: As defined in Section 3.12(c).
REMIC: A "real estate mortgage investment conduit" within the meaning of
section 860D of the Code.
REMIC Change of Law: Any proposed, temporary, or final regulation,
revenue ruling, revenue procedure, or other official announcement or
interpretation relating to REMICs and the REMIC Provisions issued after the
Closing Date.
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.
Remittance 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.
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.
Request for Release: The Request for Release submitted by the Master
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.
Required Reserve Amount: (a) $10,000 on any Distribution Date that the
Group 2 WAC Cap exceeds the weighted average rate on the Adjustable Rate
Certificates by more than 0.25%, and (b) the greater of (i) $10,000 or (ii)
the product of 0.50% and the Class Certificate
I-26
Balance of the Adjustable Rate Certificates as of the Distribution Date, on
any Distribution Date that the Group 2 WAC Cap exceeds the weighted average
rate on the Adjustable Rate Certificates by less than 0.25%.
Residual Certificates: As specified in the Preliminary Statement.
Responsible Officer: When used with respect to the Trustee, any Vice
President, any Assistant Vice President, any Assistant Secretary, any
Assistant Treasurer, 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.
SAIF: The Savings Association Insurance Fund, or any successor thereto.
S&P: Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies. 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
Ratings Group, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Mortgage Surveillance Monitoring, or any
other address that S&P furnishes to the Depositor and the Master Servicer.
Scheduled Payment: The scheduled monthly payment on a Mortgage Loan due
on any Due Date allocable to principal or interest on the Mortgage Loan that,
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 the Mortgage Loan.
Securities Act: The Securities Act of 1933.
Security Agreement: For any Cooperative Loan, the agreement between the
owner of the related Coop Shares and the originator of the related Mortgage
Note that defines the security interest in the Coop Shares and the related
Proprietary Lease.
Seller: IndyMac Bank, F.S.B., a federal savings bank, and its successors
and assigns, in its capacity as seller of the Mortgage Loans to the Depositor.
Senior Enhancement Percentage: For any Distribution Date, the percentage
obtained by dividing
(x) the sum of (i) the aggregate Class Certificate Balance of the
Subordinated Certificates and (ii) the Subordinated Amount (in each
case after taking into account the distributions of the Principal
Distribution Amount for the Distribution Date) by
(y) the aggregate Stated Principal Balance of all of the Mortgage
Loans as of the last day of the related Remittance Period.
Senior Specified Enhancement Percentage: As of any date of determination,
24.00%.
I-27
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 Master Servicer
of its servicing obligations, including the cost of
(i) --
(a) the preservation, restoration, and protection of a Mortgaged
Property,
(b) expenses reimbursable to the Master Servicer pursuant to Section
3.12 and any enforcement or judicial proceedings, including foreclosures,
(c) the management and liquidation of any REO Property, and
(d) compliance with the obligations under Section 3.10; and
(ii) reasonable compensation to the Master 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 clause (ii), 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 Fee: As to each Mortgage Loan and any Distribution Date, one
month's interest at the applicable Servicing Fee Rate on the Stated Principal
Balance of the Mortgage Loan as of the Due Date occurring in the preceding
calendar month, 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 any Mortgage Loan, the per annum rate in the
Mortgage Loan Schedule for the Mortgage Loan.
Servicing Officer: Any officer of the Master 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 Master 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 Master
Servicer with respect to mortgage loans comparable to the Mortgage Loans
serviced by the Master Servicer for itself or others.
60+ Day Delinquent Loan: As of the last day of any month (and through the
day before last day of the following month), each Mortgage Loan in
foreclosure, all REO Property, each Mortgage Loan for which the Mortgagor has
filed for bankruptcy, and each Mortgage Loan
I-28
with respect to which any portion of a Scheduled Payment is 60 days or more
past due (without giving effect to any grace period), in each case as of the
last day of the month.
Specified Subordinated Amount:
(i) for any Distribution Date before the Stepdown Date, 0.50% of the sum
of the Cut-off Date Principal Balance of the initial Mortgage Loans plus the
amount in the Pre-Funding Account; and
(ii) for any Distribution Date from the Stepdown Date and as long as no
Trigger Event exists, 1.00% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Remittance Period, subject to
a minimum amount equal to 0.50% of the aggregate Stated Principal Balance of
the initial Mortgage Loans as of the related Cut-off Date plus the amount in
the Pre-Funding Account.
If, on any Distribution Date, a Trigger Event has occurred, the Specified
Subordinated Amount shall not be reduced to the applicable percentage of the
then current aggregate Stated Principal Balance of the Mortgage Loans until
the Distribution Date on which a Trigger Event is no longer occurring.
Startup Day: The Closing Date.
Stated Principal Balance: As to any Mortgage Loan and Due Date, the
unpaid principal balance of the Mortgage Loan as of the Due Date as specified
in the amortization schedule at the time relating thereto (before any
adjustment to the amortization schedule for any moratorium or similar waiver
or grace period) after giving effect to any previous partial Principal
Prepayments and Liquidation Proceeds allocable to principal (other than with
respect to any Liquidated Mortgage Loan) and to the payment of principal due
on the Due Date and irrespective of any delinquency in payment by the related
Mortgagor.
Stepdown Date: The later to occur of (i) the Distribution Date in July
2004 and (ii) the first Distribution Date on which the Senior Enhancement
Percentage (calculated for this purpose only after taking into account
distributions of principal on the Mortgage Loans on the last day of the
related Remittance Period but before any application of Principal Distribution
Amount to the Certificates) is greater than or equal to the Senior Specified
Enhancement Percentage.
Subordinated Amount: For any Distribution Date, the excess of
(a) the aggregate Stated Principal Balance of the Mortgage Loans as of
the end of the related Remittance Period plus the amount in the Pre-Funding
Account excluding investment earnings over
(b) the aggregate of the Class Certificate Balances of the Offered
Certificates as of the Distribution Date (after giving effect to the payment
of principal on the Certificates on the Distribution Date).
Subordinated Certificates: As specified in the Preliminary Statement.
I-29
Subordination Deficiency: For any Distribution Date, the excess of (a)
the Specified Subordinated Amount applicable to the Distribution Date over (b)
the Subordinated Amount applicable to the Distribution Date.
Subordination Reduction Amount: For any Distribution Date, the lesser of
(a) the Excess Subordinated Amount and (b) the Total Monthly Excess Spread.
Subsequent Mortgage Loan: Such of the mortgage loans transferred and
assigned to the Trustee pursuant to (i) a Subsequent Transfer Agreement and
(ii) the provisions hereof, 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 for the related Subsequent Transfer
Date, notwithstanding foreclosure or other acquisition of title of the related
Mortgaged Property. When used with respect to a single Subsequent Transfer
Date, "Subsequent Mortgage Loan" means a Subsequent Mortgage Loan conveyed to
the Trust Fund on the Subsequent Transfer Date.
Subsequent Transfer Agreement: A Subsequent Transfer Agreement
substantially in the form of Exhibit Q, executed and delivered by the Seller,
the Depositor, and the Trustee as provided in Section 2.09(a).
Subsequent Transfer Date: For any Subsequent Transfer Agreement, the
"Subsequent Transfer Date" identified in the Subsequent Transfer Agreement.
The Subsequent Transfer Date for any Subsequent Transfer Agreement may not be
a date earlier than the date on which the Subsequent Transfer Agreement is
executed and delivered by the parties thereto pursuant to Section 2.09(a).
Subservicer: As defined in Section 3.02(a).
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;
(ii) be accruing interest at a rate no lower than and not more than 1%
per annum higher than, that of the Deleted Mortgage Loan;
(iii) have a Loan-to-Value Ratio or Combined Loan-to-Value Ratio (as
applicable) no higher than that of the Deleted Mortgage Loan;
(iv) have a remaining term to maturity no greater than (and not more than
one year less than that of) the Deleted Mortgage Loan;
(v) not be a Cooperative Loan unless the Deleted Mortgage Loan was a
Cooperative Loan; and
I-30
(vi) comply with each representation and warranty in Section 2.03.
Substitution Adjustment Amount: As defined in Section 2.03.
Telerate Page 3750: The display page currently so designated on the
Bridge 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).
Total Monthly Excess Spread: For any Distribution Date, the excess of (i)
the interest collected or advanced on the Mortgage Loans during the related
Remittance Period plus the Capitalized Interest Requirement for the
Distribution Date over (ii) the sum of the amounts paid to the Certificates or
to the Excess Reserve Fund Account on the Distribution Date pursuant to
Section 4.02(I)(i) and 4.02(I)(iii)(a).
For any Distribution Date the amount remaining for distribution pursuant
to Section 4.02(I)(iii) (before giving effect to distributions pursuant to
that Section).
Transfer: Any direct or indirect transfer or sale of any Ownership
Interest in a Residual Certificate.
Trigger Event: With respect to any Distribution Date after a Stepdown
Date exists if the quotient of (x) the three month rolling average of the
Stated Principal Balance of 60+ Day Delinquent Loans as of the last day of the
preceding calendar month over (y) the Stated Principal Balance of the Mortgage
Loans, as of the last day of the preceding calendar month, equals or exceeds
50% of the related Senior Enhancement Percentage.
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 related Cut-off Date, other than amounts due on the Mortgage Loans
by the related Cut-off Date;
(ii) the Certificate Account, Excess Reserve Fund Account, the
Distribution Account, the Pre-Funding Account, and the Capitalized Interest
Account, as of the last day of the related Remittance Period, 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: Bankers Trust Company of California, N.A. and its successors
and, if a successor trustee is appointed under this Agreement, the successor.
I-31
Trustee Fee: As to each Mortgage Loan and any Distribution Date, one
month's interest at the related Trustee Fee Rate on the Stated Principal
Balance of the Mortgage Loan as of the Due Date occurring in the preceding
calendar month or, whenever a payment of interest accompanies a Principal
Prepayment in Full made by the Mortgagor during the preceding calendar month,
interest at the Trustee Fee Rate on the Stated Principal Balance of the
Mortgage Loan for the period covered by the payment of interest.
Trustee Fee Rate: For each Mortgage Loan, the per annum rate agreed upon
in writing by the Closing Date by the Trustee and the Depositor.
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.
Unpaid Interest Amounts: As of any Distribution Date and any Class of
Certificates, the sum of
(a) the excess of
(i) the sum of the Accrued Certificate Interest Distribution Amount
for the Distribution Date and any portion of the Accrued Certificate
Interest Distribution Amount from prior Distribution Dates remaining
unpaid over
(ii) the amount in respect of interest on the Class of Certificates
actually distributed on the preceding Distribution Date and
(b) interest on that excess for the related Interest Accrual Period at the
applicable Pass-Through Rate (to the extent permitted by applicable law).
Unpaid Realized Loss Amount: For any Class of Subordinated Certificates
and any Distribution Date, is the excess of (i) Applied Realized Loss Amounts
for the Class over (ii) the sum of all distributions in reduction of Applied
Realized Loss Amounts for the Class on all previous Distribution Dates. Any
amounts distributed to a Class of Subordinated Certificates
I-32
with respect to any Unpaid Realized Loss Amount will not be applied to reduce
the Class Certificate Balance of the Class.
Unused Pre-Funding Amount: The Pre-Funding Amount immediately after the
end of the Pre-Funding Period.
Upper Tier Regular Interest: As described in the Preliminary Statement.
Upper Tier REMIC:. As described in the Preliminary Statement.
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 any Class X
Certificates (the Voting Rights to be allocated among the holders of
Certificates of each Class in accordance with their respective Percentage
Interests) and (b) the remaining Voting Rights shall be allocated among
Holders of the remaining Classes of Certificates in proportion to the
Certificate Balances or notional amounts, as applicable, of their respective
Certificates on the date.
Section 1.02. Rules of Construction.
Except as otherwise expressly provided in this Agreement or unless the
context clearly requires otherwise:
(a) References to designated articles, sections, subsections, exhibits,
and other subdivisions of this Agreement, such as "Section 6.12 (a)," refer to
the designated article, section, subsection, exhibit, or other subdivision of
this Agreement as a whole and to all subdivisions of the designated article,
section, subsection, exhibit, or other subdivision. The words "herein,"
"hereof," "hereto," "hereunder," and other words of similar import refer to
this Agreement as a whole and not to any particular article, section, exhibit,
or other subdivision of this Agreement.
(b) Any term that relates to a document or a statute, rule, or regulation
includes any amendments, modifications, supplements, or any other changes that
may have occurred since the document, statute, rule, or regulation came into
being, including changes that occur after the date of this Agreement.
(c) Any party may execute any of the requirements under this Agreement
either directly or through others, and the right to cause something to be done
rather than doing it directly shall be implicit in every requirement under
this Agreement. Unless a provision is restricted as to time or limited as to
frequency, all provisions under this Agreement are implicitly available and
things may happen from time to time.
(d) The term "including" and all its variations mean "including but not
limited to." Except when used in conjunction with the word "either," the word
"or" is always used inclusively (for example, the phrase "A or B" means "A or
B or both," not "either A or B but not both").
I-33
(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 "on or before." The words "preceding," "following," and words of similar
import, mean immediately preceding or following. References to a month or a
year refer to calendar months and calendar years.
(h) Any reference to the enforceability of any agreement against a party
means that it is enforceable, subject as to enforcement against the party, to
applicable bankruptcy, insolvency, reorganization, and other similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles.
I-34
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 Initial Mortgage Loan, including all interest
and principal due to the Seller on each Initial Mortgage Loan after the
related Cut-off Date and all interest and principal payments on each Initial
Mortgage Loan received by the related Cut-off Date for installments of
interest and principal due after the related Cut-Off Date but not including
payments of principal and interest due on each Initial Mortgage Loan by the
related 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 Initial Mortgage Loan listed in
the Mortgage Loan Schedule 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 Initial
Mortgage Loans.
(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 Initial Mortgage Loan
in accordance with this Agreement.
(c) In connection with the transfer and assignment of each Initial
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), and, in
connection with the transfer and assignment of each Subsequent Mortgage Loan,
will deliver to the Trustee 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-1
(ii) Except as provided below, the original recorded Mortgage or a
copy of the Mortgage certified by the Seller (or, in the case of a
Mortgage for which the related Mortgaged Property is located in the
Commonwealth of Puerto Rico, a copy of the Mortgage certified by the
applicable notary) as being a true and complete copy of the Mortgage.
(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 Coop 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 Coop
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)
II-2
satisfying the requirements of clause (ii), (iii), or (v) above, respectively,
concurrently with the execution and delivery of this Agreement because any of
them 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 Master 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 it when it is
received from the public recording office, or a copy of it, certified, if
appropriate, by the relevant recording office.
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, for a
Subsequent Mortgage Loan, the Subsequent Transfer Date), or, in the case of
clause (v) above, later than 120 days following the Closing Date (or, for a
Subsequent Mortgage Loan, the Subsequent Transfer 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 (or, for a Subsequent Mortgage Loan, the Subsequent Transfer 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 Master 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 Master 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
II-3
shall deliver it for 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.
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 (in the case of Initial Mortgage Loans)
or within thirty days of the Subsequent Transfer Date (in the case of
Subsequent Mortgage Loans), the Seller shall either
(i) deliver to the Trustee the Mortgage File as required pursuant to this
Section 2.01 for each Delay Delivery Mortgage Loan or
(ii) (A) repurchase the Delay Delivery Mortgage Loan or (B) substitute
the Delay Delivery Mortgage Loan for a Substitute Mortgage Loan, which
repurchase or substitution shall be accomplished in the manner and subject to
the conditions in Section 2.03.
If the Seller fails to deliver a Mortgage File for any Delay Delivery
Mortgage Loan within thirty days of the Subsequent Transfer Date, 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 the Delay Delivery Mortgage Loan,
but rather the Seller shall have five Business Days to cure the failure to
deliver, and shall promptly provide each Rating Agency with written notice of
any cure, repurchase, or substitution. By the fifth Business Day after the
Closing Date (in the case of Initial Mortgage Loans) or the thirtieth day (or
if that day is not a Business Day, the next Business Day) after the Subsequent
Transfer Date (in the case of Subsequent Mortgage Loans), the Trustee shall,
in accordance with Section 2.02, send a Delay Delivery Certification
substantially in the form of Exhibit G-1 (with any applicable exceptions noted
thereon) for all Delay Delivery Mortgage Loan delivered within the specified
numbers of days after the pertinent date. The Trustee will promptly send a
copy of such Delay Delivery Certification to each Rating Agency.
(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.
II-4
Section 2.02. Acceptance by the Trustee of the Mortgage Loans.
(a) The Trustee acknowledges receipt of the documents identified in the
Initial Certification in the form of Exhibit G, and receipt of the amount of
$28,224,763 for deposit in the Pre-Funding Account and declares that it holds
and will hold such documents and the other documents delivered to it
constituting the Mortgage Files for the Initial Mortgage Loans, that it holds
and will hold all amounts in the Pre-Funding Account and the Capitalized
Interest Account, 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 Master Servicer and the Seller an Initial Certification in the
form of Exhibit G. 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 Initial
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 Master Servicer, and the Seller a Delay Delivery Certification
with respect to the Initial Mortgage Loans substantially in the form of
Exhibit G-1, with any applicable exceptions noted thereon.
Not later than 90 days after the Closing Date, the Trustee shall deliver
to the Depositor, the Master Servicer and the Seller a Final Certification 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 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 Initial Mortgage Loan a Substitute Mortgage Loan,
which substitution shall be accomplished in the pursuant Section 2.03, or (b)
purchase the Initial Mortgage Loan at its Purchase Price from the Trustee
within 90 days from the date the Seller was notified of the defect in writing.
II-5
If a substitution or purchase of an Initial 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
Master 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 Initial 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 Initial Mortgage Loan. The notice
shall be delivered every 90 days thereafter until the related Initial 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 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 Initial Mortgage Loan shall be deposited by
the Seller in the Certificate Account by the Distribution Account Deposit Date
for the Distribution Date in the month following the month of repurchase and,
upon receipt of the deposit and certification with respect thereto in the form
of Exhibit N, the Trustee shall release the related Mortgage File to the
Seller and shall execute and deliver at the Seller's request any instruments
of transfer or assignment prepared by the Seller, in each case without
recourse, necessary to vest in the Seller, or a designee, the Trustee's
interest in any Initial Mortgage Loan released pursuant hereto.
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
Master Servicer shall promptly deliver to the Trustee, upon the execution or
receipt thereof, the originals of such other documents or instruments
constituting the Mortgage File as come into the possession of the Master
Servicer from time to time.
The obligation of the Seller to substitute for or to purchase any Initial
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.
(b) The Trustee agrees to execute and deliver to the Depositor, the
Master Servicer and the Seller on the Subsequent Transfer Date an Initial
Certification in the form of Exhibit G acknowledging receipt of the documents
identified in such Initial Certification and declaring that it holds and will
hold such documents and the other documents delivered to it constituting the
Mortgage Files for the related Subsequent Mortgage Loans, and that it
II-6
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.
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 Subsequent Mortgage
Loan. 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.
Not later than 90 days after the Subsequent Transfer Date, the Trustee
shall deliver to the Depositor, the Master Servicer, and the Seller a Final
Certification 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 Subsequent 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 the defect 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 Subsequent Mortgage Loan a Substitute Mortgage
Loan, which substitution shall be accomplished pursuant to Section 2.03, or
(b) purchase the Subsequent Mortgage Loan from the Trustee within 90 days from
the date the Seller was notified of the defect in writing at the Purchase
Price of the Subsequent Mortgage Loan.
If the substitution or purchase of a Subsequent 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
Master 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 Subsequent Transfer Date. In no other case shall the
substitution or purchase occur more than 540 days from the Subsequent Transfer
Date. The Trustee shall deliver written notice to each Rating Agency within
270 days from the Subsequent Transfer Date indicating each Subsequent 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.
II-7
The notice shall be delivered every 90 days thereafter until the related
Subsequent 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 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 Subsequent Mortgage Loan shall be deposited by the Seller in the
Certificate Account by the Distribution Account Deposit Date for the
Distribution Date in the month following the month of repurchase and, upon
receipt of the deposit and certification with respect thereto in the form of
Exhibit N, the Trustee shall release the related Mortgage File to the Seller
and shall execute and deliver at the Seller's request any instruments of
transfer or assignment prepared by the Seller, in each case without recourse,
necessary to vest in the Seller, or a designee, the Trustee's interest in any
Subsequent Mortgage Loan released pursuant hereto.
The Trustee shall retain possession and custody of each related Mortgage
File in accordance with and subject to the terms and conditions set forth
herein. The Master Servicer shall promptly deliver to the Trustee, upon the
execution or receipt thereof, the originals of any other documents or
instruments constituting the Subsequent Mortgage File that come into the
possession of the Master Servicer from time to time.
The obligation of the Seller to substitute for or to purchase any
Subsequent 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 Master Servicer.
(a) IndyMac, in its capacities as Seller and Master Servicer, hereby
makes the representations and warranties in Schedule II, and by this reference
incorporated herein, to the Depositor and the Trustee, as of the Closing Date.
(b) The Seller, in its capacity as Seller, hereby makes the
representations and warranties in Schedule III, and by this reference
incorporated herein, to the Depositor and the Trustee, as of the Closing Date,
or if so specified therein, as of the related 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 hereby 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
II-8
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 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. Anything to the contrary herein
notwithstanding, Seller shall have no obligation to cure any breach or to
repurchase or substitute for the affected Mortgage Loan if the substance of
the breach constitutes fraud in the origination of the affected Mortgage Loan
and the Seller, at the time of origination and on the Closing Date, did not
have actual knowledge of the fraud. The Seller shall promptly reimburse the
Master Servicer and the Trustee for any expenses reasonably incurred by the
Master 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 any other
documents and agreements 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 the month. Scheduled Payments due with respect to
Substitute Mortgage Loans in the Remittance Period of substitution shall not
be part of the Trust Fund and will be retained by the Seller on the next
Distribution Date. For the Remittance Period of substitution, distributions to
Certificateholders will include the monthly payment due on any Deleted
Mortgage Loan for the Remittance Period and thereafter the Seller shall be
entitled to retain all amounts received with respect to the Deleted Mortgage
Loan.
The Master 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
Master Servicer shall deliver the amended Mortgage Loan Schedule to the
Trustee. Upon the substitution, the Substitute Mortgage Loans shall be subject
to this Agreement in all respects, and the Seller shall be deemed to have made
with respect to the Substitute Mortgage Loans, as of the date of substitution,
the representations and warranties made pursuant to Section 2.03(b) with
respect to the Mortgage Loan. Upon any substitution and the deposit to the
Certificate Account of the amount required to be deposited therein in
connection with the substitution as described in the following paragraph, the
Trustee shall release the Mortgage File held for the benefit of the
Certificateholders relating to the Deleted Mortgage Loan to the Seller and
shall execute and deliver at the Seller's direction such instruments of
transfer or assignment prepared by the Seller, in each case without recourse,
as shall be necessary to vest title in the Seller, or its
II-9
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 Master Servicer
will determine the amount 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 the Deleted Mortgage Loans (after
application of the scheduled principal portion of the monthly payments due in
the Remittance Period of substitution). The amount of the shortage (the
"Substitution Adjustment Amount") plus, if the Seller is not the Master
Servicer, the aggregate of any unreimbursed Advances and Servicing Advances
with respect to the 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, the delivery of the Opinion of Counsel required by Section 2.05 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 hereby represents and warrants to the Trustee with respect
to each Mortgage Loan as of the date hereof or such other date set forth
herein that as of the Closing Date (or, for a Subsequent Mortgage Loan, the
Subsequent Transfer 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.
II-10
The Depositor hereby transfers to the Trustee all of its rights with
respect to the Mortgage Loans including the representations and warranties of
the Seller made pursuant to Section 2.03(b), together with all rights of the
Depositor to require the Seller to cure any breach thereof or to repurchase or
substitute for any affected Mortgage Loan in accordance with this Agreement.
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 and Repurchases.
(a) Notwithstanding any contrary provision of this Agreement, no
substitution pursuant to Section 2.02 or 2.03 shall be made more than 90 days
after the Closing Date unless the Seller delivers to the Trustee an Opinion of
Counsel, which Opinion of Counsel shall not be at the expense of either the
Trustee or the Trust Fund, addressed to the Trustee, to the effect that such
substitution will not (i) result in the imposition of the tax on "prohibited
transactions" on the Trust Fund or contributions after the Startup Date, as
defined in Sections 860F(a)(2) and 860G(d) of the Code, respectively or (ii)
cause the Trust Fund to fail to qualify as a REMIC at any time that any
Certificates are outstanding.
(b) Upon discovery by the Depositor, the Seller, the Master 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
II-11
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 hereby. The "Startup Day" for purposes of the REMIC Provisions shall
be the Closing Date.
Section 2.08. Covenants of the Master Servicer.
The Master Servicer hereby covenants to the Depositor and the Trustee as
follows:
(a) the Master Servicer shall comply in the performance of its
obligations under this Agreement with all reasonable rules and requirements of
the insurer under each Required Insurance Policy; and
(b) no written information, certificate of an officer, statement
furnished in writing or written report delivered to the Depositor, any
affiliate of the Depositor or the Trustee and prepared by the Master Servicer
pursuant to this Agreement will contain any untrue statement of a material
fact or omit to state a material fact necessary to make such information,
certificate, statement, or report not misleading.
Section 2.09. Subsequent Transfers.
(a) Upon five Business Days prior written notice to the Trustee, the
Depositor, the Seller, and the Trustee shall complete, execute, and deliver a
Subsequent Transfer Agreement. Subject to the satisfaction of the conditions
in Article II and paragraph (b) below and pursuant to the related Subsequent
Transfer Agreement, in consideration of the Trustee's delivery on each
Subsequent Transfer Date to the order of the Seller of all or a portion of the
balance of funds in the Pre-Funding Account (net of investment earnings), the
Seller shall on each Subsequent Transfer Date transfer to the Depositor,
without recourse, all the interest of the Seller in each Subsequent Mortgage
Loan listed on the Mortgage Loan Schedule delivered by the Seller on the
Subsequent Transfer Date, including all interest and principal received or
receivable by the Seller on or with respect to each Subsequent Mortgage Loan
after the related Cut-off Date and all interest and principal payments on each
Subsequent Mortgage Loan received by the related Cut-off Date in respect of
installments of interest and principal due thereafter, but not including
payments of principal and interest due and payable on each Subsequent Mortgage
Loan by the related Cut-off Date, and the Depositor shall simultaneously
transfer to the Trustee for the benefit of the Certificateholders, without
recourse, all the interest of the Depositor in each Subsequent Mortgage Loan
listed on the Mortgage Loan Schedule delivered by the Seller on the Subsequent
Transfer Date, including all interest and principal received or receivable by
the Depositor on or with respect to each Subsequent Mortgage Loan after the
related Cut-off Date and all interest and principal payments on each
Subsequent Mortgage Loan received before the related Cut-off Date in
II-12
respect of installments of interest and principal due thereafter, but not
including payments of principal and interest due and payable on each
Subsequent Mortgage Loan by the related Cut-off Date.
(b) If the assignment and transfer of the Subsequent Mortgage Loans and
the other property specified in this Section 2.09 from the Seller to the
Depositor pursuant to this Agreement is held or deemed not to be a sale or is
held or deemed to be a pledge of security for a loan, the Seller intends that
the rights and obligations of the parties shall be established pursuant to
this Agreement and that, in such event, (i) the Seller shall be deemed to have
granted and does hereby grant to the Depositor as of each Subsequent Transfer
Date a perfected, first priority security interest in the entire interest of
the Seller in the related Subsequent Mortgage Loans and all other property
conveyed to the Depositor pursuant to this Section 2.09 and all proceeds
thereof, and (ii) this Agreement shall constitute a security agreement under
applicable law.
If the assignment and transfer of the Subsequent Mortgage Loans and the
other property specified in this Section 2.09 from the Depositor to the
Trustee pursuant to this Agreement is held or deemed not to be a sale or is
held or deemed to be a pledge of security for a loan, the Depositor intends
that the rights and obligations of the parties shall be established pursuant
to this Agreement and that, in such event, (i) the Depositor shall be deemed
to have granted and does hereby grant to the Trustee as of each Subsequent
Transfer Date a perfected, first priority security interest in the entire
interest of the Depositor in the related Subsequent Mortgage Loans and all
other property conveyed to the Trust Fund pursuant to this Section 2.09 and
all proceeds thereof, and (ii) this Agreement shall constitute a security
agreement under applicable law.
(c) The amount released from the Pre-Funding Account by the Trustee
pursuant to this Section 2.09 shall be the aggregate Cut-off Date Principal
Balance of the Subsequent Mortgage Loans.
(d) The Trustee shall contribute from the Pre-Funding Account funds in an
amount equal to the aggregate Cut-off Date Principal Balance of the Subsequent
Mortgage Loans so transferred to the Trust Fund to purchase the Subsequent
Mortgage Loans on behalf of the Trust Fund, along with the other property and
rights related thereto described in Section 2.09(a) only upon the satisfaction
of each of the following conditions:
(i) the Trustee will be provided Opinions of Counsel addressed
to the Rating Agencies with respect to the sale of the Subsequent
Mortgage Loans conveyed on the Subsequent Transfer Date (the
opinions being substantially similar to the opinions delivered on
the Closing Date to the Rating Agencies with respect to the sale of
the Initial Mortgage Loans on the Closing Date);
(ii) the execution and delivery of the Subsequent Transfer
Agreement or conveyance of the related Subsequent Mortgage Loans
does not result in a reduction
II-13
or withdrawal of the any ratings assigned to the Certificates by the
Ratings Agencies;
(iii) the Depositor shall deliver to the Trustee an Officer's
Certificate confirming the satisfaction of each of the conditions in
Article II and this Section 2.09(d) required to be satisfied by the
Subsequent Transfer Date;
(iv) each Subsequent Mortgage Loan conveyed on the Subsequent
Transfer Date satisfies the representations and warranties
applicable to it under this Agreement;
(v) the Subsequent Mortgage Loans conveyed on the Subsequent
Transfer Date were selected in a manner reasonably believed not to
be adverse to the interests of the Certificateholders;
(vi) no Subsequent Mortgage Loan conveyed on the Subsequent
Transfer Date was 30 or more days delinquent;
(vii) each Subsequent Mortgage Loan conveyed on the Subsequent
Transfer Date that is an Adjustable Rate Mortgage Loan is secured by
a first lien on the related Mortgaged Property;
(viii) following the conveyance of the Subsequent Mortgage
Loans on the Subsequent Transfer Date to the related Loan Group, the
characteristics of the Loan Group listed below will not vary by more
than the permitted variance listed below for each characteristic
with respect to the Initial Mortgage Loans as set forth on the
Mortgage Loan Schedule delivered on the Closing Date; provided that
for the purpose of making the calculations, the characteristics for
each Mortgage Loan made will be taken as of the related Cut-off Date
for the Mortgage Loan:
Variation
Loan Group 1:
Loan Weighted Average Coupon:...................... -0.01%
Weighted Average Maturity.......................... +/- 1 month
Weighted Average Combined Loan-to-Value Ratio:..... + 0.61%
Weighted Average FICO Score........................ -5 points
Balloon Loans:..................................... + 0.01%
Maximum Principal Balance.......................... + 2.00%
State Concentration:............................... + 1.01%
Zip Code Concentration:............................ + 2.00%
Non-Owner Occupied:................................ + 0.71%
Second Liens:...................................... + 0.11%
Manufactured Housing:.............................. + 2.27%
Loan Group 2: Variation
II-14
Loan Weighted Average Coupon:...................... - 0.01%
Weighted Average Maturity.......................... +/- 1 month
Weighted Average Combined Loan-to-Value Ratio:..... + 0.34%
Weighted Average FICO Score........................ -5 points
Performance Loans:................................. + 0.00%
Maximum Principal Balance.......................... + $0.00
State Concentration:............................... + 1.00%
Zip Code Concentration:............................ + 2.00%
Non-Owner Occupied:................................ + 0.24%
First Liens:....................................... + 0.00%
Manufactured Housing:.............................. + 0.02%
(ix) neither the Seller nor the Depositor is insolvent and
neither the Seller nor the Depositor will be rendered insolvent by
the conveyance of Subsequent Mortgage Loans on the Subsequent
Transfer Date;
(x) delivery of a letter or letters addressed to the Trustee
from an independent accountant retained by the Depositor confirming
that the characteristics of each Loan Group, following the
acquisition of the related Subsequent Mortgage Loans, conform to the
characteristics identified in this Section 2.09(d);
(xi) delivery to the Trustee of an Opinion of Counsel, which
Opinion of Counsel shall not be at the expense of either the Trustee
or the Trust Fund, addressed to the Trustee, to the effect that the
purchase of Subsequent Mortgage Loans 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 the
Trust Fund to fail to qualify as a REMIC at any time that any
Certificates are outstanding; and
(xii) delivery to the Trustee of the Mortgage File for each
Subsequent Mortgage Loan to be transferred pursuant to the related
Subsequent Transfer Agreement.
The Trustee shall not be required to investigate or otherwise verify
compliance with these conditions, except for its own receipt of documents
specified above, and shall be entitled to rely on the required Officer's
Certificate.
(e) In connection with each Subsequent Transfer Date and on the related
Distribution Date, the Seller shall determine (i) the amount and correct
dispositions of the funds distributed from the Capitalized Interest Account
and the Pre-Funding Account and (ii) any other necessary matters in connection
with the administration of the Capitalized Interest Account and the
Pre-Funding Account. If the Trustee releases any amounts from a Pre-Funding
Account or from the Capitalized Interest Account because of the Seller's
II-15
calculation error, the Trustee shall not be liable therefor, and the Seller
shall immediately repay the amounts to the Trustee.
Section 2.10. Mandatory Prepayment.
Any Unused Pre-Funding Amount shall be distributed to Holders of the
Certificates in accordance with Section 4.02 on the Distribution Date
following the Pre-Funding Period in which the end of the Pre-Funding Period
occurs.
II-16
ARTICLE THREE
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01. Master Servicer to Service Mortgage Loans.
For and on behalf of the Certificateholders, the Master Servicer shall
service and administer the Mortgage Loans in accordance with this Agreement
and the Servicing Standard.
The Master Servicer shall not make or permit any modification, waiver, or
amendment of any term of any Mortgage Loan that would cause the Trust Fund 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 Master Servicer, in
its own name or in the name of any Servicer or the Depositor and the Trustee,
is hereby authorized and empowered by the Depositor and the Trustee, when the
Master Servicer or the Servicer, as the case may be, 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 Master 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 Master Servicer to service
and administer the Mortgage Loans to the extent that the Master 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 Master Servicer.
In accordance with and to the extent of the Servicing Standard, the
Master 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 Master 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.
Section 3.02. Subservicing; Enforcement of the
Obligations of Subservicers.
(a) The Master Servicer may arrange for the subservicing of any Mortgage
Loan by a subservicer pursuant to a subservicing agreement (a "Subservicer").
The subservicing arrangement and the related subservicing agreement must
provide for the servicing of the
III-1
Mortgage Loans in a manner consistent with the servicing arrangements
contemplated hereunder. Unless the context otherwise requires, references in
this Agreement to actions taken or to be taken by the Master Servicer in
servicing the Mortgage Loans include actions taken or to be taken by a
Subservicer on behalf of the Master Servicer. Notwithstanding anything in any
subservicing agreement or this Agreement relating to agreements or
arrangements between the Master Servicer and a Subservicer or references to
actions taken through a Subservicer or otherwise, the Master Servicer shall
remain obligated and liable to the Trustee and Certificateholders for the
servicing and administration of the Mortgage Loans in accordance with this
Agreement without diminution of its obligation or liability by virtue of the
subservicing agreements or arrangements or by virtue of indemnification from
the Subservicer and to the same extent and under the same terms as if the
Master Servicer alone were servicing and administering the Mortgage Loans. All
actions of each Subservicer performed pursuant to the related subservicing
agreement shall be performed as agent of the Master Servicer with the same
effect as if performed directly by the Master Servicer.
(b) For purposes of this Agreement, the Master Servicer shall be deemed
to have received any collections, recoveries, or payments with respect to the
Mortgage Loans that are received by the Subservicer regardless of whether the
payments are remitted by the Subservicer to the Master Servicer.
Section 3.03. [Reserved].
Section 3.04. No Contractual Relationship Between
Subservicers and the Trustee.
Any subservicing arrangement that may be entered into and any other
transactions or services relating to the Mortgage Loans involving a
Subservicer in its capacity as such shall be deemed to be solely between the
Subservicer and the Master Servicer alone, and the Trustee and
Certificateholders shall not be deemed parties thereto and shall have no
claims, rights, obligations, duties, or liabilities with respect to the
Subservicer in its capacity as such except as set forth in Section 3.05.
Section 3.05. Trustee to Act as Master Servicer.
If the Master Servicer for any reason is no longer the Master Servicer
hereunder (including because of an Event of Default), the Trustee or its
successor shall thereupon assume all of the rights and obligations of the
Master Servicer hereunder arising thereafter (except that the Trustee shall
not be
(i) liable for losses of the Master Servicer pursuant to Section 3.10 or
any acts or omissions of the predecessor Master 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,
III-2
(iv) responsible for expenses of the Master Servicer pursuant to Section
2.03, or
(v) deemed to have made any representations and warranties of the Master
Servicer hereunder. Any assumption shall be subject to Section 7.02.
Every subservicing agreement entered into by the Master Servicer shall
contain a provision giving the successor Master Servicer the option to
terminate the agreement if a successor Master Servicer is appointed.
If the Master Servicer is no longer the Master Servicer for any reason
(including because of any Event of Default), the Trustee (or any other
successor Master Servicer) may, at its option, succeed to any rights and
obligations of the Master Servicer under any subservicing agreement in
accordance with its terms. The Trustee (or any other successor Master
Servicer) shall not incur any liability or have any obligations in its
capacity as successor Master Servicer under a subservicing agreement arising
before the date of succession unless it expressly elects to succeed to the
rights and obligations of the Master Servicer thereunder; and the Master
Servicer shall not thereby be relieved of any liability or obligations under
the subservicing agreement arising before the date of succession.
The Master Servicer shall, upon request of the Trustee, but at the
expense of the Master Servicer, deliver to the assuming party all documents
and records relating to each subservicing agreement and the Mortgage Loans
then being serviced thereunder and an accounting of amounts collected held by
it and otherwise use its best efforts to effect the orderly and efficient
transfer of the subservicing agreement to the assuming party.
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 Master Servicer to act as
successor Master 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;
Pre-Funding Account; Capitalized Interest Account.
(a) In accordance with and to the extent of the Servicing Standard, the
Master 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 Master Servicer may in its discretion (i)
waive any late payment charge or any prepayment charge or penalty interest in
connection with the prepayment of a Mortgage Loan and (ii) extend the due
dates for payments due on a Mortgage Note for a period not greater than 125
days. However, the Master Servicer cannot extend the maturity of any Mortgage
Loan past the date on which the final payment is due on the latest
III-3
maturing Mortgage Loan in the applicable Loan Group as of the related Cut-off
Date. In the event of any such arrangement, the Master 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
Master 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.
(b) The Master Servicer shall establish and maintain (or, if a Mortgage
Loan is subserviced by another Person, cause the related Subservicer to
establish and maintain) one or more Servicing Accounts into which the Master
Servicer shall deposit on a daily basis within one Business Day of receipt,
the following payments and collections received by it or remitted by any
Subservicer in respect of Mortgage Loans after the related Cut-off Date (other
than in respect of principal and interest due on the Mortgage Loans by the
related 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, in cases where the Master Servicer
maintains the Servicing Account, the related Master Servicer Fee; and
(iii) all Insurance Proceeds 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 Master
Servicer's normal servicing procedures.
By the Determination Date in each calendar month, the Master 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 Master Servicer
shall (a) withdraw such amounts from the Servicing Account and (b) deposit
such amounts in the Collection Account.
(c) The Master Servicer shall establish and maintain a Collection Account
into which the Master Servicer shall deposit, as and when required by
paragraph (b) of this Section 3.06, all amounts required to be deposited into
the Collection Account pursuant to that paragraph.
(d) The Master Servicer shall establish and maintain a Certificate
Account into which the Master 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
III-4
following payments and collections received by it or remitted by any
Subservicer in respect of Mortgage Loans after the related Cut-off Date (other
than in respect of principal and interest due on the Mortgage Loans by the
related 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 related Servicing Fee and the related Master Servicing Fee;
(iii) all Insurance Proceeds 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 Master
Servicer's normal servicing procedures;
(iv) [Reserved];
(v) any amounts required to be deposited by the Master Servicer
pursuant to Sections 3.12 and 3.14;
(vi) all Purchase Prices from the Master Servicer or Seller and all
Substitution Adjustment Amounts;
(vii) all Advances made by the Master Servicer pursuant to Section
4.01;
(viii) any other amounts required to be deposited hereunder; 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 Master 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 Master Servicing Fee on
that date.
The foregoing requirements for remittance by the Master 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 Master Servicer. If
the Master Servicer remits any amount not required to be remitted, it may at
any time withdraw that amount from the Certificate Account, any provision
herein 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 Master Servicer shall
maintain adequate records with respect to all withdrawals made pursuant to
this Section 3.06. All funds deposited in the Certificate Account shall be
held in trust for the Certificateholders until withdrawn in accordance with
Section 3.09.
III-5
(e) --
(i) The Trustee shall establish and maintain the Excess Reserve Fund
Account, on behalf of the Class X Certificateholder, to secure its
limited recourse obligation to pay to the other Certificateholders Net
WAC Cap CarryForward Amounts.
(ii) On the Closing Date, the Depositor shall deposit into the
Excess Reserve Fund Account $10,000.
(iii) On each Distribution Date, the Trustee shall deposit the
amount of any Net WAC Cap Payment for that date into the Excess Reserve
Fund Account.
(iv) The Trustee shall invest amounts held in the Excess Reserve
Fund Account only in Permitted Investments, which shall mature not later
than the Business Day next preceding the next Distribution Date (except
that if such Permitted Investment is an obligation of the institution
that maintains such account, then such Permitted Investment shall mature
not later than the next Distribution Date) and, in each case, shall not
be sold or disposed of before its maturity. The Class X Certificateholder
shall direct the Trustee in writing with respect to investment of amounts
in the Excess Reserve Fund.
(f) --
(i) On each Distribution Date on which a Net WAC Cap CarryForward
Amount exists for any Class of Certificates, the Trustee shall withdraw
from the Excess Reserve Fund Account amounts necessary to pay to the
Class of Certificates the Net WAC Cap CarryForward Amount. Such payments
shall be allocated to those Classes on a pro rata basis based upon the
amount of Net WAC Cap CarryForward Amount owed to each Class and shall be
paid in the priority in Section 4.02(I)(iii)(b) and 4.02(I)(iii)(k).
(ii) The Trustee shall account for the Excess Reserve Fund Account
as an outside reserve fund within the meaning of Treasury regulation
1.860G-2(h) and not an asset of any REMIC created pursuant to this
Agreement. The owners of the Excess Reserve Fund Account are the Class X
Certificateholder. The Trustee shall treat amounts transferred by the
Upper Tier REMIC to the Excess Reserve Fund Account as distributions to
the Class X Certificateholder for all Federal tax purposes.
(iii) Any Net WAC Cap CarryForward Amounts paid by the Trustee to
the Certificateholders shall be accounted for by the Trustee as amounts
paid to the Holder of the Class X Certificate. In addition, the Trustee
shall account for the Certificateholders' rights to receive payments of
Net WAC Cap CarryForward Amounts as rights in a limited recourse interest
rate cap contract written by the Class X Certificateholder in favor of
the other Certificateholders.
III-6
(iv) Notwithstanding any provision contained in this Agreement, the
Trustee shall not be required to make any payments from the Excess
Reserve Fund Account except as expressly set forth in this Section
3.06(f).
(g) 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 therein the following:
(i) the aggregate amount remitted by the Master Servicer to the
Trustee pursuant to Section 3.09(a);
(ii) any amount deposited by the Master Servicer pursuant to Section
3.06(h) in connection with any losses on Permitted Investments; and
(iii) any other amounts deposited hereunder which are required to be
deposited in the Distribution Account.
If the Master 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 herein 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 Master Servicer.
(h) Each institution at which the Certificate Account is maintained shall
invest the funds therein as directed in writing by the Master 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 shall not be
sold or disposed of before its maturity. All Permitted Investments shall be
made in the name of the Trustee, for the benefit of the Certificateholders.
All income realized from any investment of funds on deposit in the Certificate
Account shall be for the benefit of the Master Servicer as servicing
compensation and shall be remitted to it monthly as provided herein. The
amount of any realized losses on Permitted Investments in the Certificate
Account shall promptly be deposited by the Master 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.
The Trustee shall invest funds in the Capitalized Interest Account or
Pre-Funding Account as directed in writing by the Master Servicer in Permitted
Investments, which shall mature not later than the Business Day next preceding
the Distribution Date (except that if such
III-7
Permitted Investment is an obligation of the institution that maintains such
account, then such Permitted Investment shall mature not later than the
Distribution Date) and, in each case, shall not be sold or disposed of before
its maturity. All such Permitted Investments shall be made in the name of the
Trustee, for the benefit of the Certificateholders.
(i) The Trustee shall establish and maintain, on behalf of the
Certificateholders, a separate account denominated the Pre-Funding Account in
the name of the Trustee. The Pre-Funding Account shall be treated as an
"outside reserve fund" under applicable Treasury regulations and shall not be
part of any REMIC. Any investment earnings on the Pre-Funding Account shall be
treated as owned by the Seller and will be taxable to the Seller. On the
Closing Date, the Seller shall remit $28,224,863 to the Trustee for deposit in
the Pre-Funding Account. The Trustee shall hold the Pre-Funding Account for
the purchase of Subsequent Mortgage Loans.
The Trustee shall establish and maintain, on behalf of the
Certificateholders, two separate accounts denominated the Capitalized Interest
Account in the name of the Trustee. The Capitalized Interest Account shall be
treated as an "outside reserve fund" under applicable Treasury regulations and
shall not be part of the REMIC. Any investment earnings on the Capitalized
Interest Account shall be treated as owned by the Seller and will be taxable
to the Seller.
On each Subsequent Transfer Date, upon satisfaction of the conditions in
Section 2.09, the Trustee shall withdraw from the Pre-Funding Account 100% of
the aggregate of the Cut-off Date Principal Balances of the Subsequent
Mortgage Loans sold to the Trust Fund on the Subsequent Transfer Date and pay
that amount to the order of the Seller.
On the Business Day before the Distribution Date following the Remittance
Period in which the Pre-Funding Period ends, the Trustee shall (i) withdraw
the Unused Pre-Funding Amount from the Pre-Funding Account, (ii) promptly
deposit the amount in the Distribution Account, and (iii) distribute the
amount on the Distribution Date pursuant to Section 4.02.
The amount deposited in the Distribution Account pursuant to the
preceding paragraph shall be net of any investment earnings on the amounts on
deposit in the Pre-Funding Account.
On the Business Day before each Distribution Date, through the
Distribution Date following the Remittance Period in which the Pre-Funding
Period ends, the Trustee shall transfer from the Capitalized Interest Account
to the Distribution Account the Capitalized Interest Requirement and shall
distribute such amount on the Distribution Date pursuant to Section 4.02. To
the extent that a Capitalized Interest Requirement on any the Distribution
Date exceeds the amounts on deposit in the Capitalized Interest Account, the
Trustee shall transfer to the Distribution Account, to the extent of the
shortfall in the Capitalized Interest Requirement, the investment earnings on
the amounts on deposit in the Capitalized Interest Account and Pre-Funding
Account. The remaining investment earnings on deposit in the Capitalized
Interest Account and the Pre-Funding Account shall be transferred to the
Seller.
III-8
All amounts remaining in the Capitalized Interest Account and any
investment earnings remaining in the Pre-Funding Account on the Distribution
Date following the Remittance Period in which the Pre-Funding Period ends
shall be transferred to the Seller.
(j) The Master 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 and the Collection Account not later than 30 days and
not more than 45 days before any change thereof.
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 Master Servicer shall establish and maintain one or more
accounts (each, an "Escrow Account") and deposit and retain therein all
collections from the Mortgagors (or advances) for the payment of taxes,
assessments, hazard insurance premiums or comparable items for the account of
the Mortgagors. Nothing herein shall require the Master 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 Master Servicer out of related collections
for any payments made pursuant to Sections 3.12 (with respect to taxes and
assessments and insurance premiums) and 3.13 (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 Master Servicer shall advance any payments referred to in Section
3.07(a) that are not timely paid by the Mortgagors or advanced by the Master
Servicer on the date when the tax, premium or other cost for which such
payment is intended is due, but the Master Servicer shall be required so to
advance only to the extent that such advances, in the good faith judgment of
the Master Servicer, will be recoverable by the Master Servicer out of
Insurance Proceeds, Liquidation Proceeds or otherwise.
Section 3.08. Access to Certain Documentation and Information
Regarding the Mortgage Loans.
The Master 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 Master
Servicer.
III-9
Upon reasonable advance notice in writing, the Master Servicer will
provide to each Certificateholder 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 to comply with applicable regulations of the OTS
or other regulatory authorities with respect to investment in the
Certificates. The Master Servicer shall be entitled to be reimbursed by each
such Certificateholder for actual expenses incurred by the Master Servicer in
providing the reports and access.
Section 3.09. Permitted Withdrawals from the
Certificate Account, the Distribution
Account and the Excess Reserve Fund Account.
(a) The Master 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 Master Servicer or the related Subservicer (to the
extent not previously retained) the servicing compensation to which it is
entitled pursuant to Section 3.15, and to pay to the Master Servicer, as
additional master servicing compensation, earnings on or investment
income with respect to funds in or credited to the Certificate Account;
(ii) to reimburse the Master Servicer for unreimbursed Advances made
by it, such right of reimbursement pursuant to this subclause (ii) being
limited to amounts received on the Mortgage Loans in respect of which the
Advance was made;
(iii) to reimburse the Master Servicer for any Nonrecoverable
Advance previously made;
(iv) to reimburse the Master Servicer for Insured Expenses from the
related Insurance Proceeds;
(v) to reimburse the Master Servicer for (a) unreimbursed Servicing
Advances, the Master 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 and (b) for unpaid Master 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 thereof that has been purchased pursuant to
Section 2.02, 2.03, or 3.14, all amounts received thereon after the date
of such purchase;
(vii) to reimburse the Seller, the Master Servicer, or the Depositor
for expenses incurred by any of them and reimbursable pursuant to Section
6.03;
III-10
(viii) to withdraw any amount deposited in the Certificate Account
and not required to be deposited therein;
(ix) by the Distribution Account Deposit Date, to withdraw (1)
Available Funds, the Trustee Fee for the Distribution Date, and the
amount of any insurance premiums payable under (b)(ii) below, 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 Master 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 Master Servicer shall deliver to the Trustee an Officer's
Certificate of a Servicing Officer indicating the amount of any previous
Advance determined by the Master 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 pay to PMI all premiums due under the primary mortgage
guaranty insurance acquired by the Trust Fund from PMI, to pay premiums
for any substitutions for that coverage, and to pay any applicable
premium taxes imposed on the Trust Fund required in any state;
(iii) to pay to the Master Servicer as additional servicing
compensation earnings on or investment income with respect to funds in
the Distribution Account;
(iv) to withdraw and return to the Master Servicer any amount
deposited in the Distribution Account and not required to be deposited
therein; and
(v) to clear and terminate the Distribution Account upon termination
of the Agreement pursuant to Section 9.01.
(c) On each Distribution Date, the Trustee shall make withdrawals from
the Excess Reserve Fund Account for deposit in the Distribution Account of the
amount required pursuant to Section 3.06(f). On the earlier of (i) the
termination of this Agreement pursuant to Section 9.01 and (ii) the later of
(x) the Distribution Date on which all of the Certificates (other than the
III-11
Class X Certificates) are reduced to zero and (y) the July 2004 Distribution
Date, any amount remaining on deposit in the Excess Reserve Fund Account after
giving effect to the requirements of the preceding sentence shall be withdrawn
by the Trustee and paid to the Class X Certificateholders.
Section 3.10. Maintenance of Hazard Insurance; Maintenance
of Primary Insurance Policies.
(a) The Master 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 Master 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 Master 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 Master 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 Master 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
Master Servicer shall deposit in the Certificate Account the
III-12
amount not otherwise payable under the blanket policy because of the
deductible clause. In connection with its activities as Master Servicer of the
Mortgage Loans, the Master 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 Master Servicer shall not take any action that would result in
non-coverage under any applicable Primary Insurance Policy or under the
primary mortgage guaranty insurance acquired by the Trust Fund from PMI of any
loss that, but for the actions of the Master Servicer, would have been covered
thereunder. The Master 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 or the
primary mortgage guaranty insurance acquired by the Trust Fund from PMI unless
the replacement Primary Insurance Policy for the canceled or non-renewed
policy is maintained with a Qualified Insurer. The Master Servicer need not
maintain any Primary Insurance Policy if maintaining the Primary Insurance
Policy is prohibited by applicable law. The Master 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 Master Servicer from the related
liquidation proceeds. The Master Servicer shall maintain for as long as each
relevant Mortgage Loan is outstanding the mortgage insurance associated with
the Mortgage Loans identified on the Mortgage Loan Schedule as having lender
acquired mortgage insurance or primary mortgage guaranty insurance acquired by
the Trust Fund from PMI, and as to any other Mortgage Loans the Master
Servicer need not maintain any Primary Insurance Policy with respect to any
Mortgage Loan with a Loan-to-Value Ratio or Combined Loan-to-Value Ratio (as
applicable) less than or equal to 80% as of any date of determination or,
based on a new appraisal, the principal balance of the Mortgage Loan
represents 80% or less of the new Appraised Value.
In connection with its activities as Master Servicer of the Mortgage
Loans, the Master Servicer agrees to present, on behalf of itself, the Trustee
and the Certificateholders, claims to the insurer under any Primary Insurance
Policies and under the primary mortgage guaranty insurance acquired by the
Trust Fund from PMI and, in this regard, to take any reasonable action in
accordance with the Servicing Standard necessary to permit recovery under any
Primary Insurance Policies and under the primary mortgage guaranty insurance
acquired by the Trust Fund from PMI respecting defaulted Mortgage Loans. Any
amounts collected by the Master Servicer under any Primary Insurance Policies
and under the primary mortgage guaranty insurance acquired by the Trust Fund
from PMI 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 Master Servicer
shall to the extent that it
III-13
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 Master 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 Master 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 Master
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 Master Servicer enters into
the agreement) by the applicable Required Insurance Policies.
The Master 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 Master Servicer shall not be deemed to be
in default under this Section 3.11 because of any transfer or assumption that
the Master Servicer reasonably believes it is restricted by law from
preventing, for any reason whatsoever.
(b) Subject to the Master 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 Master
Servicer shall prepare and deliver to the Trustee for signature and shall
direct the Trustee, in writing, to execute the assumption agreement with the
Person to whom the Mortgaged Property is to be conveyed, and the modification
agreement or supplement to the Mortgage Note or Mortgage or other instruments
appropriate to carry out the terms of the Mortgage Note or Mortgage or
otherwise to comply with any applicable laws regarding assumptions or the
transfer of the Mortgaged Property to the Person. In connection with any such
assumption, no material term of the Mortgage Note may be changed.
III-14
In addition, the substitute Mortgagor and the Mortgaged Property must be
acceptable to the Master 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 Master Servicer shall deliver an Officer's Certificate signed by a
Servicing Officer stating that the requirements of this subsection have been
met in connection therewith. The Master 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 thereof. The
Master Servicer will retain any fee collected by it for entering into an
assumption or substitution of liability agreement as additional master
servicing compensation.
Section 3.12. Realization Upon Defaulted Mortgage Loans;
Repurchase of Certain Mortgage Loans.
(a) The Master Servicer shall use reasonable efforts in accordance with
the Servicing Standard to foreclose on or otherwise comparably convert the
ownership of Mortgaged Properties in respect of which the related Mortgage
Loans as come into and continues 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 Master Servicer shall follow the
Servicing Standard and shall follow the requirements of the insurer under any
Required Insurance Policy.
Notwithstanding the foregoing, the Master 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 Master Servicer shall be responsible for all other
costs and expenses incurred by it in any foreclosure proceedings. The Master
Servicer is entitled to reimbursement thereof from the liquidation proceeds
with respect to the related Mortgaged Property, as provided in the definition
of Liquidation Proceeds. If the Master Servicer has knowledge that a Mortgaged
Property that the Master Servicer is contemplating acquiring in foreclosure or
by deed in lieu of foreclosure is located within 1 mile 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 Master
Servicer, the Master 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
III-15
the Trustee hereunder and not in its individual capacity. The Master 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 Master Servicer shall either itself or
through an agent selected by the Master Servicer protect and conserve the REO
Property in accordance with the Servicing Standard as the Master Servicer
deems to be in the best interest of the Certificateholders for the period
before the sale of the REO Property.
The Master 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, and delivering the same to the Trustee for
filing.
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 Master 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 in such a manner or pursuant to any terms that would (i) cause the
Mortgaged Property to fail to qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code or (ii) subject any REMIC to the
imposition of any federal, state, or local income taxes on the proceeds from
the Mortgaged Property under Section 860G(c) of the Code or otherwise, unless
the Master Servicer has agreed to indemnify and hold harmless the Trust Fund
with respect to the imposition of any such taxes.
The decision of the Master Servicer to foreclose on a defaulted Mortgage
Loan shall be subject to a determination by the Master Servicer that the
proceeds of the foreclosure would exceed the costs and expenses of bringing a
foreclosure proceeding and would comply with the requirements of the primary
mortgage guaranty insurance acquired by the Trust Fund from PMI. The proceeds
from the maintenance of any REO Properties, net of reimbursement to the Master
Servicer for expenses incurred (including any property or other taxes) in
connection with management 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 income 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 proceeds received during any calendar month exceeds the amount
attributable to amortizing principal and accrued interest
III-16
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 Master Servicer for any related unreimbursed
Servicing Advances or Master Servicing Fees, as applicable; second, to
reimburse the Master Servicer, as applicable, and to reimburse the Certificate
Account for any Nonrecoverable Advances (or portions thereof) that were
previously withdrawn by the Master Servicer pursuant to Section 3.09(a)(ii)
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 through the Remittance Period preceding the Distribution
Date on which such amounts are required to be distributed; and fourth, as a
recovery of principal of the Mortgage Loan. The Master Servicer will retain
any Excess Proceeds from the liquidation of a Liquidated Mortgage Loan as
additional servicing compensation pursuant to Section 3.15.
(b) The Master Servicer, in its sole discretion, shall have the right to
purchase for its own account from the Trust Fund any Mortgage Loan that is 151
days or more delinquent at a price equal to the Purchase Price. The Master
Servicer may only exercise this right on or before the next to the last day of
the calendar month (the "Eligible Repurchase Month") in which the Mortgage
Loan became 151 days delinquent. Any delinquent Mortgage Loan that becomes
current but thereafter becomes delinquent may be purchased by the Master
Servicer pursuant to this Section in any ensuing Eligible Repurchase Month.
The Purchase Price for any Mortgage Loan purchased hereunder shall be
deposited in the Certificate Account and the Trustee, upon receipt of a
certificate from the Master Servicer in the form of Exhibit N , shall release
to the purchaser of the Mortgage Loan the related Mortgage File and shall
execute and deliver such instruments of transfer or assignment prepared by the
purchaser of the Mortgage Loan, in each case without recourse, as shall be
necessary to vest in the purchaser of the Mortgage Loan any Mortgage Loan
released pursuant hereto and the purchaser of the Mortgage Loan shall succeed
to all the Trustee's interest in the Mortgage Loan and all security and
documents related thereto. Such assignment shall be an assignment outright and
not for security. The purchaser of the Mortgage Loan shall thereupon own the
Mortgage Loan, and all security and documents, free of any further obligation
to the Trustee or the Certificateholders with respect thereto.
(c) The Master Servicer may agree to a modification of any Mortgage Loan
(the "Relevant Mortgage Loan") at the request of the related Mortgagor if the
modification is in lieu of a refinancing and the Mortgage Rate on the Relevant
Mortgage Loan, as modified, is approximately a prevailing market rate for
newly-originated mortgage loans having similar terms and (ii) the Master
Servicer purchases the Relevant Mortgage Loan from the Trust Fund as described
below. Effective immediately after the modification, and, in any event, on the
same Business Day on which the modification occurs, all interest of the
Trustee in the Modified
III-17
Mortgage Loan shall automatically be deemed transferred and assigned to the
Master Servicer and all benefits and burdens of ownership thereof, including
the right to accrued interest thereon from the date of modification and the
risk of default thereon, shall pass to the Master Servicer. The Master
Servicer shall promptly deliver to the Trustee a certification of a Servicing
Officer to the effect that all requirements of the first paragraph of this
subsection (c) have been satisfied with respect to the Modified Mortgage Loan.
The Master Servicer shall deposit the Purchase Price for any Modified
Mortgage Loan in the Certificate Account pursuant to Section 3.06 within one
Business Day after the purchase of the Modified 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 Master Servicer the related Mortgage
File and shall execute and deliver such instruments of transfer or assignment,
in each case without recourse, as shall be necessary to vest in the Master
Servicer any Modified Mortgage Loan previously transferred and assigned
pursuant hereto.
The Master 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 subsection (c), any holding of a Modified Mortgage Loan by the Trust
Fund or any purchase of a Modified Mortgage Loan by the Master Servicer (but
such obligation shall not prevent the Master Servicer or any other appropriate
Person from contesting any such tax in appropriate proceedings and shall not
prevent the Master Servicer from withholding payment of such tax, if permitted
by law, pending the outcome of such proceedings). The Master 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
or the Master Servicer.
Section 3.13. Trustee to Cooperate; Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the receipt by the
Master Servicer of a notification that payment in full will be escrowed in a
manner customary for such purposes, the Master 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 Master Servicer, and the Trustee
shall at the Master Servicer's direction execute and deliver to the Master
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 Master Servicer, together with the Mortgage Note
with written evidence of cancellation thereon. 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
III-18
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 Master
Servicer or its designee. Subject to the further limitations set forth below,
the Master Servicer shall cause the Mortgage File or documents so released to
be returned to the Trustee when the need therefor by the Master Servicer no
longer exists, unless the Mortgage Loan is liquidated and the proceeds thereof
are deposited in the Certificate Account, in which case the Master Servicer
shall deliver to the Trustee a Request for Release in the form of Exhibit N,
signed by a Servicing Officer.
If the Master Servicer at any time seeks to initiate a foreclosure
proceeding in respect of any Mortgaged Property as authorized by this
Agreement, the Master 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 Master Servicer to be Held for the Trustee.
The Master Servicer shall account fully to the Trustee for any funds it
receives or otherwise collects as Liquidation Proceeds or Insurance Proceeds
in respect of any Mortgage Loan. All Mortgage Files and funds collected or
held by, or under the control of, the Master 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 Master 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 Master
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 Master Servicer shall be entitled to set off against and deduct from any
such funds any amounts that are properly due and payable to the Master
Servicer under this Agreement.
Section 3.15. Servicing Compensation.
As compensation for its activities hereunder, the Master Servicer may
retain or withdraw from the Servicing Account, the Collection Account, or the
Certificate Account the
III-19
Master Servicing Fee for each Mortgage Loan for the related Distribution Date.
Notwithstanding the foregoing, the aggregate Master Servicing Fee and
Servicing Fee payable to the Master 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 Master 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 Master Servicer
directly services a Mortgage Loan, the Master Servicer may retain the
Servicing Fee for its own account as compensation for performing services. If
a Subservicer directly services a Mortgage Loan, unless the Subservicer
retains the Servicing Fee, the Master Servicer shall remit the Servicing Fee
to the related Subservicer as compensation for performing services.
Additional master servicing compensation in the form of Excess Proceeds,
assumption fees, late payment charges and all income and gain net of any
losses realized from Permitted Investments shall be retained by the Master
Servicer to the extent not required to be deposited in the Certificate Account
pursuant to Section 3.06. The Master Servicer shall be required to pay all
expenses incurred by it in connection with its servicing activities hereunder
(including the fees of any Subservicer, 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 Master Servicer shall provide to the OTS and the FDIC and to
comparable regulatory authorities supervising Holders of Subordinated
Certificates 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 Master Servicer.
Nothing in this Section 3.16 shall limit the obligation of the Master Servicer
to observe any applicable law prohibiting disclosure of information regarding
the Mortgagors and the failure of the Master Servicer to provide access as
provided in this Section 3.16 as a result of such obligation shall not
constitute a breach of this Section 3.16.
Section 3.17. Annual Statement as to Compliance.
The Master Servicer shall deliver to the Depositor and the Trustee by 120
days after the end of each year, commencing with 2001, an Officer's
Certificate stating, as to the signer thereof, that (i) a review of the
activities of the Master Servicer during the preceding calendar year and of
the performance of the Master Servicer under this Agreement has been made
under the officer's supervision, and (ii) to the best of the officer's
knowledge, based on the review, the
III-20
Master Servicer has fulfilled all its obligations under this Agreement
throughout the year, or, if there has been a default in the fulfillment of any
obligation, specifying each default known to the officer and its nature and
status. The Trustee shall forward a copy of each compliance statement to each
Rating Agency.
Section 3.18. Annual Independent Public Accountants'
Servicing Statement; Financial Statements.
By 120 days after the end of each year, commencing with 2001, the Master
Servicer at its expense shall cause a nationally or regionally recognized firm
of independent public accountants (who may also render other services to the
Master Servicer, the Seller or any affiliate thereof) which is a member of the
American Institute of Certified Public Accountants to furnish a statement to
the Trustee and the Depositor to the effect that the firm has examined certain
documents and records relating to the servicing of the Mortgage Loans under
this Agreement or of mortgage loans under pooling and servicing agreements
substantially similar to this Agreement (the statement to have attached to it
a schedule of the pooling and servicing agreements covered by it) and that, on
the basis of its examination, conducted substantially in compliance with the
Audit Guide for Audits of HUD Approved Nonsupervised Mortgagees, the Uniform
Single Attestation Program for Mortgage Bankers, or the Audit Program for
Mortgages serviced for FNMA and FHLMC, such servicing has been conducted in
compliance with the pooling and servicing agreements except for any
significant exceptions or errors in records that, in the opinion of the firm,
the Audit Guide for Audits of HUD Approved Nonsupervised Mortgagees, the
Uniform Single Attestation Program for Mortgage Bankers, or the Audit Program
for Mortgages serviced for FNMA and FHLMC requires it to report. In rendering
the statement, the firm may rely, as to matters relating to direct servicing
of mortgage loans by the subservicers, upon comparable statements for
examinations conducted substantially in compliance with the Audit Guide for
Audits of HUD Approved Nonsupervised Mortgagees, the Uniform Single
Attestation Program for Mortgage Bankers, or the Audit Program for Mortgages
serviced for FNMA and FHLMC (rendered within one year of the statement) of
independent public accountants with respect to the related Subservicer. The
Master Servicer delivers the statement to the Trustee so that the Trustee can
provide copies of the statement to any Certificateholder on request at the
Master Servicer's expense.
Section 3.19. Errors and Omissions Insurance; Fidelity Bonds.
The Master Servicer shall obtain and maintain in force (a) policies of
insurance covering errors and omissions in the performance of its obligations
as Master 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 Master 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.
III-21
Section 3.20. Prepayment Charges.
(a) The Master Servicer will not waive any part of any Prepayment Charge
unless the waiver would maximize recovery of total proceeds taking into
account the value of the Prepayment Charge and related Mortgage Loan and doing
so is standard and customary in servicing similar Mortgage Loans (including
any waiver of a Prepayment Charge in connection with a refinancing of a
Mortgage Loan that is related to a default or a reasonably foreseeable
default). The Master Servicer will not waive a Prepayment Charge in connection
with a refinancing of a Mortgage Loan that is not related to a default or a
reasonably foreseeable default.
(b) The information in the Prepayment Charge Schedule (including the
attached prepayment charge summary) is complete and accurate in all material
respects at the dates as of which the information is furnished and each
Prepayment Charge is permissible and enforceable in accordance with its terms
under applicable state law.
(c) Upon discovery by the Seller or a Responsible Officer of the Trustee
of a breach of the foregoing, which materially and adversely affects right of
the Holders of the Class P Certificate to any Prepayment Charge, the party
discovering the breach shall give prompt written notice to the other parties.
Within 60 days of the earlier of discovery by the Master Servicer or receipt
of notice by the Master Servicer of breach, the Master Servicer shall cure the
breach in all material respects. If the covenant made by the Master Servicer
in clause (a) above is breached, the Master Servicer must pay into the
Collection Account the amount of the waived Prepayment Charge. If the
representation may by the Master Servicer in clause (b) above is breached, the
Master Servicer must pay into the Collection Account the amount of the
scheduled Prepayment Charge, less any amount previously collected and paid by
the Master Servicer into the Collection Account.
III-22
ARTICLE FOUR
DISTRIBUTIONS AND ADVANCES BY THE MASTER SERVICER
Section 4.01. Advances.
The Master Servicer shall determine by each Master Servicer Advance Date
whether it is required to make an Advance pursuant to the definition of
Advance. If the Master Servicer determines it is required to make an Advance,
it shall, by the Master Servicer Advance Date, either (i) deposit into the
Certificate Account 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 Master Servicer in discharge of its
obligation to make the Advance. The Master Servicer shall replace any funds so
applied by making a deposit in the Certificate Account no later than the close
of business on the next Master Servicer Advance Date. The Master Servicer
shall 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 the Mortgage Loan has been foreclosed or otherwise terminated and the
related Mortgaged Property has not been liquidated. The Master Servicer shall
inform the Trustee of the amount of the Advance to be made on each Master
Servicer Advance Date no later than the second Business Day before the related
Distribution Date.
The Master Servicer shall deliver to the Trustee on the related Master
Servicer Advance Date an Officer's Certificate of a Servicing Officer
indicating the amount of any proposed Advance determined by the Master
Servicer to be a Nonrecoverable Advance.
Section 4.02. Priorities of Distribution.
(I) On each Distribution Date, the Trustee will make the disbursements
and transfers from amounts then on deposit in the Distribution Account in the
following order of priority for each Certificate Group and, in each case, to
the extent of the remaining Available Funds:
(i) to the holders of each Class of Certificates in the following
order of priority:
(a) to the Class A Certificates, the Accrued Certificate Interest
Distribution Amount and any Unpaid Interest Amounts for the Distribution
Date;
(b) to the Class MF-1 Certificates, the Accrued Certificate Interest
Distribution Amount for the Class on the Distribution Date;
(c) to the Class MF-2 Certificates, the Accrued Certificate Interest
Distribution Amount for the Class on the Distribution Date;
IV-1
(d) to the Class B Certificates, the Accrued Certificate Interest
Distribution Amount for the Class on the Distribution Date;
(ii) A. with respect to each Distribution Date (a) before the
Stepdown Date or (b) with respect to which a Trigger Event is in effect, to
the holders of the Classes of Offered Certificates then entitled to
distributions of principal as set forth below, the applicable principal
distribution amount in the following order of priority:
(x) (1) in the case of the Group 1 Class A Certificates and the
Class R Certificate, the Group 1 Principal Distribution Amount:
o to the Class R Certificates, until their Class
Certificate Balance is reduced to zero;
o to the Class AF-6 Certificates an amount equal to
the AF-6 Share times the Lockout Percentage; and then
o sequentially to the Class AF-1, Class AF-2, Class
AF-3, Class AF-4, Class AF-5, and Class AF-6 Certificates,
until their respective Class Certificate Balances are
reduced to zero;
(2) in the case of the Group 2 Certificates, the Group 2
Principal Distribution Amount to the Class AV Certificates
until their Class Certificate Balance is reduced to zero;
(y) sequentially to the Class MF-1, Class MF-2, and Class B
Certificates until their respective Class Certificate Balances are
reduced to zero;
B. on each Distribution Date (a) on and after the Stepdown Date and
(b) as long as a Trigger Event is not in effect, to the holders of the Classes
of Offered Certificates then entitled to distributions of principal an amount
equal to, in the aggregate, the applicable principal distribution amount in
the following amounts and order of priority:
(a) the lesser of (x) the Principal Distribution Amount and (y)
the Class A Principal Distribution Amount, in the following order of
priority:
(1) in the case of the Group 1 Class A Certificates and the
Class R Certificate, the Group 1 Principal Distribution Amount:
o to the Class R Certificates, until their Class
Certificate Balance is reduced to zero;
o to the Class AF-6 Certificates an amount equal to
the AF-6 Share times the Lockout Percentage; and then
o sequentially to the Class AF-1, Class AF-2, Class
AF-3, Class AF-4, Class AF-5, and Class AF-6 Certificates,
until their respective Class Certificate Balances are
reduced to zero;
IV-2
(2) in the case of the Group 2 Certificates, the Group 2
Principal Distribution Amount to the Class AV Certificates
until their Class Certificate Balance is reduced to zero;
(b) the lesser of (x) the excess of (i) the Principal Distribution
Amount over (ii) the amount distributed to the Class A Certificateholders
in clause (ii) B. (a) above and (y) the Class M-1 Principal Distribution
Amount to the Class MF-1 Certificateholders, until their Class
Certificate Balance has been reduced to zero;
(c) the lesser of (x) the excess of (i) the Principal Distribution
Amount over (ii) the amount distributed to the Class A Certificateholders
in clause (ii) B. (a) above and to the Class MF-1 Certificates in clause
(ii) B. (b) above and (y) the Class M-2 Principal Distribution Amount to
the Class MF-2 Certificateholders, until their Class Certificate Balance
has been reduced to zero;
(d) the lesser of (x) the excess of (i) the Principal Distribution
Amount over (ii) the amount distributed to the Class A Certificateholders
in clause (ii) B. (a) above, to the Class MF-1 Certificates in clause
(ii) B. (b) above and to the Class MF-2 Certificates in clause (ii) B.
(c) above and (y) the Class B Principal Distribution Amount to the Class
B Certificateholders, until their Class Certificate Balance has been
reduced to zero;
(iii) any amount of Available Funds remaining after the distributions in
clauses (i) and (ii) above shall be distributed in the following order of
priority with respect to the Certificates:
(a) to fund the Extra Principal Distribution Amount for the
Distribution Date to be paid as a component of the Principal Distribution
Amount in the same order of priority as described in clause (ii) above;
(b) to the holders of the Class MF-1 Certificates, any Unpaid
Interest Amounts for the Class;
(c) to the holders of the Class MF-1 Certificates, any Unpaid
Realized Loss Amount for the Class;
(d) to the holders of the Class MF-2 Certificates, any Unpaid
Interest Amounts for the Class;
(e) to the holders of the Class MF-2 Certificates, any Unpaid
Realized Loss Amount for the Class;
(f) to the holders of the Class B Certificates, any Unpaid Interest
Amounts for the Class;
(g) to the holders of the Class B Certificates, any Unpaid Realized
Loss Amount for the Class;
IV-3
(h) to the Excess Reserve Fund Account, the amount of any Net WAC
Cap Payment for the Distribution Date;
(i) to the holders of any affected Certificates from funds in the
Excess Reserve Fund Account, any Net WAC Cap CarryForward Amount for the
Distribution Date in the same order and priority in which Accrued
Certificate Interest is allocated;
(j) to the holders of the Class X Certificate, the Class X
Distributable Amount; and
(k) to the holders of the Class R Certificates, any remaining
amount.
(II) On each Distribution Date, an amount equal to Prepayment Charges
received during the related Prepayment Period will be distributed to the
holders of the Class P Certificates.
Section 4.03. Monthly Statements to Certificateholders.
(a) Not later than each Distribution Date, the Trustee shall prepare and
make available to each Certificateholder, the Master Servicer, the Depositor,
and each Rating Agency on its Internet website a statement for the related
distribution of:
(i) the amount of the distribution allocable to principal,
separately identifying the aggregate amount of any Principal Prepayments
and Liquidation Proceeds included therein;
(ii) the amount of the distribution allocable to interest, any
Unpaid Interest Amounts included in the distribution and any remaining
Unpaid Interest Amounts after giving effect to the distribution, any Net
WAC Cap CarryForward Amount for the Distribution Date, and the amount of
all Net WAC Cap Carry Forward Amount covered by withdrawals from the
Excess Reserve Fund Account on the Distribution Date;
(iii) 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, including
any Net WAC Cap CarryForward Amount not covered by amounts in the Excess
Reserve Fund Account;
(iv) the Class Certificate Balance of each Class of Certificates
after giving effect to the distribution of principal on the Distribution
Date;
(v) the Pool Stated Principal Balance;
(vi) the amount of the Master Servicing Fees and Servicing Fees paid
to or retained by the Master Servicer or Subservicer (with respect to the
Subservicers, in the aggregate) with respect to the Distribution Date;
IV-4
(vii) the Pass-Through Rate for each Class of Certificates with
respect to the Distribution Date;
(viii) the amount of Advances included in the distribution on the
Distribution Date and the aggregate amount of Advances outstanding as of
the close of business on the Distribution Date;
(ix) the number and aggregate outstanding balance of 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;
(x) for each of the preceding 12 calendar months, or all
calendar months since the related Cut-off Date, whichever is less,
the aggregate dollar amount of the Scheduled Payments (A) due on all
Outstanding Mortgage Loans on each of the Due Dates in each such
month and (B) delinquent 60 days or more on each of the Due Dates in
each such month;
(xi) 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;
(xii) 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;
(xiii) whether a Trigger Event has occurred and is continuing
(including the calculation of thereof and the aggregate outstanding
balance of all 60+ Delinquent Loans)
(xiv) the amount on deposit in the Excess Reserve Fund Account
(after giving effect to distributions on the Distribution Date);
(xv) the aggregate amount of Applied Realized Loss Amounts
incurred during the preceding calendar month and aggregate Unpaid
Realized Loss Amounts through the Distribution Date;
(xvi) the amount of any Net Monthly Excess Cash Flow on the
Distribution Date and the allocation thereof to the
Certificateholders with respect to Unpaid Realized Loss Amounts and
Unpaid Interest Amounts;
IV-5
(xvii) with respect to the second Distribution Date, the number
and aggregate balance of any Delay Delivery Mortgage Loans not
delivered within the time periods specified in the definition of
Delay Delivery Mortgage Loans; and
(xviii) with respect to each Loan Group, the Subordinated
Amount and Required Subordinated Amount.
(xix) Prepayment Charges collected, waived and paid by Master
Servicer.
If the statement is not accessible to any of the Certificateholders, the
Master Servicer, the Depositor, or any Rating Agency on the Trustee's Internet
website, the Trustee shall forward a hard copy of it to each
Certificateholder, the Master Servicer, the Depositor, and each Rating Agency
immediately after the Trustee becomes aware that it is not accessible to any
of them via its website. The address of the Trustee's Internet website where
the statement will be accessible is
▇▇▇▇://▇▇▇-▇▇▇▇.▇▇▇.▇▇▇▇▇▇▇▇-▇▇▇▇.▇▇▇/▇▇▇▇. Assistance in using the Trustee's
Internet website may be obtained by calling the Trustee's customer service
desk at (▇▇▇) ▇▇▇-▇▇▇▇. The Trustee shall notify each Certificateholder, the
Master Servicer, the Depositor, and each Rating Agency in writing of any
change in the address or means of access to the internet website where the
statement is accessible.
(b) The Trustee's responsibility for disbursing the above information to
the Certificateholders is limited to the availability, timeliness, and
accuracy of the information derived from the Master Servicer. The Trustee is
not responsible for any inaccuracies in or caused by the data provided by the
Master Servicer.
By each Determination Date the Master 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 3.09(b)(ii) and any
other information that the Master Servicer and the Trustee mutually agree on.
(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), (a)(ii), and (a)(vii) of this Section
4.03 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.
IV-6
Section 4.04. [Reserved]
Section 4.05. [Reserved]
Section 4.06. [Reserved]
Section 4.07. Certain Matters Relating to the Determination of LIBOR.
Until all of the LIBOR Certificates are paid in full, the Trustee will at
all times retain at least four Reference Banks for the purpose of determining
LIBOR with respect to each Interest Determination Date. The Master Servicer
initially shall designate the Reference Banks. Each "Reference Bank" shall be
a leading bank engaged in transactions in Eurodollar deposits in the
international Eurocurrency market, shall not control, be controlled by, or be
under common control with, the Trustee and shall have an established place of
business in London. If any such Reference Bank should be unwilling or unable
to act as such or if the Master Servicer should terminate its appointment as
Reference Bank, the Master Servicer shall promptly appoint another Reference
Bank. The Trustee shall have no liability or responsibility to any Person for
(i) the selection of any Reference Bank for purposes of determining LIBOR or
(ii) any inability to retain at least four Reference Banks which is caused by
circumstances beyond its reasonable control.
The Pass-Through Rate for each Class of LIBOR Certificates for each
Interest Accrual Period shall be determined by the Trustee on each LIBOR
Determination Date so long as the LIBOR Certificates are outstanding on the
basis of LIBOR and the respective formulae appearing in footnotes
corresponding to the LIBOR Certificates in the table relating to the
Certificates in the Preliminary Statement. The Trustee shall not have any
liability or responsibility to any Person for its inability, following a
good-faith reasonable effort, to obtain quotations from the Reference Banks or
to determine the arithmetic mean referred to in the definition of LIBOR, all
as provided for in this Section 4.07 and the definition of LIBOR. The
establishment of LIBOR and each Pass-Through Rate for the LIBOR Certificates
by the Trustee shall (in the absence of manifest error) be final, conclusive
and binding upon each Holder of a Certificate and the Trustee.
IV-7
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 in the Preliminary Statement, 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 (i) such
Holder has so notified the Trustee at least five Business Days before the
related Record Date and (ii) such Holder shall hold (A) 100% of the Class
Certificate Balance of any Class of Certificates or (B) Certificates of any
Class with aggregate principal Denominations of not less than $1,000,000 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 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 to the Trustee on a continuous basis, an
adequate inventory of Certificates to facilitate transfers.
V-1
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,
countersign, 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 or his attorney duly
authorized in writing shall accompany every Certificate presented or
surrendered for registration of transfer or exchange.
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 said Act and any applicable state securities
laws. If a transfer is to be made in reliance on an exemption from the
Securities Act and any applicable state securities laws, to assure compliance
with the Securities Act and any applicable state securities laws, the
Certificateholder desiring to effect the transfer shall certify to the Trustee
in writing the facts surrounding the transfer in substantially the form set
forth in Exhibit J (the "Transferor Certificate") and either (i) deliver to
the Trustee a letter in substantially the form of Exhibit L (the "Rule 144A
Letter") or (ii) deliver to the Trustee 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 the Holder of a
Private Certificate, 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
V-2
exemption provided by Rule 144A. The Trustee and the Master 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 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 and the Depositor, the Seller, and the Master 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 or 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
L), to the effect that 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, nor a Person acting on behalf of any such plan or arrangement nor
using the assets of any such plan or arrangement to effect the transfer, or
(ii) if the ERISA-Restricted Certificate is a Private Certificate that has
been the subject of an ERISA-Qualifying Underwriting a Residual Certificate,
if the purchaser is an insurance company, a representation that the purchaser
is an insurance company that 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
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 and the Master
Servicer, which Opinion of Counsel shall not be an expense of the Trustee, the
Master Servicer or the Trust Fund, addressed to the Trustee, to the effect
that the purchase or holding of such ERISA-Restricted Certificate will not
result in the assets of the Trust Fund being deemed to be "plan assets" and
subject to the prohibited transaction provisions of ERISA and the Code and
will not subject the Trustee or the Master Servicer to any 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 Private Certificate or a Residual Certificate, if
the representation letter referred to in the preceding sentence is not
furnished, the representation 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 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
V-3
behalf of any such plan or arrangement or using the assets of any such plan or
arrangement, without the Opinion of Counsel, 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
V-4
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 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 Master Servicer, to the effect that the elimination of such
restrictions will not cause the Trust Fund hereunder 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 participating
firms as
V-5
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 participating firms and persons shown on the books of such
indirect participating firms 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.
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,
(y) the Depositor at its option advises the Trustee in writing that it
elects to terminate the book-entry system through the Depository or
(z) 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 Master 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 Master 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
V-6
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 Master 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
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 Master Servicer, the Trustee and any agent of the Master 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 Master Servicer, the Trustee nor any agent of the Master 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 (a) request such information in
writing from the Trustee, (b) state that such Certificateholders desire to
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates, and (c) provide a copy of the
communication which such Certificateholders propose to transmit, or if the
Depositor or Master 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 Master Servicer or such
Certificateholders at such recipients' expense the most recent list of the
Certificateholders of such Trust Fund held by the Trustee. The Depositor and
every Certificateholder, 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.
V-7
Section 5.06. Maintenance of Office or Agency.
The Trustee will maintain at its expense an office or offices or agency
or agencies in Manhattan, New York City. Currently, such office is located at
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attn: IN01C2, 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.
V-8
ARTICLE SIX
THE DEPOSITOR AND THE MASTER SERVICER
Section 6.01. Respective Liabilities of the Depositor
and the Master Servicer.
The Depositor and the Master Servicer shall each be liable in accordance
herewith only to the extent of the obligations specifically and respectively
imposed upon and undertaken by them herein.
Section 6.02. Merger or Consolidation of the
Depositor or the Master Servicer.
The Depositor and the Master Servicer will each keep in full effect its
existence, rights and franchises as a corporation or federal savings bank, as
the case may be, 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 Master Servicer may be merged
or consolidated, or any Person resulting from any merger or consolidation to
which the Depositor or the Master Servicer shall be a party, or any person
succeeding to the business of the Depositor or the Master Servicer, shall be
the successor of the Depositor or the Master 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 Master Servicer shall be qualified to sell mortgage loans to, and to
service mortgage loans on behalf of, FNMA or FHLMC.
Section 6.03. Limitation on Liability of the Depositor,
the Seller, the Master Servicer and Others.
None of the Depositor, the Seller, the Master Servicer or any of the
directors, officers, employees or agents of the Depositor, the Seller or the
Master 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 Master
Servicer or any such Person against any breach of representations or
warranties made by it herein or protect the Depositor, the Seller, the Master
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 Master Servicer and any
director, officer, employee or agent of the
VI-1
Depositor, the Seller or the Master 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
Master Servicer and any director, officer, employee or agent of the Depositor,
the Seller or the Master 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 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 Master Servicer shall be under any obligation to appear in,
prosecute or defend any legal action that is not incidental to its respective
duties hereunder and which in its opinion may involve it in any expense or
liability; provided, however, that any of the Depositor, the Seller or the
Master Servicer may in its discretion undertake any such action that it may
deem appropriate in respect of this Agreement and the rights and duties of the
parties hereto and interests of the Trustee and the Certificateholders
hereunder. In such event, the legal expenses and costs of such action and any
liability resulting therefrom shall be expenses, costs and liabilities of the
Trust Fund, and the Depositor, the Seller and the Master Servicer shall be
entitled to be reimbursed therefor out of the Certificate Account.
Section 6.04. Limitation on Resignation of the Master Servicer.
The Master 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 of the rating of
any of the Certificates or (b) upon determination that its duties hereunder
are no longer permissible under applicable law. Any such determination under
clause (b) permitting the resignation of the Master 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
Master Servicer shall have assumed the Master Servicer's responsibilities,
duties, liabilities and obligations hereunder.
VI-2
ARTICLE SEVEN
DEFAULT
Section 7.01. Events of Default.
"Event of Default," wherever used herein, means any one of the following
events:
(a) any failure by the Master Servicer to deposit in the Certificate
Account or remit to the Trustee any payment (other than a payment required to
be made under Section 4.01) 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 Master Servicer by the
Trustee or the Depositor or to the Master 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 Master Servicer to observe or perform in any
material respect any other of the covenants or agreements on the part of the
Master Servicer contained in this Agreement, 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 Master Servicer by the Trustee or the Depositor, or to the Master
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 Master
Servicer and such decree or order shall have remained in force undischarged or
unstayed for a period of 60 consecutive days; or
(d) the Master 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 Master
Servicer or all or substantially all of the property of the Master Servicer;
or
(e) the Master 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.
VII-1
If an Event of Default described in clauses (a) through (e) of this
Section 7.01 shall occur, 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
662/3% of the Percentage Interests of the Class, the Trustee shall by notice
in writing to the Master Servicer (with a copy to each Rating Agency),
terminate all of the rights and obligations of the Master Servicer under this
Agreement and in the Mortgage Loans and the proceeds thereof, other than its
rights as a Certificateholder hereunder. On and after the receipt by the
Master Servicer of such written notice, all authority and power of the Master
Servicer hereunder, whether with respect to the Mortgage Loans or otherwise,
shall pass to and be vested in the Trustee. The Trustee shall make any Advance
that the Master Servicer failed to make, whether or not the obligations of the
Master Servicer have been terminated pursuant to this Section. The Trustee is
hereby authorized and empowered to execute and deliver, on behalf of the
Master Servicer, as attorney-in-fact or otherwise, any documents and other
instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise. Unless expressly provided in such written
notice, no such termination shall affect any obligation of the Master Servicer
to pay amounts owed pursuant to Article VIII. The Master Servicer agrees to
cooperate with the Trustee in effecting the termination of the Master
Servicer's responsibilities and rights hereunder, including the transfer to
the Trustee of all cash amounts which shall at the time be credited to the
Certificate Account, or thereafter be received with respect to the Mortgage
Loans.
Notwithstanding any termination of the activities of the Master Servicer
hereunder, the Master 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 Master Servicer's rights and obligations as Master
Servicer hereunder and received after such notice, that portion thereof to
which such Master Servicer would have been entitled pursuant to Sections
3.11(a)(i) through (viii), and any other amounts payable to such Master
Servicer hereunder the entitlement to which arose before the termination of
its activities hereunder.
Section 7.02. Trustee to Act; Appointment of Successor.
On and after the time the Master 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 Master Servicer in
its capacity as Master 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 Master 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 Master Servicer
would have been entitled to charge to the Certificate Account or Distribution
Account if the Master Servicer had continued to act hereunder including, if
the Master Servicer was
VII-2
receiving the Servicing Fee, the Servicing Fee. Notwithstanding the foregoing,
if the Trustee has become the successor to the Master 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 Master Servicer hereunder in the assumption of all or any
part of the responsibilities, duties or liabilities of the Master Servicer
hereunder. Any successor to the Master 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 Master Servicer (other than liabilities of the Master
Servicer under Section 6.03 incurred before termination of the Master 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 Master Servicer
hereunder, the Trustee, unless the Trustee is prohibited by law from so
acting, shall, subject to Section 3.05, act in such capacity as hereinabove
provided. In connection with such appointment and assumption, the Trustee may
make such arrangements for the compensation of such successor out of payments
on Mortgage Loans as it and such successor shall agree. No such compensation
shall exceed the Master Servicing Fee Rate plus, if the Master Servicer was
receiving the Servicing Fee, 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 Master 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 Master Servicer to deliver or provide, or any delay in delivering or
providing, any cash, information, documents or records to it.
Any successor to the Master Servicer as Master Servicer shall give notice
to the Mortgagors of such change of servicer and shall, during the term of its
service as Master Servicer, maintain in force the policy or policies that the
Master Servicer is required to maintain pursuant to Section 6.05.
Section 7.03. Notification to Certificateholders.
(a) Upon any termination of or appointment of a successor to the Master
Servicer, the Trustee shall give prompt written notice thereof to
Certificateholders and to each Rating Agency.
VII-3
(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.
VII-4
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 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.
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.
VIII-1
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, 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;
(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; and
(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
VIII-2
security or indemnity satisfactory to the Trustee against the costs, expenses
and liabilities which may be incurred therein or thereby.
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 Master Servicer of any funds paid to the Depositor or the
Master Servicer in respect of the Mortgage Loans or deposited in or withdrawn
from the Certificate Account by the Depositor or the Master 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 Master Servicer).
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, the Trustee may
withdraw from the Distribution Account on each Distribution Date the Trustee
Fee for the Distribution Date. The Trustee and any director, officer,
employee, or agent of the Trustee shall be indemnified by the Seller against
any loss, liability, or expense (including reasonable attorney's fees)
resulting from any error in any tax or information return prepared by the
Master Servicer or incurred in connection with any claim or legal action
relating to
(a) this Agreement,
(b) the primary mortgage guaranty insurance acquired by the Trust Fund
from PMI,
(c) the Certificates, or
(d) 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 under this Agreement. This
VIII-3
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 Seller 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,
(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, and
(C) printing and engraving expenses in connection with preparing any
Definitive Certificates.
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
Master Servicer and its affiliates; provided, however, that such entity cannot
be an affiliate of the Seller, the Depositor or the Master Servicer other than
the Trustee in its role as successor to the Master 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
Master Servicer, each Rating Agency not less than 60 days before the date
specified in such notice, when, subject to Section 8.08,
VIII-4
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.
If at any time 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, or if at any time 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, or a tax is imposed with respect
to the Trust Fund by any state in which the Trustee or the Trust Fund is
located and the imposition of such tax would be avoided by the appointment of
a different trustee, then the Depositor or the Master Servicer 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 Master
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 Master Servicer, one complete set to
the Trustee so removed and one complete set to the successor so appointed. 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 Master 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 Master 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.
VIII-5
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.
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 Master 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
Master Servicer and the Trustee may consider appropriate. If the Master
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 Master 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
VIII-6
(whether as Trustee hereunder or as successor to the Master Servicer
hereunder), the Trustee 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 Master 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 Master 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 any REMIC election
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 any the REMIC and that in such capacity it shall:
VIII-7
(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) 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 any 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;
(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 of REMIC 1 and REMIC 2 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 calculation of any original issue
discount using the Prepayment Assumption (as defined in the Prospectus
Supplement);
(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
Non-Permitted Transferee, or a pass-through entity in which a Non-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 a REMIC 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;
(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 the 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;
VIII-8
(j) maintain records relating to the REMIC, 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 the REMIC 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 the REMIC, enter into settlement agreements with any
governmental taxing agency, extend any statute of limitations relating to any
tax item of the REMIC, and otherwise act on behalf of the 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. Moreover, the Depositor
shall provide information to the Trustee concerning the value to each Class of
Certificates of the right to receive Net WAC Cap CarryForward Amounts from the
Excess Reserve Fund. 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" of the REMIC as
defined in Section 860F(a)(2) of the Code, on the "net income from foreclosure
property" of the REMIC as defined in Section 860G(c) of the Code, on any
contribution to the REMIC after the Startup Day pursuant to Section 860G(d) of
the Code, or any other tax is imposed, including any minimum tax imposed on
the REMIC 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 such tax or any 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 Master 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 Master Servicer or Seller of any of their obligations under this
Agreement, (iii) the Seller if 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 Master 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).
VIII-9
Section 8.12. Periodic Filings.
Beginning with the first Distribution Date, the Trustee shall prepare,
execute and file all periodic reports required under the Securities Exchange
Act of 1934 in conformity with the terms of the relief granted to issuers
similar to the Trust Fund. In connection with the preparation and filing of
such periodic reports, the Depositor and the Master Servicer shall timely
provide to the Trustee all material information available to them which is
required to be included in such reports and not known to them to be in the
possession of the Trustee and such other information as the Trustee reasonably
may request from either of them and otherwise reasonably shall cooperate with
the Trustee. The Trustee shall have no liability with respect to any failure
to properly prepare or 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 8.13. [Reserved]
Section 8.14. Tax Classification of the Excess Reserve
Fund Account
For federal income tax purposes, the Trustee shall treat the Excess
Reserve Fund Account as an outside reserve fund, within the meaning of
Treasury Regulation ss. 1.860G-2(h), that is beneficially owned by the holder
of the Class X Certificate. The Trustee shall treat the rights that each Class
of Certificates has to receive payments of Net WAC Cap CarryForward Amounts
from the Excess Reserve Fund Account as rights to receive payments under an
interest rate cap contract written by the Class X Certificateholder in favor
of each Class. Accordingly, each Class of Certificates will comprise two
components - an Upper Tier Regular Interest and an interest in a cap contract.
The Trustee shall allocate the issue price for a Class of Certificates between
two components for purposes of determining the issue price of the Upper Tier
Regular Interest component.
VIII-10
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 Master Servicer and the Trustee created hereby with respect to
the Trust Fund shall terminate upon the earlier of
(a) the purchase by the Master 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 REO Property) plus one month's accrued interest
thereon at the applicable Adjusted Mortgage Rate and
(ii) the lesser of (x) the appraised value of any REO Property as
determined by the higher of two appraisals completed by two independent
appraisers selected by the Master Servicer at the expense of the Master
Servicer and (y) the Stated Principal Balance of each Mortgage Loan
related to any REO Property, in each case plus accrued and unpaid
interest thereon at the applicable Adjusted Net Mortgage Rate and (b) the
later of
(i) the maturity or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan remaining in the Trust Fund 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 hereof or the Latest Possible Maturity Date (as defined in
the Preliminary Statement).
The right to repurchase all Mortgage Loans and REO Properties pursuant to
clause (a) above shall be conditioned upon the aggregate Stated Principal
Balance of the Mortgage Loans, at the time of any such repurchase, aggregating
ten percent or less of the aggregate Cut-off Date Principal Balance of the
Mortgage Loans.
Section 9.02. Final Distribution on the Certificates.
If on any Determination Date, the Master 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 Master Servicer
shall direct the Trustee promptly to send a final distribution notice to each
Certificateholder. If the Master Servicer elects to terminate the Trust
IX-1
Fund pursuant to clause (a) of Section 9.01, at least 20 days before the date
notice is to be mailed to the affected Certificateholders the Master Servicer
shall notify the Depositor and the Trustee of the date the Master 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 10th day
and not later than the 15th 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 Master Servicer will give
such notice to each Rating Agency at the time such notice is given to
Certificateholders.
If the notice is given, the Master 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 Master 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 (except the Class X Certificate), its Certificate
Balance plus for each such Class and the Class X Certificate accrued interest
thereon in the case of an interest-bearing Certificate and (ii) as to the
Residual Certificates, any amount remaining on deposit in the Distribution
Account (other than the amounts retained to meet claims) after application
pursuant to clause (i) above.
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
IX-2
part of the Trust Fund. If within one year after the second notice all
Certificates shall not have been surrendered for cancellation, the Class 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 Master 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 Master 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 either REMIC as defined in Section 860F
of the Code, or (ii) cause either the Lower Tier REMIC or the Upper Tier REMIC
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
Master Servicer, and, within 90 days of such sale, shall distribute to the
Certificateholders the proceeds of such sale in complete liquidation of each
of the Lower Tier REMIC and the Upper Tier REMIC.
(c) The Trustee shall attach a statement to the final federal income tax
return for each of the Lower Tier REMIC and the Upper Tier REMIC stating that
pursuant to Treasury Regulation ss. 1.860F-1, the first day of the 90-day
liquidation period for each the REMIC was the date on which the Trustee sold
the assets of the Trust Fund to the Master Servicer.
IX-3
ARTICLE TEN
MISCELLANEOUS PROVISIONS
Section 10.01. Amendment.
This Agreement may be amended from time to time by the Depositor, the
Master 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 herein or to supplement any
provision herein which may be inconsistent with any other provision herein,
(iii) to add to the duties of the Depositor, the Seller or the Master
Servicer,
(iv) to add any other provisions with respect to matters or questions
arising hereunder, or
(v) to modify, alter, amend, add to, or rescind any of the terms or
provisions contained in this Agreement.
No action pursuant to clauses (iv) or (v) 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 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.
The Trustee, the Depositor, and the Master 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 the Lower Tier REMIC and the Upper Tier
REMIC under the Code,
(ii) avoid or minimize the risk of the imposition of any tax on the Lower
Tier REMIC or the Upper Tier REMIC 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 those purposes.
X-1
This Agreement may also be amended from time to time by the Depositor,
the Master Servicer and the Trustee with the consent of the Holders of
Certificates of Certificates evidencing Percentage Interests aggregating not
less than 6-62/3% of each Class of Certificates 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. 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,
(ii) adversely affect in any material respect the interests of the
Holders of any Class of Certificates in a manner other than as described in
(i), without the consent of the Holders of Certificates of the Class
evidencing, as to the Class, Percentage Interests aggregating not less than
6-62/3%,
(iii) amend, modify, add to, rescind, or alter in any respect Section
10.12, notwithstanding any contrary provision of this Agreement, without the
consent of the Holders of Certificates evidencing Percentage Interests
aggregating not less than 6-62/3%, and for this purpose no Certificates held by
the Seller, the Depositor, or any Affiliate of either of them shall be
eligible to vote or be considered Outstanding, or
(iv) 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 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 or the Certificateholders or
cause any REMIC to fail to qualify as a REMIC at any time that any
Certificates are outstanding.
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
X-2
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 Master 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.
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 Uniform Commercial Code of the State of New York 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
X-3
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 Master 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 payment to Certificateholders.
In addition, the Trustee shall promptly furnish to each Rating Agency
copies of the following:
1. Each report to Certificateholders described in Section 4.03;
2. Each annual statement as to compliance described in Section 3.17;
3. Each annual independent public accountants' servicing report described
in Section 3.18; 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 ABS, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: Secondary Marketing Department, (b) in the case of the
Master Servicer, IndyMac Bank, F.S.B., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Secondary Marketing Department or such other
address as may be hereafter furnished to the Depositor and the Trustee by the
Master Servicer in writing, (c) in the case of the Trustee to the Corporate
Trust Office, Bankers Trust Company of California, N.A., ▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Mortgage Administration
IN01C2, Series SPMD 2001-B, or such other address as the Trustee may hereafter
furnish to the Depositor or Master 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.
X-4
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 herein, except as
provided in Section 6.02, this Agreement may not be assigned by the Master
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 hereby, 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 hereto or any of them.
No Certificateholder shall have any right to vote (except as provided
herein) or in any manner otherwise control the operation and management of the
Trust Fund, or the obligations of the parties hereto, 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 hereof.
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
herein provided, 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
X-5
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.
Section 10.09. Inspection and Audit Rights.
The Master Servicer agrees that, on reasonable prior notice, it will
permit any representative of the Depositor or the Trustee during such Person's
normal business hours, to examine all the books of account, records, reports
and other papers of such Person 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 Master 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 Master Servicer.
Section 10.10. Certificates Nonassessable and Fully Paid.
It is the intention of the Depositor that Certificate holders 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.
Section 10.12. Qualifying Special Purpose Entity.
Notwithstanding any other provision to the contrary the Trust shall not
engage in any activity that would disqualify the Trust from being a qualifying
special purpose entity under generally accepted accounting principles.
* * * * * *
X-6
IN WITNESS WHEREOF, the Depositor, the Trustee, and the Seller and Master
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 ABS, INC.
as Depositor
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.
as Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Associate
INDYMAC BANK, F.S.B.
as Seller and Master Servicer
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President
SCHEDULE I
Mortgage Loan Schedule
[Delivered at Closing to Trustee]
S-I-1
SCHEDULE II
Home Equity Mortgage Loan Asset-Backed Certificates,
Series SPMD 2001-B
Representations and Warranties of the Seller/Master 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, or if so specified herein, as of the Cut-off Date.
Capitalized terms used but not otherwise defined in this Schedule II shall
have the meanings ascribed thereto in the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement") relating to the above-referenced Series,
among IndyMac, as seller and Master Servicer, IndyMac ABS, Inc., as depositor,
and Bankers Trust Company of California, N.A., 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
S-II-1
and Servicing Agreement, the consummation of any other of the
transactions contemplated by the Pooling and Servicing Agreement, and the
fulfillment of or compliance with the terms thereof are in the ordinary
course of business of IndyMac and will not (A) result in a material
breach of any term or provision of the charter or by-laws of IndyMac or
(B) materially conflict with, result in a material breach, violation or
acceleration of, or result in a material default under, any other
material agreement or instrument to which IndyMac is a party or by which
it may be bound, or (C) constitute a material violation of any statute,
order or regulation applicable to IndyMac of any court, regulatory body,
administrative agency or governmental body having jurisdiction over
IndyMac (including the Office of Thrift Supervision, 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 Office of Thrift Supervision, 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) Each Servicer 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.
S-II-2
SCHEDULE III
Home Equity Mortgage Loan Asset-Backed Certificates,
Series SPMD 2001-B
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 Subsequent Transfer Date, as applicable, or if so
specified herein, as of the related Cut-off Date or date of origination of the
Mortgage Loan (as applicable). Capitalized terms used but not otherwise
defined in this Schedule III shall have the meanings ascribed thereto in the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement")
relating to the above-referenced Series, among IndyMac, as seller and Master
Servicer, IndyMac ABS, Inc., as depositor, and Bankers Trust Company of
California, N.A., 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 or Subsequent
Transfer Date, as applicable.
(2) As of the Closing Date, all regularly scheduled monthly payments
due with respect to each Mortgage Loan up to and including the Due Date
before the related Cut-off Date have been made; and as of the related
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
related Cut-off Date.
(3) With respect to any Mortgage Loan that is not a Cooperative
Loan, each Mortgage is a valid and enforceable first or second 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.
S-III-1
(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.
(7) There are no mechanics' liens or claims for work, labor or
material affecting any Mortgaged Property which are or may be a lien
before, 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) To the best of the Seller's knowledge, 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 state and federal laws, including usury, equal
credit opportunity, real estate settlement procedures, truth-in-lending,
HOEPA, and disclosure laws, or any noncompliance does not have a material
adverse effect on the value of the related Mortgage Loan.
(10) As of the Closing Date or Subsequent Transfer Date, as
applicable, 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
the Mortgage Loan or a commitment (binder) to issue the same was
effective on the date of the origination of each Mortgage Loan, each such
policy is valid and remains in full force and effect.
S-III-2
(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.
(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.
S-III-3
(19) At the related 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 Master
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 at
least as long as the term of the related Mortgage Loan.
(25) Each Mortgage Loan was selected from among the outstanding one- to
four-family sub-prime mortgage loans in the Seller's sub-prime
mortgage 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) No more than 1.60% (by aggregate Stated Principal Balance) of the
Mortgage Loans are Cooperative Loans.
S-III-4
(27) Each Cooperative Loan is secured by a valid, subsisting and
enforceable perfected first and second liens (in the case of Loan
Group 1) and first liens only (in the case of Loan Group 2) and
security interest in the related Mortgaged Property, subject only to
(i) the rights of the Cooperative Corporation to collect maintenance
and assessments from the Mortgagor, (ii) the lien of the Blanket
Mortgage on the Cooperative Property and of real property taxes, water
and sewer charges, rents and assessments on the Cooperative Property
not yet due and payable, and (iii) other matters to which like
Cooperative Units are commonly subject which do not materially
interfere with the benefits of the security intended to be provided by
the Security Agreement or the use, enjoyment, value or marketability
of the Cooperative Unit. Each original UCC financing statement,
continuation statement or other governmental filing or recordation
necessary to create or preserve the perfection and priority of the
first priority lien and security interest in the Cooperative Shares
and Proprietary Lease has been timely and properly made. Any security
agreement, chattel mortgage or equivalent document related to the
Cooperative Loan and delivered to the sponsor or its designee
establishes in the Seller a valid and subsisting perfected first or
second lien (in the case of a Cooperative Loan that is in Loan Group
1) and first lien only (in the case of a (Cooperative Loan that is in
Loan Group 2) on and security interest in the property described
therein, and the Seller has full right to sell and assign the same.
(28) Each Cooperative Corporation qualifies as a "cooperative housing
corporation" as defined in Section 216 of the Code.
S-III-5
SCHEDULE IV
PLANNED BALANCE SCHEDULES
[Not applicable]
S-IV-1
EXHIBIT A
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO
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 CLASS OF CERTIFICATES CONSISTS OF SUBORDINATED SECURITIES AND THEY
WILL NOT SATISFY THE REQUIREMENTS OF CERTAIN PROHIBITED TRANSACTION
EXEMPTIONS. AS A RESULT, THE PURCHASE OR HOLDING OF ANY OF THIS CLASS OF
CERTIFICATES BY A PLAN INVESTOR MAY CONSTITUTE A NON-EXEMPT PROHIBITED
TRANSACTION OR RESULT IN THE IMPOSITION OF EXCISE TAXES OR CIVIL PENALTIES
UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA") OR THE CODE. ACCORDINGLY, NONE OF THIS CLASS OF CERTIFICATES ARE
OFFERED FOR SALE, AND ARE NOT TRANSFERABLE, TO PLAN INVESTORS UNLESS AN
EXEMPTION FROM THE PROHIBITED TRANSACTION RULES OF ERISA AND THE CODE APPLIES
TO THE ACQUISITION, HOLDING, AND RESALE OF SUCH CERTIFICATE. EACH PURCHASER OF
THIS CLASS OF CERTIFICATE, BY VIRTUE OF ITS PURCHASE OF SUCH CERTIFICATE, WILL
BE DEEMED TO HAVE REPRESENTED EITHER THAT IT IS NOT A PLAN INVESTOR OR THAT
CERTAIN EXEMPTIONS FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE
CODE APPLY TO THE PLAN INVESTOR'S ACQUISITION, HOLDING, AND RESALE OF SUCH
CERTIFICATES.]
Certificate No. : [ ]
Cut-off Date : June 1, 2001
First Distribution Date : July 25, 2001
Initial Certificate Balance
of this Certificate
("Denomination") : $[ ]
Initial Certificate Balances
of all Certificates
of this Class : $[ ]
CUSIP : [ ]
INDYMAC ABS, INC.
Home Equity Mortgage Loan Asset-Backed Trust
Home Equity Mortgage Loan Asset-Backed Certificates, Series SPMD 2001-B
Class [ ]
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class.
Principal in respect of this Certificate is 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 Master Servicer or the Trustee referred to below or
any of their respective affiliates. Neither this Certificate nor the Mortgage
Loans are guaranteed or insured by any governmental agency or instrumentality.
This certifies that [ ] is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination
of this Certificate by the aggregate of the denominations of all Certificates
of the Class to which this Certificate belongs) in certain monthly
distributions pursuant to a Pooling and Servicing Agreement dated as of the
Cut-off Date specified above (the "Agreement") among IndyMac ABS, Inc., as
depositor (the "Depositor"), IndyMac, Inc., as seller (in such capacity, the
"Seller") and as master servicer (in such capacity, the "Master Servicer"),
and Bankers Trust Company of California, N.A., 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.
[The Class [ ] Certificates are subordinated securities and they will not
satisfy the requirements of certain prohibited transaction exemptions. As a
result, the purchase or holding of any of the Class MF-1 Certificates by a
plan investor may constitute a non-exempt prohibited transaction or result in
the imposition of excise taxes or civil penalties under the Employee
Retirement Income Security Act of 1974, as amended ("ERISA") or the Code.
Accordingly, none of the Class MF-1 Certificates are offered for
A-2
sale, and are not transferable, to plan investors unless an exemption from the
prohibited transaction rules of ERISA and the Code applies to the acquisition,
holding, and resale of such certificate. Each purchaser of a Class MF-1
Certificate, by virtue of its purchase of such Certificate, will be deemed to
have represented either that it is not a plan investor or that certain
exemptions from the prohibited transaction provisions of ERISA and the Code
apply to the plan investor's acquisition, holding, and resale of such
Certificates.]
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: [ ], 200[ ]
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.,
not in its individual Capacity, but
solely as Trustee
By ______________________
Countersigned:
By ___________________________
Authorized Signatory of
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.,
not in its individual Capacity,
but solely as Trustee
A-4
EXHIBIT B
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 DELIVERS TO THE TRUSTEE EITHER A REPRESENTATION LETTER TO THE
EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR A PLAN SUBJECT
TO SECTION 4975 OF THE CODE, OR AN OPINION OF COUNSEL IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING ELSE
TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON
BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO THE CODE WITHOUT THE
REPRESENTATION LETTER OR THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS
DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
Certificate No. : [ ]
Cut-off Date : June 1, 2001
First Distribution Date : July 25, 2001
Percentage Interest
of this Certificate
("Denomination") : [ ]%
CUSIP :
INDYMAC ABS, INC.
Home Equity Mortgage Loan Asset-Backed Trust,
Home Equity Mortgage Loan Asset-Backed Certificates, Series SPMD 2001-B
Class P
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class payable solely from
Prepayment Charges.
Distributions in respect of this Certificate are distributable monthly as
set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Seller, the Master
Servicer or the Trustee referred to below or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or
insured by any governmental agency or instrumentality.
This certifies that [ ]. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the Class to which this Certificate belongs) in certain
monthly distributions pursuant to a Pooling and Servicing Agreement dated as
of the Cut-off Date specified above (the "Agreement") among IndyMac ABS, Inc.,
as depositor (the "Depositor"), IndyMac, Inc., as seller (in such capacity,
the "Seller") and as master servicer (in such capacity, the "Master
Servicer"), and Bankers Trust Company of California, N.A., as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound. This Certificate represents
an interest in the Trust, but does not represent an interest in any REMIC.
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 and solely payable from Prepayment Charges. 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 subject to Section 406 of ERISA or Section 4975 of the
Code, nor a person acting on behalf of any such plan, which representation
letter shall not be an expense of the Trustee, or (ii) if the purchaser is an
insurance company, 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
B-2
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 PTCE
95-60, or (iii) in the case of a 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 and
the Master Servicer, which Opinion of Counsel shall not be an expense of the
Trustee, the Master Servicer or the Trust Fund, addressed to the Trustee, to
the effect that the purchase or holding of such Certificate will not result in
the assets of the Trust Fund being deemed to be "plan assets" and subject to
the prohibited transaction provisions of ERISA and the Code and will not
subject the Trustee or the Master Servicer to any obligation in addition to
those expressly undertaken in this Agreement or to any liability.
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-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: [ ], 200[ ]
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.
not in its individual capacity,
but solely as Trustee
By ____________________________
Countersigned:
By ___________________________
Authorized Signatory of
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.
not in its individual capacity,
but solely as Trustee
B-4
EXHIBIT C
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 DELIVERS TO THE TRUSTEE EITHER A REPRESENTATION LETTER
TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR A PLAN
SUBJECT TO SECTION 4975 OF THE CODE, OR, IF THE PURCHASER IS AN INSURANCE
COMPANY, A REPRESENTATION IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT
REFERRED TO HEREIN OR AN OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS
OF THE AGREEMENT REFERRED TO HEREIN. IN THE EVENT THAT SUCH REPRESENTATION IS
VIOLATED, OR ANY ATTEMPT 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 SUCH OPINION OF COUNSEL, SUCH ATTEMPTED
TRANSFER OR ACQUISITION SHALL BE VOID AND OF NO EFFECT.
Certificate No. : [ ]
Cut-off Date : June 1, 2001
Initial Certificate Balance
of this Certificate
("Denomination") : $[ ]
Initial Certificate Balances
of all Certificates of
this Class : $[ ]
CUSIP :
INDYMAC ABS, INC.
Home Equity Mortgage Loan Asset-Backed Trust,
Home Equity Mortgage Loan Asset-Backed Certificates, Series SPMD 2001-B
Class R
evidencing the distributions allocable to the Class R Certificates
with respect to a Trust Fund consisting primarily of a pool of
fixed-rate and adjustable-rate conventional loans (the "Mortgage
Loans") secured by first liens on one- to four-family residential
properties IndyMac ABS, Inc., as Depositor
Principal in respect of this Certificate is 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 Master 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 all Certificates of the Class to
which this Certificate belongs) in certain monthly distributions pursuant to a
Pooling and Servicing Agreement dated as of the Cut-off Date specified above
(the "Agreement") among IndyMac ABS, Inc., as depositor (the "Depositor"),
IndyMac, Inc., as seller (in such capacity, the "Seller") and as master
servicer (in such capacity, the "Master Servicer"), and Bankers Trust Company
of California, N.A., 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 R
Certificate at the Corporate Trust Office or the office or agency maintained
by the Trustee in New York, New York.
No transfer of a Class 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 satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan or
arrangement subject to Section 406 of ERISA, nor a plan or arrangement subject
to Section 4975 of the Code or a person acting on behalf of any such plan or
arrangement nor using the assets of any such plan or arrangement to effect
such transfer, which representation letter shall not be an expense of the
Trustee, the Master Servicer or the Trust Fund, (ii) if the purchaser is an
insurance company, 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 PTCE 95-60 or
(iii) in the case of any such Class R Certificate presented for registration
in
C-2
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 arrangement 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 and the Master Servicer to the effect that the purchase or holding of
such Class R Certificate will not result in the assets of the Trust Fund being
deemed to be "plan assets" and subject to the prohibited transaction
provisions of ERISA and the Code and will not subject the Trustee or the
Master Servicer to any obligation in addition to those expressly undertaken in
the Agreement or to any liability, which Opinion of Counsel shall not be an
expense of the Trustee, the Master Servicer or the Trust Fund. In the event
that such representation is violated, or any attempt 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 such Opinion of
Counsel, such attempted transfer or acquisition shall be void and of no
effect.
(i) Each Holder of this Class R Certificate shall be deemed by the
acceptance or acquisition an Ownership Interest in this Class R
Certificate to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in this Class
R Certificate are expressly subject to the following provisions: (i) each
Person holding or acquiring any Ownership Interest in this Class R
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 this Class R Certificate may be
registered on the Closing Date or thereafter transferred, and the Trustee
shall not register the Transfer of this Certificate unless, in addition
to the certificates required to be delivered to the Trustee under Section
5.02(b) of the Agreement, the Trustee shall have been furnished with a
Transfer Affidavit of the initial owner or the proposed transferee in the
form attached as Exhibit I to the Agreement, (iii) each Person holding or
acquiring any Ownership Interest in this Class R Certificate shall agree
(A) to obtain a Transfer Affidavit from any other Person to whom such
Person attempts to Transfer its Ownership Interest this Class R
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 this Class R Certificate and (C) not to Transfer the
Ownership Interest in this Class R Certificate or to cause the Transfer
of the Ownership Interest in this Class R Certificate to any other Person
if it has actual knowledge that such Person is not a Permitted Transferee
and (iv) any attempted or purported Transfer of the Ownership Interest in
this Class R Certificate in violation of the provisions herein shall be
absolutely null and void and shall 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: [ ], 200[ ]
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A.,
not in its individual Capacity, but
solely as Trustee
By ______________________
Countersigned:
By ___________________________
Authorized Signatory of
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.,
not in its individual Capacity,
but solely as Trustee
C-4
EXHIBIT D
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").
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 DELIVERS TO THE TRUSTEE EITHER A REPRESENTATION LETTER TO THE
EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR A PLAN SUBJECT
TO SECTION 4975 OF THE CODE, OR AN OPINION OF COUNSEL IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING ELSE
TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON
BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO THE CODE WITHOUT THE
REPRESENTATION LETTER OR THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS
DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
Certificate No. : [ ]
Cut-off Date : June 1, 2001
First Distribution Date : July 25, 2001
Percentage Interest
of this Certificate
("Denomination") : [ ]%
CUSIP :
INDYMAC ABS, INC.
Home Equity Mortgage Loan Asset-Backed Trust,
Home Equity Mortgage Loan Asset-Backed Certificates, Series SPMD 2001-B
Class X
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class.
Distributions in respect of this Certificate are distributable monthly as
set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Seller, the Master
Servicer or the Trustee referred to below or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or
insured by any governmental agency or instrumentality.
This certifies that [ ] is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the Class to which this Certificate belongs) in certain
monthly distributions pursuant to a Pooling and Servicing Agreement dated as
of the Cut-off Date specified above (the "Agreement") among IndyMac ABS, Inc.,
as depositor (the "Depositor"), IndyMac, Inc., as seller (in such capacity,
the "Seller") and as master servicer (in such capacity, the "Master
Servicer"), and Bankers Trust Company of California, N.A., as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
This Certificate does not have a 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 subject to Section 406 of ERISA or Section 4975 of the
Code, nor a person acting on behalf of any such plan, which representation
letter shall not be an expense of the Trustee, or (ii) if the purchaser is an
insurance company, a representation that the purchaser is an insurance company
which is purchasing such
D-2
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 PTCE 95-60, or (iii) in the case of a
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 and the Master Servicer, which Opinion of Counsel
shall not be an expense of the Trustee, the Master Servicer or the Trust Fund,
addressed to the Trustee, to the effect that the purchase or holding of such
Certificate will not result in the assets of the Trust Fund being deemed to be
"plan assets" and subject to the prohibited transaction provisions of ERISA
and the Code and will not subject the Trustee or the Master Servicer to any
obligation in addition to those expressly undertaken in this Agreement or to
any liability.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
* * *
D-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: [ ], 200[ ]
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A.,
not in its individual Capacity, but
solely as Trustee
By ______________________
Countersigned:
By ___________________________
Authorized Signatory of
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.,
not in its individual Capacity,
but solely as Trustee
D-4
EXHIBIT E
INDYMAC ABS, INC.
Home Equity Mortgage Loan Asset-Backed Trust,
Home Equity Mortgage Loan Asset-Backed Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as IndyMac ABS, Inc., Home Equity Mortgage Loan Asset-Backed
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 Master 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 office or agency maintained by the Trustee in New York, New
York, 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 Master 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 or equal to 10% of the aggregate Cut-off
Date Principal Balances of the Mortgage Loans, the Master 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. The obligations and
responsibilities created by the Agreement will terminate as provided in
Section 9.01 of 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
E-3
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.
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]
E-4
EXHIBIT F
[RESERVED]
F-1
EXHIBIT G
FORM OF INITIAL CERTIFICATION OF TRUSTEE
[date]
[Depositor]
[Master Servicer]
[Seller]
___________________
___________________
Re: Pooling and Servicing Agreement among IndyMac ABS, Inc.,
as Depositor, IndyMac Bank, F.S.B., as Seller and Master
Servicer, and Bankers Trust Company of California, N.A.,
as Trustee, Home Equity Mortgage Loan Asset-Backed Trust,
Series SPMD 2001-B, Home Equity Mortgage Loan Asset-Backed
Certificates, Series SPMD 2001-B [and the Subsequent
Transfer Agreement dated as of [______ __], 2001, among
IndyMac ABS, Inc., as Depositor, IndyMac Bank, F.S.B., as
Seller, and Bankers Trust Company of California, N.A., as
Trustee]
-----------------------------------------------------------
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), [and the
above-captioned Subsequent Transfer Agreement] the undersigned, as Trustee,
hereby certifies that, as to each [Initial][Subsequent] Mortgage Loan listed
in the Mortgage Loan Schedule (other than any [Initial][Subsequent] 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 related
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 related to such
[Initial][Subsequent] Mortgage Loan.
G-1
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
[Initial][Subsequent] Mortgage Loans identified on the Mortgage Loan Schedule,
or (ii) the collectability, insurability, effectiveness, or suitability of any
such [Initial][Subsequent] Mortgage Loan.
Capitalized words and phrases used herein have the respective meanings
assigned to them in the Pooling and Servicing Agreement.
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.
as Trustee
By:
-------------------------------------
Name:
---------------------------------
Title:
-----------------------------------
G-2
EXHIBIT G-1
FORM OF DELAY DELIVERY CERTIFICATION
[date]
[Depositor]
[Master Servicer]
Re: Pooling and Servicing Agreement among IndyMac ABS, Inc.,
as Depositor, IndyMac Bank, F.S.B., as Seller and Master
Servicer, and Bankers Trust Company of California, N.A.,
as Trustee, Home Equity Mortgage Loan Asset-Backed Trust,
Series SPMD 2001-B, Home Equity Mortgage Loan Asset-Backed
Certificates, Series SPMD 2001-B [and the Subsequent
Transfer Agreement dated as of [_______ __], 2001, among
IndyMac ABS, Inc., as Depositor, IndyMac Bank, F.S.B., as
Seller, and Bankers Trust Company of California, N.A., as
Trustee]
-----------------------------------------------------------
Gentlemen:
[Reference is made to the Initial Certification of Trustee relating to
the above-referenced series, with the schedule of exceptions attached thereto,
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
undersigned hereby certifies that [, with respect to the Subsequent Mortgage
Loans delivered in connection with the Subsequent Transfer Agreement,] as to
each Delay Delivery Mortgage Loan listed on the Schedule A attached hereto
(other than any [Initial Mortgage Loan][Subsequent Mortgage Loan] paid in full
or listed on Schedule B attached hereto) it has received:
(i) (A) 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 such endorsement being sufficient to
transfer all interest of the party so endorsing, as noteholder
or assignee thereof, in that Mortgage Note) and (B) with
respect to any Lost Mortgage Note, a lost note affidavit from
the Seller stating that the original Mortgage Note was lost or
destroyed, together with a copy of such Mortgage Note;
(ii) 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 such mortgage (each such
G-3
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 the assignment
relates); provided that such 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.
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face and related to the
Mortgage Loan.
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 [Initial Mortgage Loans][Subsequent 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 [Initial Mortgage Loan][Subsequent Mortgage Loan].
Capitalized words and phrases used herein have the respective meanings
assigned to them in the above-captioned Pooling and Servicing Agreement.
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.
as Trustee
By:_________________________
Name:
Title:
G-4
EXHIBIT H
FORM OF FINAL CERTIFICATION OF TRUSTEE
[date]
[Depositor]
[Master Servicer]
[Seller]
__________________
__________________
Re: Pooling and Servicing Agreement among IndyMac ABS, Inc.,
as Depositor, IndyMac Bank, F.S.B., as Seller and Master
Servicer, and Bankers Trust Company of California, N.A.,
as Trustee, Home Equity Mortgage Loan Asset-Backed Trust,
Series SPMD 2001-B, Home Equity Mortgage Loan Asset-Backed
Certificates, Series SPMD 2001-B [and the Subsequent
Transfer Agreement dated as of [_______ __], 2001, among
IndyMac ABS, Inc., as Depositor, IndyMac Bank, F.S.B., as
Seller, and Bankers Trust Company of California, N.A., as
Trustee]
-----------------------------------------------------------
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement") [and the
above-captioned Subsequent Transfer Agreement], the undersigned, as Trustee,
hereby certifies that as to each [Initial][Subsequent] Mortgage Loan listed in
the Mortgage Loan Schedule (other than any [Initial][Subsequent] 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(f) 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(f) of the Pooling and Servicing Agreement; provided, however,
that it has received no assignment with respect to any Mortgage for which the
related Mortgaged Property is located in the Commonwealth of Puerto Rico, or,
if the Depositor has certified or the Trustee otherwise knows that the related
Mortgage has not been returned from the applicable recording office, a
H-1
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
[Initial][Subsequent] Mortgage Loan, and (b) the information set forth in
items (i), (ii), (iii), (iv), (vi), (xi), and (xiv) 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
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 [Initial][Subsequent]
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 interest of the party so endorsing,
as Noteholder or assignee thereof, in 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.
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.
as Trustee
By:
-------------------------------------
Name:
----------------------------------
Title:
-----------------------------------
H-2
EXHIBIT I
TRANSFER AFFIDAVIT
IndyMac ABS, Inc.,
Home Equity Mortgage Loan Asset-Backed Trust, Series SPMD 2001-B
Home Equity Mortgage Loan Asset-Backed Certificates,
Series SPMD 2001-B
STATE OF )
) 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 R Certificate (the
"Certificate") issued pursuant to the Pooling and Servicing Agreement, (the
"Agreement"), relating to the above-referenced Series, by and among IndyMac
ABS, Inc., as depositor (the "Depositor"), IndyMac Bank, F.S.B., as seller and
Master Servicer and Bankers Trust Company of California, N.A., as Trustee.
Capitalized terms used, but not defined herein or in Exhibit 1 , 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. The Transferee has
no knowledge that any such affidavit is false.
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 Transferee furnishes to such Person an affidavit that such
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
I-1
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 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 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 Section 5.02(c) 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 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. 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 investing plan assets of such a
plan, or (ii) 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 the purchase and holding of such Certificate are
covered under Sections I and III of PTCE 95-60.
I-2
* * *
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by
its duly authorized officer and its corporate seal to be hereunto affixed,
duly attested, this ____ day of __________________, 20__.
_______________________________________
Print Name of Transferee
By: __________________________________
Name:
Title:
[Corporate Seal]
ATTEST:
____________________________________
[Assistant] Secretary
Personally appeared before me the above-named ____________, known or
proved to me to be the same person who executed the foregoing instrument and
to be the ______________ of the Transferee, and acknowledged that he executed
the same as his free act and deed and the free act and deed of the Transferee.
Subscribed and sworn before me this ____ day of ________ , 20__.
________________________________________
NOTARY PUBLIC
My Commission expires the ____ day of
__________, 20__
I-3
EXHIBIT 1
to EXHIBIT I
Certain Definitions
"Ownership Interest": As to any Certificate, any ownership interest in
the Certificate, including any interest in the Certificate as its Holder and
any other interest in it, 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) which 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
Class R Certificate, (iv) rural electric and telephone cooperatives described
in Code Section 1381(a)(2)(c), (v) a Person that is not a U.S. Person, and
(vi) any other Person so designated by the Trustee based upon an Opinion of
Counsel that the Transfer of an Ownership Interest in a Class R Certificate to
such Person may cause the Trust Fund to fail to qualify as a REMIC at any time
that certain Certificates are Outstanding. The terms "United States," "State,"
and "International Organization" have the meanings 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, 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.
"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; (v) a trust, if a
court within the
I-4
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; or (vi) to the extent provided in Treasury
regulations, certain trusts in existence on August 20, 1996 that are treated
as U.S. Persons before that date and that elect to continue to be treated as
U.S. Persons.
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 the
Residual Certificates 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 the
Residual Certificates 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 the Residual Certificates may be
registered on the Closing Date or thereafter transferred, and the Trustee
shall not register the Transfer of any Residual Certificates 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 void. 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
obligated to recover from any Holder of a Residual Certificate that was
in fact not a Permitted Transferee at the time it became a
I-6
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.
I-7
EXHIBIT J
FORM OF TRANSFEROR CERTIFICATE
__________, 20__
IndyMac ABS, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Bankers Trust Company of California, N.A.
▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: : [___________]
Series SPMD 2001-B
Re: IndyMac ABS, Inc. Home Equity Loan Asset-Backed Trust, Series
SPMD 2001-B, Home Equity Mortgage Loan Asset-Backed
Certificates, Series SPMD 2001-B, 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 Residual
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
[RESERVED]
K-1
EXHIBIT L
FORM OF RULE 144A LETTER
____________, 20__
IndyMac ABS, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Bankers Trust Company of California, N.A.
▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: : [___________]
Series SPMD 2001-B
Re: Home Equity Mortgage Loan Asset-Backed Trust, Series SPMD
2001-B Home Equity Mortgage Loan Asset-Backed
Certificates, Series SPMD 2001-B, 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) 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 nor using the assets of any such plan or arrangement to effect
such acquisition, (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 Securities Act
or that would render the disposition of the Certificates a violation of
Section 5
L-1
of the Securities 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) to the extent that the
Certificate transferred is a Class X Certificate, we are a bankruptcy-remote
entity and (g) we are a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act and have completed either of the
forms of certification to that effect attached hereto as Annex 1 or Annex 2.
We are aware that the sale to us is being made in reliance on Rule 144A. We
are acquiring the Certificates for our own account or for resale pursuant to
Rule 144A and further, understand that such Certificates may be resold,
pledged or transferred only (i) 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 (ii)
pursuant to another exemption from registration under the Securities Act.
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 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)
------------
(1) Buyer must own or invest on a discretionary basis at least $100,000,000
in securities unless Buyer is a dealer, and, in that case, Buyer must own or
invest on a discretionary basis at least $10,000,000 in securities.
L-3
has an audited net worth of at least $25,000,000 as demonstrated
in its latest annual financial statements, a copy of which is
attached hereto.
___ Broker-dealer. The Buyer is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934.
___ Insurance Company. The Buyer is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a State,
territory or the District of Columbia.
___ 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 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
L-4
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.
-----------------------------------------------
Print Name of Transferor
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, 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
L-6
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.
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 or Adviser
By:
------------------------------------------
Name:
Title:
IF AN ADVISER:
-----------------------------------------------
Print Name of Buyer
Date:
-------------------------------------
L-7
EXHIBIT M
REQUEST FOR RELEASE
(for Trustee)
IndyMac ABS, Inc.,
Home Equity Mortgage Loan Asset-Backed Trust, Series SPMD 2001-B
Home Equity Mortgage Loan Asset-Backed Certificates,
Series SPMD 2001-B
Loan Information
Name of Mortgagor
---------------------------------------
Servicer
Loan No.:
---------------------------------------
Trustee
Name:
---------------------------------------
Address:
---------------------------------------
---------------------------------------
---------------------------------------
Trustee
Mortgage File No.:
---------------------------------------
The undersigned Master Servicer hereby acknowledges that it has
received from Bankers Trust Company of California, N.A., as Trustee for the
Holders of Home Equity Mortgage Loan Asset-Backed 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 Master Servicer and
IndyMac ABS, Inc., as Depositor.
(__) Mortgage Note dated ____________, ____, 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
M-1
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
________________.
(__) Other documents, including any amendments, assignments or other
assumptions of the Mortgage Note or Mortgage.
(__) _______________________________________________________________
(__) _______________________________________________________________
(__) _______________________________________________________________
(__) _______________________________________________________________
The undersigned Master Servicer hereby acknowledges and agrees as
follows:
(1) The Master 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 Master 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 Master 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.
M-2
(4) The Documents and any proceeds thereof, including any
proceeds of proceeds, coming into the possession or control of the
Master Servicer shall at all times be earmarked for the account of the
Trustee, and the Master Servicer shall keep the Documents and any
proceeds separate and distinct from all other property in the Master
Servicer's possession, custody or control.
INDYMAC BANK, F.S.B.
By:
--------------------------------
Its
--------------------------------
Date: ________________
M-3
EXHIBIT N
REQUEST FOR RELEASE OF DOCUMENTS
To: Bankers Trust Company of California, N.A. Attn: [____________]
Re: The Pooling & Servicing Agreement dated _______ among
IndyMac Bank, F.S.B., as Master Servicer, Inc, IndyMac
ABS, Inc. and Bankers Trust Company of California, N.A.
as Trustee
Ladies and Gentlemen:
In connection with the administration of the Mortgage Loans held by
you as Trustee for IndyMac ABS, Inc., we request the release of the Mortgage
Loan File for the Mortgage Loans 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
ACKNOWLEDGMENT OF RECEIPT
By:______________________________
Name:
Title:
Date:___________________
N-2
EXHIBIT O
[RESERVED]
Q-1
EXHIBIT Q
FORM OF SUBSEQUENT TRANSFER AGREEMENT
Subsequent Transfer Agreement, dated as of March [__], 2001, among
IndyMac ABS, Inc., a Delaware corporation, as depositor (the "Depositor"),
IndyMac Bank, F.S.B., a federal savings bank ("IndyMac Bank"), in its capacity
as seller under the Pooling and Servicing Agreement referred to below (the
"Seller"), and Bankers Trust Company of California, N.A., as trustee (the
"Trustee").
WITNESSETH:
WHEREAS, the Depositor, IndyMac Bank (in its capacity as Seller and in
its capacity as Master Servicer) and the Trustee are parties to the pooling
and servicing agreement dated as of June 1, 2001 (the "Pooling and Servicing
Agreement") relating to the Home Equity Mortgage Loan Asset-Backed
Certificates, Series SPMD 2001-B; and
WHEREAS, as contemplated in the Pooling and Servicing Agreement, the
Seller desires to convey certain Subsequent Mortgage Loans to the Depositor,
and the Depositor desires to simultaneously convey the Subsequent Mortgage
Loans to the Trustee for the benefit of the Certificateholders;
NOW, THEREFORE, the parties hereto hereby agree as follows:
Section 1.01. Defined Terms.
Capitalized terms used herein that are not otherwise defined have the
meanings given to them in Pooling and Servicing Agreement.
"Agreement" means this Subsequent Transfer Agreement and all
amendments hereof and supplements hereto.
"Subsequent Mortgage Loans" means the Mortgage Loans identified on the
Mortgage Loan Schedule specified in Section 1.02.
"Subsequent Transfer Date" means, with respect to this Agreement,
March [__], 2000.
"Cut-off Date" means, with respect to each of the Subsequent Mortgage
Loans, the later of March 1, 2001 and its date of origination.
Section 1.02. Mortgage Loan Schedule.
Annexed hereto is a supplement to Schedule I to the Pooling and
Servicing Agreement listing the Subsequent Mortgage Loans to be conveyed by
the Seller to the Depositor and simultaneously by the Depositor to the Trustee
pursuant to the Pooling and Servicing Agreement and this Agreement on the
Subsequent Transfer Date.
Q-1
Section 1.03. Conveyance of Subsequent Mortgage Loans by the Seller.
Subject to the conditions set forth in Section 1.05 and Section 1.06, in
consideration of the Trustee's delivery to or upon the order of the Seller of
$________ (i.e., an amount not greater than the aggregate Cut-off Date
Principal Balance of the Subsequent Mortgage Loans), the Seller does hereby
sell, transfer, assign and otherwise convey to the Depositor, without recourse
(subject to the Seller's obligations hereunder) all of the Seller's interest
in the Subsequent Mortgage Loans, including all interest and principal
received or receivable by the Seller on or with respect to each Subsequent
Mortgage Loan after the related Cut-off Date and all interest and principal
payments on each Subsequent Mortgage Loan received before such related Cut-off
Date in respect of installments of interest and principal due thereafter, but
not including payments of principal and interest due and payable on each
Subsequent Mortgage Loan by such related Cut-off Date, and the Depositor
simultaneously does hereby sell, transfer, assign, set over and otherwise
convey to the Trustee for the benefit of the Certificateholders, without
recourse, all the interest of the Depositor in each Subsequent Mortgage Loan,
including all interest and principal received or receivable by the Depositor
on or with respect to each Subsequent Mortgage Loan after the related Cut-off
Date and all interest and principal payments on each Subsequent Mortgage Loan
received before such related Cut-off Date in respect of installments of
interest and principal due thereafter, but not including payments of principal
and interest due and payable on each Subsequent Mortgage Loan by such related
Cut-off Date.
Section 1.04. Allocation of the Amounts to be Released from the Pre-Funding
Account.
Of the $________ (i.e., an amount not greater than the aggregate
Cut-off Date Principal Balance of the Subsequent Mortgage Loans), released by
the Trustee pursuant to Section 1.03, the Trustee shall release $__________
(i.e., an amount not greater than the aggregate Cut-off Date Principal Balance
of the Subsequent Mortgage Loans transferred to Loan Group 1 pursuant to this
Agreement) from the Pre-Funding Account.
Section 1.05. Representations and Warranties of Seller.
The Seller does hereby reaffirm the representations and warranties set
forth in Section 2.03 and on Schedule II of the Pooling and Servicing
Agreement for the benefit of the Depositor and the Trustee as purchasers
hereunder are true with respect to the Subsequent Mortgage Loans. Such
representations and warranties shall survive the sale, transfer and assignment
of the Subsequent Mortgage Loans to the Depositor and the simultaneous sale,
transfer and assignment of such Subsequent Mortgage Loans to the Trustee.
Q-2
Section 1.06. Representations and Warranties of Depositor.
The Depositor does hereby reaffirm the representations and warranties
set forth in Section 2.04 of the Pooling and Servicing Agreement for the
benefit of the Trustee as purchaser hereunder are true with respect to the
Subsequent Mortgage Loans. Such representations and warranties shall survive
the sale, transfer and assignment of the Subsequent Mortgage Loans to the
Trustee.
Section 1.07. Conditions Precedent.
The obligation of the Trustee to acquire the Subsequent Mortgage Loans
hereunder is subject to the satisfaction, by the Subsequent Transfer Date, of
the conditions precedent identified in Section 2.09(b).
The Trustee shall not be required to investigate or otherwise verify
satisfaction of the conditions listed above, but shall be entitled to
conclusively rely upon Opinions of Counsel and Officer's Certificates
confirming such fulfillment.
Section 1.08. Reaffirmation of Agreement.
All terms, conditions and provisions of the Pooling and Servicing
Agreement are hereby reaffirmed and incorporated by reference by the Seller as
to the Subsequent Mortgage Loans.
Section 1.09. Governing Law.
This Agreement shall be construed in accordance with the laws of the
State of New York and the obligations, rights and remedies of the parties
under this Agreement shall be determined in accordance with such laws;
provided, however, the immunities, authority and standard of care of the
Trustee shall be governed by the jurisdiction in which its Corporate Trust
Office is located.
Q-3
IN WITNESS WHEREOF, the Seller and the Trustee have caused this
Agreement to be duly executed and delivered by their respective duly
authorized officers as of the day and the year first above written.
INDYMAC BANK, F.S.B.
as Seller
By: __________________________
Name:
Title:
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.
not in its individual capacity,
but solely as Trustee
By: __________________________
Name:
Title:
Q-4
[Supplement to Mortgage Loan Schedule]
Q-5