EXHIBIT 99.1
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The Pooling and Servicing Agreement.
Execution Copy
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INDYMAC MBS, INC.
Depositor
INDYMAC BANK, F.S.B.
Seller and Servicer
DEUTSCHE BANK NATIONAL TRUST COMPANY
Trustee
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POOLING AND SERVICING AGREEMENT
Dated as of February 1, 2007
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INDYMAC INDX MORTGAGE LOAN TRUST
2007-AR1
MORTGAGE PASS-THROUGH CERTIFICATES
Series 2007-AR1
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TABLE OF CONTENTS
Page
ARTICLE ONE DEFINITIONS...........................................................................................................9
Section 1.01 Definitions........................................................................................9
Section 1.02 Rules of Construction.............................................................................40
ARTICLE TWO CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES.........................................................42
Section 2.01 Conveyance of Mortgage Loans......................................................................42
Section 2.02 Acceptance by the Trustee of the Mortgage Loans...................................................45
Section 2.03 Representations, Warranties, and Covenants of the Seller and the Servicer.........................47
Section 2.04 Representations and Warranties of the Depositor as to the Mortgage Loans..........................49
Section 2.05 Delivery of Opinion of Counsel in Connection with Substitutions...................................49
Section 2.06 Execution and Delivery of Certificates............................................................50
Section 2.07 REMIC Matters.....................................................................................50
ARTICLE THREE ADMINISTRATION AND SERVICING OF MORTGAGE LOANS.....................................................................51
Section 3.01 Servicer to Service Mortgage Loans................................................................51
Section 3.02 [Reserved]........................................................................................52
Section 3.03 Rights of the Depositor and the Trustee in Respect of the Servicer................................52
Section 3.04 [Reserved]........................................................................................52
Section 3.05 Trustee to Act as Servicer........................................................................52
Section 3.06 Collection of Mortgage Loan Payments; Certificate Account; Distribution Account...................52
Section 3.07 Collection of Taxes, Assessments and Similar Items; Escrow Accounts...............................55
Section 3.08 Access to Certain Documentation and Information Regarding the Mortgage Loans......................55
Section 3.09 Permitted Withdrawals from the Certificate Account and the Distribution Account...................56
Section 3.10 Maintenance of Hazard Insurance; Maintenance of Primary Insurance Policies........................57
Section 3.11 Enforcement of Due-On-Sale Clauses; Assumption Agreements.........................................58
Section 3.12 Realization Upon Defaulted Mortgage Loans.........................................................59
Section 3.13 Trustee to Cooperate; Release of Mortgage Files...................................................61
Section 3.14 Documents, Records and Funds in Possession of the Servicer to be Held for the Trustee.............62
Section 3.15 Servicing Compensation............................................................................62
Section 3.16 Access to Certain Documentation...................................................................63
Section 3.17 Annual Statement as to Compliance.................................................................63
Section 3.18 Errors and Omissions Insurance; Fidelity Bonds....................................................63
Section 3.19 Notification of Adjustments.......................................................................63
Section 3.20 Prepayment Charges................................................................................64
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ARTICLE FOUR DISTRIBUTIONS AND ADVANCES BY THE SERVICER..........................................................................65
Section 4.01 Advances..........................................................................................65
Section 4.02 Priorities of Distribution........................................................................66
Section 4.03 Cross-Collateralization; Adjustments to Available Funds...........................................69
Section 4.04 [Reserved]........................................................................................70
Section 4.05 Allocation of Realized Losses.....................................................................70
Section 4.06 Monthly Statements to Certificateholders..........................................................71
ARTICLE FIVE THE CERTIFICATES....................................................................................................75
Section 5.01 The Certificates..................................................................................75
Section 5.02 Certificate Register; Registration of Transfer and Exchange of Certificates.......................75
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates.................................................79
Section 5.04 Persons Deemed Owners.............................................................................79
Section 5.05 Access to List of Certificateholders' Names and Addresses.........................................79
Section 5.06 Maintenance of Office or Agency...................................................................80
ARTICLE SIX THE DEPOSITOR AND THE SERVICER.......................................................................................81
Section 6.01 Respective Liabilities of the Depositor and the Servicer..........................................81
Section 6.02 Merger or Consolidation of the Depositor or the Servicer..........................................81
Section 6.03 Limitation on Liability of the Depositor, the Seller, the Servicer, and Others....................81
Section 6.04 Limitation on Resignation of the Servicer.........................................................82
ARTICLE SEVEN DEFAULT............................................................................................................83
Section 7.01 Events of Default.................................................................................83
Section 7.02 Trustee to Act; Appointment of Successor..........................................................84
Section 7.03 Notification to Certificateholders................................................................85
ARTICLE EIGHT CONCERNING THE TRUSTEE.............................................................................................87
Section 8.01 Duties of the Trustee.............................................................................87
Section 8.02 Certain Matters Affecting the Trustee.............................................................87
Section 8.03 Trustee Not Liable for Certificates or Mortgage Loans.............................................89
Section 8.04 Trustee May Own Certificates......................................................................89
Section 8.05 Trustee's Fees and Expenses.......................................................................89
Section 8.06 Eligibility Requirements for the Trustee..........................................................90
Section 8.07 Resignation and Removal of the Trustee............................................................90
Section 8.08 Successor Trustee.................................................................................91
Section 8.09 Merger or Consolidation of the Trustee............................................................92
Section 8.10 Appointment of Co-Trustee or Separate Trustee.....................................................92
Section 8.11 Tax Matters.......................................................................................93
ARTICLE NINE TERMINATION.........................................................................................................96
Section 9.01 Termination upon Liquidation or Purchase of the Mortgage Loans....................................96
Section 9.02 Final Distribution on the Certificates............................................................97
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Section 9.03 Additional Termination Requirements...............................................................98
ARTICLE TEN MISCELLANEOUS PROVISIONS.............................................................................................99
Section 10.01 Amendment.........................................................................................99
Section 10.02 Recordation of Agreement; Counterparts...........................................................100
Section 10.03 Governing Law....................................................................................101
Section 10.04 Intention of Parties.............................................................................101
Section 10.05 Notices..........................................................................................101
Section 10.06 Severability of Provisions.......................................................................102
Section 10.07 Assignment.......................................................................................102
Section 10.08 Limitation on Rights of Certificateholders.......................................................102
Section 10.09 Inspection and Audit Rights......................................................................103
Section 10.10 Certificates Nonassessable and Fully Paid........................................................103
Section 10.11 Official Record..................................................................................103
Section 10.12 Protection of Assets.............................................................................104
Section 10.13 Qualifying Special Purpose Entity................................................................104
ARTICLE ELEVEN EXCHANGE ACT REPORTING...........................................................................................104
Section 11.01 Filing Obligations...............................................................................104
Section 11.02 Form 10-D Filings................................................................................104
Section 11.03 Form 8-K Filings.................................................................................105
Section 11.04 Form 10-K Filings................................................................................106
Section 11.05 ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification.....................................................................108
Section 11.06 Form 15 Filing...................................................................................108
Section 11.07 Report on Assessment of Compliance and Attestation...............................................109
Section 11.08 Use of Subcontractors............................................................................110
Section 11.09 Amendments.......................................................................................110
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SCHEDULES
Schedule I: Mortgage Loan Schedule....................................................................................S-I-1
Schedule II: Representations and Warranties of the Seller/Servicer....................................................S-II-1
Schedule III: Representations and Warranties as to the Mortgage Loans.................................................S-III-1
Schedule IV: Reserved.................................................................................................S-IV-1
Schedule V: Form of Monthly Report....................................................................................S-V-1
EXHIBITS
Exhibit A: Form of Senior Certificate (excluding Notional Amount Certificates).........................................A-1
Exhibit B: Form of Subordinated Certificate............................................................................B-1
Exhibit C: Form of Class A-R Certificate...............................................................................C-1
Exhibit D: Form of Notional Amount Certificate.........................................................................D-1
Exhibit E Form of Reverse of Certificates.............................................................................E-1
Exhibit F: Form of Class P Certificates................................................................................F-1
Exhibit G-1: Form of Initial Certification of Trustee .................................................................G-1-1
Exhibit G-2: Form of Delay Delivery Certification......................................................................G-2-1
Exhibit H: Form of Final Certification of Trustee......................................................................H-1
Exhibit I: Form of Transfer Affidavit..................................................................................I-1
Exhibit J: Form of Transferor Certificate..............................................................................J-1
Exhibit K: Form of Investment Letter (Non-Rule 144A)...................................................................K-1
Exhibit L: Form of Rule 144A Letter....................................................................................L-1
Exhibit M: Form of Request for Release (for Trustee)...................................................................M-1
Exhibit N: Request for Release of Documents............................................................................N-1
Exhibit O-1: Form of Certification To Be Provided By The Depositor With Form 10-K........................................O-1
Exhibit O-2: Form of Trustee's Officer's Certificate.....................................................................O-2
Exhibit P: [Reserved]..................................................................................................P-1
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Exhibit Q: Reporting Responsibility....................................................................................Q-1
Exhibit R: Form of Performance Certification (Trustee).................................................................R-1
Exhibit S: Form of Servicing Criteria To Be Addressed in Assessment
of Compliance Statement.................................................................................S-1
Exhibit T: List of Item 1119 Parties...................................................................................T-1
Exhibit U: Form of ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification (Replacement of Servicer)..............................................U-1
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THIS POOLING AND SERVICING AGREEMENT, dated as of February 1, 2007, among
INDYMAC MBS, INC., a Delaware corporation, as depositor (the "Depositor"),
IndyMac Bank, F.S.B. ("IndyMac"), a federal savings bank, as seller (in that
capacity, the "Seller") and as servicer (in that capacity, the "Servicer"), and
Deutsche Bank National Trust Company, a national banking association, as trustee
(the "Trustee"),
W I T N E S S E T H T H A T
In consideration of the mutual agreements set forth in this Agreement, the
parties agree as follows:
P R E L I M I N A R Y S T A T E M E N T
The Depositor is the owner of the Trust Fund that is hereby conveyed to
the Trustee in return for the Certificates. As provided in this Agreement, the
Trustee shall elect that the Trust Fund (exclusive of any amounts in respect of
waived Prepayment Charges paid by the Servicer to the Class P-1 and Class P-2
Certificates, as applicable, pursuant to the second paragraph of Section 3.20)
be treated for federal income tax purposes as comprising three real estate
mortgage investment conduits (each, a "REMIC" or, in the alternative, "REMIC 1,"
"REMIC 2" and the "Master REMIC"). Each Certificate, other than the Class A-R
Certificate, will represent ownership of one or more regular interests in the
Master REMIC for purposes of the REMIC Provisions. The Class A-R represents
ownership of the sole class of residual interest in each REMIC created under
this Agreement. The Master REMIC will hold as assets the several classes of
uncertificated REMIC 2 Interests (other than the Class R-2 Interest). REMIC 2
will hold as assets the several classes of uncertificated REMIC 1 Interests
(other than the Class R-1 Interest). REMIC 1 will hold as assets all property of
the Trust Fund. Each REMIC 2 Interest (other than the Class R-2 Interest) is
hereby designated as a regular interest in REMIC 2. Each REMIC 1 Interest (other
than the Class R-1 Interest) is hereby designated as a regular interest in REMIC
1. The latest possible maturity date of all REMIC regular interests created in
this Agreement shall be the Latest Possible Maturity Date. All amounts in
respect of waived Prepayment Charges paid by the Servicer to the Class P-1 and
Class P-2 Certificates pursuant to the second paragraph of Section 3.20 will be
treated as paid directly by the Servicer to the Class P-1 and Class P-2
Certificates and not as paid by or through any REMIC created under this
Agreement.
REMIC 1
The REMIC 1 Regular Interests will have the initial principal balance,
Pass-Through Rates and corresponding Loan Groups as set forth in the following
table:
Initial Principal
Balance or Pass-Through Corresponding
REMIC 1 Interests Notional Amount Rate Loan Group
----------------- ------ ---- ----------
A-1 (0.9% of the Assumed Balance of Loan Group 1) (1) (2) 1
B-1 (0.1% of the Assumed Balance of Loan Group 1) (1) (2) 1
C-1 (Excess of Loan Group 1) (1) (2) 1
A-2 (0.9% of the Assumed Balance of Loan Group 2) (1) (2) 2
B-2 (0.1% of the Assumed Balance of Loan Group 2) (1) (2) 2
C-2 (Excess of Loan Group 2) (1) (2) 2
1
A-3 (0.9% of the Assumed Balance of Loan Group 3) (1) (2) 3
B-3 (0.1% of the Assumed Balance of Loan Group 3) (1) (2) 3
C-3 (Excess of Loan Group 3).. (1) (2) 3
1-P-1 $100 (3) N/A
1-P-2 $100 (3) N/A
1-$100 $100 (4) N/A
R-1 (5) (5) N/A
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(1) Each Class A Interest will have a principal balance initially equal to 0.9%
of the Assumed Balance of its corresponding Loan Group. Each Class B Interest
will have a principal balance initially equal to 0.1% of the the Assumed Balance
of its corresponding Loan Group. The initial principal balance of each Class C
Interest will equal the excess of the initial aggregate principal balance of its
corresponding Loan Group over the initial aggregate principal balances of the
Class A and Class B Interests (and of the Class 1-$100 Interest, in the case of
the Class C-1 Interest) corresponding to such Loan Group.
(2) The Weighted Average Adjusted Net Mortgage Rate of the corresponding Loan
Group.
(3) The Class 1-P-1 and Class 1-P-2 Interests will not bear interest. The Class
1-P-1 Interests will be entitled to 100% of any Hard Prepayment Charges paid on
the Mortgage Loans. The Class 1-P-2 Interests will be entitled to 100% of any
Soft Prepayment Charges paid on the Mortgage Loans.
(4) The Weighted Average Adjusted Net Mortgage Rate of Loan Group 1.
(5) The Class R-1 Interest is the sole class of residual interest in REMIC 1. It
has no principal balance and pays no principal or interest.
On each Distribution Date, the Available Funds shall be distributed with
respect to the REMIC 1 Interests in the following manner:
(1) Interest is to be distributed with respect to each REMIC 1 Interest
according to the formulas described above;
(2) Principal Amounts and Realized Losses will be allocated to make the Class
1-P and Class 1-$100 balance equal to the principal balances of the Class P and
Class A-R Certificates, respectively, for such Distribution Date.
(3) If Cross-Over Situation does not exist with respect to any Class of
Interests, then Principal Amounts and Realized Losses arising with respect to
each Loan Group will be allocated: first to cause the Loan Group's corresponding
Class A and Class B to equal, respectively, 0.9% of the Assumed Balance and 0.1%
of the Assumed Balance; and second to the Loan Group's corresponding Class C
Interest;
(4) If a Cross-Over Situation exists with respect to the Class A and Class B
Interests then:
(a) if the Calculation Rate in respect of the outstanding Class A and
Class B Interests is less than the Subordinate Pass-Through Rate,
Principal Relocation Payments will be made proportionately to the
outstanding Class A Interests prior to any other distributions of
principal from each such Loan Group; and
2
(b) if the Calculation Rate in respect of the outstanding Class A and
Class B Interests is greater than the Subordinate Pass-Through Rate,
Principal Relocation Payments will be made proportionately to the
outstanding Class B Interests prior to any other distributions of
principal from each such Loan Group.
In case of either (a) or (b), Principal Relocation Payments will be made so as
to cause the Calculation Rate in respect of the outstanding Class A and Class B
Interests to equal the Subordinate Pass-Through Rate. With respect to each Loan
Group, if (and to the extent that) the sum of (a) the principal payments
comprising the Principal Amount received during the Due Period and (b) the
Realized Losses on the Mortgage Loans in that Loan Group, are insufficient to
make the necessary reductions of principal on the Class A and Class B Interests,
then interest will be added to the Loan Group's other REMIC 1 Interests that are
not receiving Principal Relocation Payments, in proportion to their principal
balances.
(c) Unless otherwise required to achieve the Calculation Rate, the
outstanding aggregate Class A and Class B Interests for all Loan
Groups will not be reduced below 1% of the excess of (i) the
aggregate Stated Principal Balances of the Mortgage Loans as of the
end of any Due Period (reduced by any Principal Prepayments received
after the Due Period that are to be distributed on the Distribution
Date related to the Due Period)over (ii) the Certificate Balance of
the Senior Certificates (excluding the Class A-R Certificates) for
all Certificate Groups as of the related Distribution Date (after
taking into account distributions of principal on such Distribution
Date).
If (and to the extent that) the limitation in paragraph (c) prevents the
distribution of principal to the Class A and Class B Interests of a Loan Group,
and if the Loan Group's Class C Interest has already been reduced to zero, then
the excess principal from that Loan Group will be paid to the Class C Interests
of the other Loan Group, the aggregate Class A and Class B Interests of which
are less than 1% of the Assumed Balance. If the Mortgage Loans in the Loan Group
of the Class C Interest that receives such payment has a Weighted Average
Adjusted Net Mortgage Rate below the Weighted Average Adjusted Net Mortgage Rate
of the Loan Group making the payment, then the payment will be treated by the
REMIC 1 as a Realized Loss. Conversely, if the Loan Group of the Class C
Interest that receives such payment has a Weighted Average Adjusted Net Mortgage
Rate above the Weighted Average Adjusted Net Mortgage Rate of the Loan Group
making the payment, then the payment will be treated by the REMIC 1 as a
reimbursement for prior Realized Losses.
REMIC 2
The REMIC 2 Regular Interests will have the initial principal
balance, Pass-Through Rates and corresponding Loan Groups as set forth in the
following table:
Initial Principal Pass-Through Corresponding Class of
REMIC 2 Interests Balance Rate Certificates
----------------- ------- ----- ------------
Class 2-1-A-1 (1) Variable(2) Class 1-A-1, 1-A-X
Class 2-1-A-2 (1) Variable(2) Class 1-A-2
Class 2-2-A-1 (1) Variable(3) Class 2-A-1
Class 2-2-A-2 (1) Variable(3) Class 2-A-2
Class 2-3-A-1 (1) Variable(4) Class 3-A-1
Class 2-3-A-2 (1) Variable(4) Class 3-A-2
Class 2-$100 (1) (2) Class A-R
Class 2-B-1 (1) Variable(5) Class B-1
Class 2-B-2 (1) Variable(5) Class B-2
Class 2-B-3 (1) Variable(5) Class B-3
Class 2-B-4 (1) Variable(5) Class B-4
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Class 2-B-5 (1) Variable(5) Class B-5
Class 2-B-6 (1) Variable(5) Class B-6
Class 2-P-1 $100 (6) Class P-1
Class 2-P-2 $100 (6) Class P-2
Class R-2 (7) (7) N/A
(1) On each Distribution Date, Realized Losses and payments of principal will be
allocated to each REMIC 2 Regular Interest in the same amounts as they are
allocated to their Corresponding Class of Certificates (other than any Class
of Notional Amount Certificates, if applicable).
(2) These Interests will bear interest during each Interest Accrual Period for
any Distribution Date at a per annum rate equal to the Weighted Average
Adjusted Net Mortgage Rate of the Group 1 Mortgage Loans as of that
Distribution Date.
(3) These Interests will bear interest during each Interest Accrual Period for
any Distribution Date at a per annum rate equal the Weighted Average Adjusted
Net Mortgage Rate of the Group 2 Mortgage Loans as of that Distribution Date.
(4) These Interests will bear interest during each Interest Accrual Period for
any Distribution Date at a per annum rate equal the Weighted Average Adjusted
Net Mortgage Rate of the Group 3 Mortgage Loans as of that Distribution Date.
(5) The Pass-Through Rate for each such Class for each Interest Accrual Period
for any Distribution Date will be a per annum rate equal to the Calculation
Rate.
(6) The Class 2-P-1 and Class 2-P-2 Interests will not bear interest. The Class
2-P-1 Interests will be entitled to 100% of any Prepayment Charges paid on the
Class P-1 Certificates. The Class 2-P-2 Interests will be entitled to 100% of
any Prepayment Charges paid on the Class P-2 Certificates.
(7) The Class R-2 Interest is the sole class of residual interest in REMIC 2. It
has no principal balance and pays no principal or interest.
The Master REMIC
The following table sets forth characteristics of the Certificates,
together with the minimum denominations and integral multiples in excess thereof
in which such Classes shall be issuable (except that one Certificate of each
Class of Certificates may be issued in a different amount):
=========================== ============================ ===================== ======================= ==========================
Initial Class Certificate Pass-Through Integral Multiples in
Class Designation Balance Rate Minimum Denomination Excess of Minimum
--------------------------- ---------------------------- --------------------- ----------------------- --------------------------
Class 1-A-1 $ 300,000,000 Variable(1) $ 25,000 $1,000
--------------------------- ---------------------------- --------------------- ----------------------- --------------------------
Class 1-A-2 $ 14,142,000 Variable(2) $ 25,000 $1,000
--------------------------- ---------------------------- --------------------- ----------------------- --------------------------
Class 1-A-X (3) Variable (4) $ 25,000 (5) $1,000 (5)
--------------------------- ---------------------------- --------------------- ----------------------- --------------------------
Class 2-A-1 $ 177,507,000 Variable(6) $ 25,000 $1,000
--------------------------- ---------------------------- --------------------- ----------------------- --------------------------
Class 2-A-2 $ 16,780,000 Variable(6) $ 25,000 $1,000
--------------------------- ---------------------------- --------------------- ----------------------- --------------------------
Class 3-A-1 $ 136,767,000 Variable(7) $ 25,000 $1,000
--------------------------- ---------------------------- --------------------- ----------------------- --------------------------
Class 3-A-2 $ 12,929,000 Variable(7) $ 25,000 $1,000
--------------------------- ---------------------------- --------------------- ----------------------- --------------------------
Class A-R $ 100 (2) $ 100 N/A
=========================== ============================ ===================== ======================= ==========================
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=========================== ============================ ===================== ======================= ==========================
Class B-1 $ 20,734,000 Variable(8) $ 25,000 $1,000
--------------------------- ---------------------------- --------------------- ----------------------- --------------------------
Class B-2 $ 13,584,000 Variable(8) $ 25,000 $1,000
--------------------------- ---------------------------- --------------------- ----------------------- --------------------------
Class B-3 $ 8,222,000 Variable(8) $ 25,000 $1,000
--------------------------- ---------------------------- --------------------- ----------------------- --------------------------
Class B-4 $ 6,077,000 Variable(8) $ 100,000 $1,000
--------------------------- ---------------------------- --------------------- ----------------------- --------------------------
Class B-5 $ 5,005,000 Variable(8) $ 100,000 $1,000
--------------------------- ---------------------------- --------------------- ----------------------- --------------------------
Class B-6 $ 3,217,786 Variable(8) $ 100,000 $1,000
--------------------------- ---------------------------- --------------------- ----------------------- --------------------------
Class P-1 $ 100.00 0%(9) $ 100 N/A
--------------------------- ---------------------------- --------------------- ----------------------- --------------------------
Class P-2 $ 100.00 0%(10) $ 100 N/A
=========================== ============================ ===================== ======================= ==========================
(1) The Pass-Through Rate for the Class 1-A-1 Certificates for the Interest
Accrual Period related to any Distribution Date (A) up to and including the
Distribution Date in January 2012 will equal the lesser of (x) 6.13048% per
annum and (y) the Weighted Average Net Mortgage Rate of the Group 1 Mortgage
Loans and (B) any Distribution Date thereafter ,will be a per annum rate equal
to the Weighted Average Net Mortgage Rate of the Group 1 Mortgage Loans. The
Pass-Through Rate for the Class 1-A-1 Certificates for the Interest Accrual
Period related to the first Distribution Date is 6.13048% per annum.
(2) The Pass-Through Rate for the Class 1-A-2 and Class A-R Certificates for the
Interest Accrual Period related to each Distribution Date will equal the
Weighted Average Net Mortgage Rate of the Group 1 Mortgage Loans. The
Pass-Through Rate for the Class 1-A-2 and Class A-R Certificates for the
Interest Accrual Period related to the first Distribution Date is 6.22546% per
annum.
(3) The Class 1-A-X Certificates will be Notional Amount Certificates, will have
no Class Certificate Balance, will pay no principal and will be entitled to
distributions of interest on its Notional Amount (initially $300,000,000)
(4) The Pass-Through Rate for the Class 1-A-X Certificates for the Interest
Accrual Period related to any Distribution Date (x) up to and including the
Distribution Date in January 2012, will be the Weighted Average Net Mortgage
Rate of the Group 1 Mortgage Loans minus the Pass-Through Rate for the Class
1-A-1 Certificates, but not less than 0.00%, and (y) any Distribution Date
thereafter, will be 0.00%. The Pass-Through Rate for the Class 1-A-X
Certificates for the Interest Accrual Period related to the first Distribution
Date is 0.09498% per annum.
(5) Minimum denomination is based on the Notional Amount of the Class.
(6) The Pass-Through Rate for the Class 2-A-1 and Class 2-A-2 Certificates for
the Interest Accrual Period related to each Distribution Date will equal the
Weighted Average Net Mortgage Rate of the Group 2 Mortgage Loans. The
Pass-Through Rate for the Class 2-A-1 and Class 2-A-2 Certificates for the
Interest Accrual Period related to the first Distribution Date is 5.72705% per
annum.
(7) The Pass-Through Rate for the Class 3-A-1 and Class 3-A-2 Certificates for
the Interest Accrual Period related to each Distribution Date will equal the
Weighted Average Net Mortgage Rate of the Group 3 Mortgage Loans. The
Pass-Through Rate for the Class 3-A-1 and Class 3-A-2 Certificates for the
Interest Accrual Period related to the first Distribution Date is 6.00694% per
annum.
(8) The Pass-Through Rate for each Class of Subordinated Certificates for each
Interest Accrual Period for any Distribution Date will be a per annum rate
equal to the Subordinate Pass-Through Rate. The Pass-Through Rate for the
Subordinated Certificates for the Interest Accrual Period related to the first
Distribution Date is 6.02862% per annum. For federal income tax purposes, the
Pass-Through Rate for each Class of Subordinated Certificates will be the
Calculation Rate.
5
(9) The Class P-1 Certificates will not be entitled to any interest, but will be
entitled to 100% of any Hard Prepayment Charges collected on the Mortgage
Loans. All amounts in respect of waived Hard Prepayment Charges paid by the
Servicer to the Class P-1 Certificates pursuant to the second paragraph of
Section 3.20 will be treated as paid directly by the Servicer to the Class P-1
Certificates and not as paid by or through any REMIC created under this
Agreement.
(10) The Class P-2 Certificates will not be entitled to any interest, but will
be entitled to 100% of any Soft Prepayment Charges paid on the Mortgage Loans.
All amounts in respect of waived Soft Prepayment Charges paid by the Servicer
to the Class P-2 Certificates pursuant to the second paragraph of Section 3.20
will be treated as paid directly by the Servicer to the Class P-2 Certificates
and not as paid by or through any REMIC created under this Agreement.
The foregoing REMIC structure is intended to cause all of the cash from
the Mortgage Loans to flow through to the Master REMIC as cash flow on a REMIC
regular interest, without creating any shortfall--actual or potential (other
than for credit losses) to any REMIC regular interest.
For any purpose for which the Pass-Through Rates is calculated, the
interest rate on the Mortgage Loans shall be appropriately adjusted to account
for the difference between the monthly day count convention of the Mortgage
Loans and the monthly day count convention of the regular interests issued by
each of the REMICs. For purposes of calculating the Pass-Through Rates for each
of the interests issued by REMIC 1 and the Master REMIC such rates shall be
adjusted to equal a monthly day count convention based on a 30 day month for
each Due Period and a 360-day year so that the Mortgage Loans and all regular
interests will be using the same monthly day count convention.
Set forth below are designations of Classes of Certificates to the categories
used in this Agreement:
Accretion Directed Certificates.................................... None.
Accrual Certificates............................................... None.
Book-Entry Certificates............................................ All Classes of Certificates other than the Physical
Certificates.
Class P Certificates............................................... Class P-1 and Class P-2 Certificates.
COFI Certificates.................................................. None.
Components......................................................... None.
Component Certificates............................................. None.
Delay Certificates................................................. All interest-bearing Classes of Certificates other than any
Non-Delay Certificates.
ERISA-Restricted Certificates,..................................... The Residual Certificates and the Private Certificates;
the Retained Certificates until they have been the
subject of an ERISA-Qualifying Underwriting; and
Certificates that cease to have a rating of BBB- (or
its equivalent), or better, from at least one Rating
Agency.
6
Group 1 Senior Certificates........................................ Class 1-A-1, Class 1-A-2, Class 1-A-X and Class A-R
Certificates.
Group 1 Certificates............................................... Group 1 Senior Certificates and the portion of the
Subordinated Certificates related to Loan Group 1.
Group 2 Senior Certificates........................................ Class 2-A-1 and Class 2-A-2 Certificates.
Group 2 Certificates............................................... Group 2 Senior Certificates and the portion of the
Subordinated Certificates related to Loan Group 2.
Group 3 Senior Certificates........................................ Class 3-A-1 and Class 3-A-2 Certificates.
Group 3 Certificates............................................... Group 3 Senior Certificates and the portion of the
Subordinated Certificates related to Loan Group 3.
LIBOR Certificates................................................. None.
Non-Delay Certificates............................................. LIBOR Certificates.
Notional Amount Certificates....................................... Class 1-A-X Certificates.
Notional Amount Components......................................... None.
Offered Certificates............................................... All Classes of Certificates other than the Private
Certificates.
Physical Certificates.............................................. Class A-R Certificates and the Private Certificates.
Planned Principal Classes.......................................... None.
Principal Only Certificates........................................ None.
Private Certificates............................................... Class P-1, Class P-2, Class B-4, Class B-5 and Class B-6
Certificates.
Rating Agencies.................................................... ▇▇▇▇▇'▇ and S&P.
Regular Certificates............................................... All Classes of Certificates other than the Class A-R
Certificates.
Residual Certificate............................................... Class A-R Certificates.
Retained Certificates.............................................. None.
7
Senior Certificates................................................ Class 1-A-1, Class 1-A-2, Class 1-A-X, Class 2-A-1, Class
2-A-2, Class 3-A-1, Class 3-A-2 and Class A-R Certificates.
Senior Certificate Group........................................... The Group 1 Senior Certificates, the Group 2 Senior
Certificates and the Group 3 Senior Certificates, as
applicable.
Subordinated Certificates.......................................... Class B-1, Class B-2, Class B-3, Class B-4, Class B-5 and
Class B-6 Certificates.
Targeted Principal Classes......................................... None.
Targeted Principal Component....................................... None.
With respect to any of the foregoing designations as to which the
corresponding reference is "None," all defined terms and provisions in this
Agreement relating solely to such designations shall be of no force or effect,
and any calculations in this Agreement incorporating references to such
designations shall be interpreted without reference to such designations and
amounts. Defined terms and provisions in this Agreement relating to statistical
rating agencies not designated above as Rating Agencies shall be of no force or
effect.
8
ARTICLE ONE
DEFINITIONS
Section 1.01 Definitions.
Unless the context requires a different meaning, capitalized terms are
used in this Agreement as defined below.
Accretion Directed Certificates: As specified in the Preliminary
Statement.
Accretion Direction Rule: Not applicable.
Accrual Amount: Not applicable.
Accrual Certificates: As specified in the Preliminary Statement.
Accrual Termination Date: Not applicable.
Additional Designated Information: As defined in Section 11.02.
Adjusted Mortgage Rate: As to each Mortgage Loan and at any time, the per
annum rate equal to the Mortgage Rate less the Servicing Fee Rate.
Adjusted Net Mortgage Rate: As to each Mortgage Loan and any Distribution
Date, the per annum rate equal to the Mortgage Rate of that Mortgage Loan (as of
the Due Date in the month preceding the month in which such Distribution Date
occurs) less the Expense Fee Rate for that Mortgage Loan.
Adjustment Date: A date specified in each Mortgage Note as a date on which
the Mortgage Rate on the related Mortgage Loan is subject to adjustment.
Advance: As to a Loan Group, the payment required to be made by the
Servicer with respect to any Distribution Date pursuant to Section 4.01, the
amount of any such payment being equal to the aggregate of payments of principal
and interest (net of the Servicing Fee) on the Mortgage Loans in such Loan Group
that were due during the related Due Period and not received as of the close of
business on the related Determination Date, together with an amount equivalent
to interest on each REO Property, net of any net income from such REO Property,
less the aggregate amount of any such delinquent payments that the Servicer has
determined would constitute a Nonrecoverable Advance if advanced.
Advance Notice: As defined in Section 4.01(b).
Advance Deficiency: As defined in Section 4.01(b).
Affiliate: With respect to any Person, any other Person controlling,
controlled or under common control with such Person. For purposes of this
definition, "control" means the power to direct the management and policies of a
Person, directly or indirectly, whether through ownership of voting securities,
by contract, or otherwise and "controlling" and "controlled" shall have meanings
correlative to the foregoing. Affiliates also include any entities consolidated
with the requirements of generally accepted accounting principles.
Aggregate Subordinated Percentage: With respect to any Distribution Date,
the fraction, expressed as a percentage, the numerator of which is equal to the
aggregate Class Certificate Balance of
9
the Subordinated Certificates immediately prior to such Distribution Date and
the denominator of which is the aggregate Stated Principal Balance of all the
Mortgage Loans as of the Due Date in the month preceding the month of such
Distribution Date (after giving effect to Principal Prepayments received in the
Prepayment Period related to that prior Due Date).
Agreement: This Pooling and Servicing Agreement and all amendments and
supplements.
Allocable Share: As to any Distribution Date and Class of Certificates,
the ratio that the amount calculated with respect to such Distribution Date (A)
with respect to the Senior Certificates of the related Senior Certificate Group,
pursuant to clause (i) of the definition of Class Optimal Interest Distribution
Amount (without giving effect to any reduction of such amount pursuant to
Section 4.02 (d)) and (B) with respect to the Subordinated Certificates,
pursuant to the definition of Assumed Interest Amount or after the second Senior
Termination Date pursuant to clause (i) of the definition of Class Optimal
Interest Distribution Amount (without giving effect to any reduction of such
amount pursuant to Section 4.02(d)) bears to the amount calculated with respect
to such Distribution Date for each Class of Certificates pursuant to clause (i)
of the definition of Class Optimal Interest Distribution Amount (without giving
effect to any reduction of such amount pursuant to Section 4.02(d)) or the
definition of Assumed Interest Amount for such Loan Group and Class, as
applicable.
Amount Available for Senior Principal: As to any Distribution Date and
Loan Group, the related Available Funds for such Distribution Date, reduced by
the aggregate amount distributable (or allocable to the Accrual Amount, if
applicable) on such Distribution Date in respect of interest on the related
Senior Certificates pursuant to Section 4.02(a)(1)(i), Section 4.02(a)(2)(i) and
Section 4.02(a)(3)(i).
Amount Held for Future Distribution: As to any Distribution Date and the
Mortgage Loans in a Loan Group, the aggregate amount held in the Certificate
Account at the close of business on the related Determination Date on account of
(i) Principal Prepayments received after the last day of the related Prepayment
Period and Liquidation Proceeds and Subsequent Recoveries relating to the
Mortgage Loans in such Loan Group received in the month of such Distribution
Date and (ii) all Scheduled Payments relating to the Mortgage Loans in that Loan
Group due after the related Due Date.
Applicable Credit Support Percentage: As defined in Section 4.02(e).
Appraised Value: With respect to any Mortgage Loan, the Appraised Value of
the related Mortgaged Property shall be: (i) with respect to a Mortgage Loan
other than a Refinance Loan, the lesser of (a) the value of the Mortgaged
Property based upon the appraisal made at the time of the origination of such
Mortgage Loan and (b) the sales price of the Mortgaged Property at the time of
the origination of such Mortgage Loan; (ii) with respect to a Refinance Loan,
the value of the Mortgaged Property based upon the appraisal made at the time of
the origination of such Refinance Loan.
Assumed Balance: With respect to any Distribution Date, Class of
Subordinated Certificates and Loan Group, a pro rata amount for each such Class
(based on their respective Class Certificate Balances) in such Loan Group equal
to the product of the Subordinated Percentage for such Loan Group as of such
Distribution Date and the aggregate Stated Principal Balance of each Mortgage
Loan in such Loan Group as of the Due Date occurring in the month preceding the
month of such Distribution Date (after giving effect to Principal Prepayments
received in the Prepayment Period related to such prior Due Date).
Assumed Interest Amount: With respect to any Distribution Date, any Class
of Subordinated Certificates and any Loan Group, one month's interest accrued
during the related Interest Accrual Period at the Pass-Through Rate on the
related Assumed Balance immediately prior to that Distribution Date.
10
Available Funds: As to any Distribution Date and the Mortgage Loans in a
Loan Group, the sum of (a) the aggregate amount held in the Certificate Account
at the close of business on the related Determination Date, including any
Subsequent Recoveries with respect to the Mortgage Loans in that Loan Group, net
of the Amount Held for Future Distribution, net of Prepayment Charges and net of
amounts permitted to be withdrawn from the Certificate Account pursuant to
clauses (i) - (viii), inclusive, of Section 3.09(a) and amounts permitted to be
withdrawn from the Distribution Account pursuant to clauses (i) - (iii),
inclusive, of Section 3.09(b), (b) the amount of the related Advance, (c) in
connection with Defective Mortgage Loans in such Loan Group, as applicable, the
aggregate of the Purchase Prices and Substitution Adjustment Amounts deposited
on the related Distribution Account Deposit Date, and (d) any amount deposited
on the related Distribution Account Deposit Date pursuant to Section 3.10. The
Holders of the Class P Certificates will be entitled to all Prepayment Charges
received on the Mortgage Loans and such amounts will not be available for
distribution to the Holders of any other Class of Certificates.
Bankruptcy Code: The United States Bankruptcy Reform Act of 1978, as
amended.
Bankruptcy Coverage Termination Date: The point in time at which the
Bankruptcy Loss Coverage Amount is reduced to zero.
Bankruptcy Loss: With respect to any Mortgage Loan, a Deficient Valuation
or Debt Service Reduction; provided, however, that a Bankruptcy Loss shall not
be deemed a Bankruptcy Loss under this Agreement so long as the Servicer has
notified the Trustee in writing that the Servicer is diligently pursuing any
remedies that may exist in connection with the related Mortgage Loan and either
(A) the related Mortgage Loan is not in default with regard to payments due
under the Mortgage Loan or (B) delinquent payments of principal and interest
under the related Mortgage Loan and any related escrow payments in respect of
such Mortgage Loan are being advanced on a current basis by the Servicer, in
either case without giving effect to any Debt Service Reduction or Deficient
Valuation..
Bankruptcy Loss Coverage Amount: As of any date of determination, the
Bankruptcy Loss Coverage Amount shall equal the Initial Bankruptcy Loss Coverage
Amount as reduced by (i) the aggregate amount of Bankruptcy Losses allocated to
the Certificates since the Cut-off Date and (ii) any permissible reductions in
the Bankruptcy Loss Coverage Amount as evidenced by a letter of each Rating
Agency to the Trustee to the effect that any such reduction will not result in a
downgrading, qualification or withdrawal of the then current ratings assigned to
the Classes of Certificates rated by it.
Blanket Mortgage: The mortgage or mortgages encumbering a Cooperative
Property.
Book-Entry Certificates: As specified in the Preliminary Statement.
Business Day: Any day other than (i) a Saturday or a Sunday, or (ii) a day
on which banking institutions in the City of New York, New York, the State of
California or the city in which the Corporate Trust Office of the Trustee is
located are authorized or obligated by law or executive order to be closed.
Calculation Rate: For each Distribution Date, the product of (i) 10 and
(ii) the weighted average pass-through rate of the outstanding Class A and Class
B Interests, treating each of the Class A Interests as having an Interest Rate
of 0.00%.
Cap Counterparty: Not applicable.
Certificate: Any one of the certificates issued by the Trust Fund and
executed by the Trustee in substantially the forms attached as exhibits.
11
Certificate Account: The separate Eligible Account or Accounts created and
maintained by the Servicer pursuant to Section 3.06(d) with a depository
institution in the name of the Servicer for the benefit of the Trustee on behalf
of Certificateholders and designated "IndyMac Bank, F.S.B., in trust for the
registered holders of IndyMac INDX Mortgage Loan Trust 2007-AR1, Mortgage
Pass-Through Certificates, Series 2007-AR1."
Certificate Balance: With respect to any Certificate (other than a
Notional Amount Certificate) at any date of determination, the maximum dollar
amount of principal to which the Holder thereof is then entitled under this
Agreement, such amount being equal to the Denomination thereof (A) plus any
increase in the Certificate Balance of such Certificate pursuant to Section 4.02
due to the receipt of Subsequent Recoveries on the Mortgage Loans in a Loan
Group, (B) minus the sum of (i) all distributions of principal previously made
with respect thereto and (ii) all Realized Losses allocated to that Certificate
and, in the case of any Subordinated Certificates, all other reductions in
Certificate Balance previously allocated to that Certificate pursuant to Section
4.05 and (C) in the case of any Class of Accrual Certificates, plus the Accrual
Amount added to the Class Certificate Balance of such Class prior to such date.
The Notional Amount Certificates have no Certificate Balances.
Certificate Group: Any of the Group 1, Group 2 and Group 3, as the context
requires.
Certificate Owner: With respect to a Book-Entry Certificate, the Person
who is the beneficial owner of the Book-Entry Certificate. For the purposes of
this Agreement, in order for a Certificate Owner to enforce any of its rights
under this Agreement, it shall first have to provide evidence of its beneficial
ownership interest in a Certificate that is reasonably satisfactory to the
Trustee, the Depositor and/or the Servicer, as applicable.
Certificate Register: The register maintained pursuant to Section 5.02.
Certificate Registrar: Deutsche Bank National Trust Company and its
successors and, if a successor certificate registrar is appointed under this
Agreement, the successor.
Certificateholder or Holder: The person in whose name a Certificate is
registered in the Certificate Register, except that, solely for the purpose of
giving any consent pursuant to this Agreement, any Certificate registered in the
name of the Depositor or any affiliate of the Depositor is not Outstanding and
the Percentage Interest evidenced thereby shall not be taken into account in
determining whether the requisite amount of Percentage Interests necessary to
effect a consent has been obtained, except that if the Depositor or its
affiliates own 100% of the Percentage Interests evidenced by a Class of
Certificates, the Certificates shall be Outstanding for purposes of any
provision of this Agreement requiring the consent of the Holders of Certificates
of a particular Class as a condition to the taking of any action. The Trustee is
entitled to rely conclusively on a certification of the Depositor or any
affiliate of the Depositor in determining which Certificates are registered in
the name of an affiliate of the Depositor.
Certification Party: As defined in Section 11.05.
Certifying Person: As defined in Section 11.05.
Class: All Certificates bearing the same class designation as set forth in
the Preliminary Statement.
Class A Interest: Each of the Class A-1, Class A-2 and Class A-3
Interests.
Class B Interest: Each of the Class B-1, Class B-2 and Class B-3
Interests.
12
Class C Interest: Each of the Class C-1, Class C-2 and Class C-3
Interests.
Class Certificate Balance: For any Class as of any date of determination,
the aggregate of the Certificate Balances of all Certificates of the Class as of
that date.
Class Interest Shortfall: As to any Distribution Date and Class, the
amount by which the amount described in clause (i) of the definition of Class
Optimal Interest Distribution Amount for such Class exceeds the amount of
interest actually distributed on such Class on such Distribution Date pursuant
to such clause (i).
Class Optimal Interest Distribution Amount: With respect to any
Distribution Date and interest-bearing Class, the sum of (i) one month's
interest accrued during the related Interest Accrual Period at the Pass-Through
Rate for such Class on the related Class Certificate Balance immediately prior
to such Distribution Date, subject to reduction pursuant to Section 4.02(d), and
(ii) any Class Unpaid Interest Amounts for such Class.
Class Subordination Percentage: With respect to any Distribution Date and
each Class of Subordinated Certificates, the fraction (expressed as a
percentage) the numerator of which is the Class Certificate Balance of such
Class of Subordinated Certificates immediately prior to such Distribution Date
and the denominator of which is the aggregate Class Certificate Balance of all
Classes of Certificates immediately prior to such Distribution Date.
Class Unpaid Interest Amounts: As to any Distribution Date and Class of
interest-bearing Certificates, the amount by which the aggregate Class Interest
Shortfalls for such Class on prior Distribution Dates exceeds the amount
distributed on such Class on prior Distribution Dates pursuant to clause (ii) of
the definition of Class Optimal Interest Distribution Amount.
Closing Date: February 27, 2007.
CMT Index: Not applicable.
Code: The Internal Revenue Code of 1986, including any successor or
amendatory provisions.
COFI: Not applicable.
COFI Certificates: Not applicable.
Commission: The United States Securities and Exchange Commission.
Compensating Interest: For any Distribution Date, 0.125% multiplied by
one-twelfth multiplied by the aggregate Stated Principal Balance of the Mortgage
Loans as of the first day of the prior month.
Components: Not applicable.
Co-op Shares: Shares issued by a Cooperative Corporation.
Cooperative Corporation: The entity that holds title (fee or an acceptable
leasehold estate) to the real property and improvements constituting the
Cooperative Property and that governs the Cooperative Property, which
Cooperative Corporation must qualify as a Cooperative Housing Corporation under
section 216 of the Code.
Cooperative Loan: Any Mortgage Loan secured by Co-op Shares and a
Proprietary Lease.
13
Cooperative Property: The real property and improvements owned by the
Cooperative Corporation, including the allocation of individual dwelling units
to the holders of the Co-op Shares of the Cooperative Corporation.
Cooperative Unit: A single family dwelling located in a Cooperative
Property.
Corporate Trust Office: The designated office of the Trustee in the State
of California at which at any particular time its corporate trust business with
respect to this Agreement is administered, which office at the date of the
execution of this Agreement is located at ▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: Trust Administration- IN07A1 (IndyMac MBS, Inc., IndyMac
INDX Mortgage Loan Trust 2007-AR1, Mortgage Pass-Through Certificates, Series
2007-AR1), and which is the address to which notices to and correspondence with
the Trustee should be directed. The office of the Certificate Registrar for
purposes of presentment of certificates for registration of transfer, exchange
or final payment is located at DB Services Tennessee, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Transfer Unit.
Cross-over Situation: For any Distribution Date and for any Loan Group
(after taking into account principal distributions on such Distribution Date) a
Cross-Over Situation exists with respect to the Class A and Class B Interests of
the Loan Group if such Interests in the aggregate are less than 1% of the
Assumed Balance of the related Loan Group.
Cut-off Date: February 1, 2007.
Cut-off Date Pool Principal Balance: $ 714,964,886.25.
Cut-off Date Principal Balance: As to any Mortgage Loan, its Stated
Principal Balance as of the close of business on the Cut-off Date.
Debt Service Reduction: For any Mortgage Loan, a reduction by a court of
competent jurisdiction in a proceeding under the Bankruptcy Code in the
Scheduled Payment for the Mortgage Loan that became final and non-appealable,
except a reduction resulting from a Deficient Valuation or a reduction that
results in a permanent forgiveness of principal.
Defective Mortgage Loan: Any Mortgage Loan that is required to be
repurchased pursuant to Section 2.02 or 2.03.
Deficient Valuation: For any Mortgage Loan, a valuation by a court of
competent jurisdiction of the Mortgaged Property in an amount less than the then
outstanding indebtedness under the Mortgage Loan, or any reduction in the amount
of principal to be paid in connection with any Scheduled Payment that results in
a permanent forgiveness of principal, which valuation or reduction results from
an order of the court that is final and non-appealable in a proceeding under the
Bankruptcy Code.
Definitive Certificates: Any Certificate evidenced by a Physical
Certificate and any Certificate issued in lieu of a Book-Entry Certificate
pursuant to Section 5.02(e).
Delay Certificates: As specified in the Preliminary Statement.
Delay Delivery Certification: A certification substantially in the form of
Exhibit G-2.
Delay Delivery Mortgage Loans: The Mortgage Loans identified on the
Mortgage Loan Schedule for which none of a related Mortgage File, or neither the
Mortgage Note, nor a lost note
14
affidavit for a lost Mortgage Note, has been delivered to the Trustee by the
Closing Date. The Depositor shall deliver the Mortgage Files to the Trustee:
(A) for at least 70% of the Mortgage Loans in each Loan Group, not later
than the Closing Date, and
(B) for the remaining 30% of the Mortgage Loans in each Loan Group, not
later than five Business Days following the Closing Date.
To the extent that the Seller is in possession of any Mortgage File for
any Delay Delivery Mortgage Loan, until delivery of the Mortgage File to the
Trustee as provided in Section 2.01, the Seller shall hold the files as
Servicer, as agent and in trust for the Trustee.
Deleted Mortgage Loan: As defined in Section 2.03(c).
Delinquent: A Mortgage Loan is "Delinquent" if any monthly payment due on
a Due Date is not made by the close of business on the next scheduled Due Date
for such Mortgage Loan. A Mortgage Loan is "30 days Delinquent" if such monthly
payment has not been received by the close of business on the corresponding day
of the month immediately succeeding the month in which such monthly payment was
due. The determination of whether a Mortgage Loan is "60 days Delinquent", "90
days Delinquent", etc. shall be made in a like manner.
Denomination: For each Certificate, the amount on the face of the
Certificate as the "Initial Certificate Balance of this Certificate" or the
"Initial Notional Amount of this Certificate" or, if neither of the foregoing,
the Percentage Interest appearing on the face of the Certificate.
Depositor: IndyMac MBS, Inc., a Delaware corporation, or its successor in
interest.
Depository: The initial Depository shall be The Depository Trust Company,
the nominee of which is CEDE & Co., as the registered Holder of the Book-Entry
Certificates. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(a)(5) of the UCC.
Depository Participant: A broker, dealer, bank, or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Determination Date: As to any Distribution Date, the 18th day of each
month or if that day is not a Business Day the next Business Day, except that if
the next Business Day is less than two Business Days before the related
Distribution Date, then the Determination Date shall be the Business Day
preceding the 18th day of the month.
Distribution Account: The separate Eligible Account created and maintained
by the Trustee pursuant to Section 3.06(e) in the name of the Trustee for the
benefit of the Certificateholders and designated "Deutsche Bank National Trust
Company in trust for registered holders of IndyMac INDX Mortgage Loan Trust
2007-AR1, Mortgage Pass-Through Certificates, Series 2007-AR1." 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.
15
Distribution Date: The 25th day of each calendar month, or if that day is
not a Business Day, the next Business Day, commencing in March 2007.
Due Date: For any Mortgage Loan and Distribution Date, the first day of
the month in which such Distribution Date occurs.
Due Period: For any Distribution Date, the period commencing on the second
day of the month preceding the month in which the Distribution Date occurs and
ending on the first day of the month in which the Distribution Date occurs.
▇▇▇▇▇: The Commission's Electronic Data Gathering, Analysis and Retrieval
system.
Eligible Account: Any of
(i) an account or accounts maintained with a federal or state chartered
depository institution or trust company the short-term unsecured debt
obligations of which (or, in the case of a depository institution or trust
company that is the principal subsidiary of a holding company, the debt
obligations of such holding company) have the highest short-term ratings of
Moody's or Fitch and one of the two highest short-term ratings of S&P, if S&P is
a Rating Agency at the time any amounts are held on deposit therein, or
(ii) an account or accounts in a depository institution or trust company
in which such accounts are insured by the FDIC (to the limits established by the
FDIC) and the uninsured deposits in which accounts are otherwise secured such
that, as evidenced by an Opinion of Counsel delivered to the Trustee and to each
Rating Agency, the Certificateholders have a claim with respect to the funds in
such account or a perfected first priority security interest against any
collateral (which shall be limited to Permitted Investments) securing such funds
that is superior to claims of any other depositors or creditors of the
depository institution or trust company in which such account is maintained, or
(iii) a trust account or accounts maintained with (a) the trust department
of a federal or state chartered depository institution or (b) a trust company,
acting in its fiduciary capacity, or
(iv) any other account acceptable to each Rating Agency.
Eligible Accounts may bear interest, and may include, if otherwise qualified
under this definition, accounts maintained with the Trustee.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
ERISA-Qualifying Underwriting: A best efforts or firm commitment
underwriting or private placement that meets the requirements of the
Underwriter's Exemption.
ERISA-Restricted Certificate: As specified in the Preliminary Statement.
Escrow Account: The Eligible Account or Accounts established and
maintained pursuant to Section 3.07(a).
Event of Default: As defined in Section 7.01.
Excess Loss: The amount of any (i) Fraud Loss on the Mortgage Loans
realized after the Fraud Loss Coverage Termination Date, (ii) Special Hazard
Loss on the Mortgage Loans realized after the
16
Special Hazard Coverage Termination Date or (iii) Bankruptcy Loss on the
Mortgage Loans realized after the Bankruptcy Coverage Termination Date.
Excess Proceeds: For any Liquidated Mortgage Loan, the excess of
(a) all Liquidation Proceeds from the Mortgage Loan received in the
calendar month in which the Mortgage Loan became a Liquidated Mortgage Loan, net
of any amounts previously reimbursed to the Servicer as Nonrecoverable Advances
with respect to the Mortgage Loan pursuant to Section 3.09(a)(iii), over
(b) the sum of (i) the unpaid principal balance of the Liquidated Mortgage
Loan as of the Due Date in the month in which the Mortgage Loan became a
Liquidated Mortgage Loan plus (ii) accrued interest at the Mortgage Rate from
the Due Date for which interest was last paid or advanced (and not reimbursed)
to Certificateholders up to the Due Date applicable to the Distribution Date
following the calendar month during which the liquidation occurred.
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder.
Exchange Act Reports: Any reports on Form 10-D, Form 8-K and Form 10-K
required to be filed by the Depositor with respect to the Trust Fund under the
Exchange Act.
Expense Fee Rate: As to each Mortgage Loan, the sum of (a) the Servicing
Fee Rate and (b) the Trustee Fee Rate.
FDIC: The Federal Deposit Insurance Corporation, or any successor thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of the
Emergency Home Finance Act of 1970, as amended, or any successor thereto.
Fitch: Fitch, Inc., or any successor thereto. If Fitch is designated as a
Rating Agency in the Preliminary Statement, for purposes of Section 10.05(b) the
address for notices to Fitch shall be Fitch, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: MBS Monitoring - IndyMac INDX 2007-AR1, or any other
address Fitch furnishes to the Depositor and the Servicer.
FNMA: The Federal National Mortgage Association, a federally chartered and
privately owned corporation organized and existing under the Federal National
Mortgage Association Charter Act, or any successor thereto.
Form 10-D Disclosure Item: With respect to any Person, any material
litigation or governmental proceedings pending against such Person, or against
any of the Trust Fund, the Depositor, the Trustee or the Servicer, if such
Person has actual knowledge thereof.
Form 10-K Disclosure Item: With respect to any Person, (a) Form 10-D
Disclosure Item, and (b) any affiliations or relationships between such Person
and any Item 1119 Party.
Fraud Loan: A Liquidated Mortgage Loan as to which a Fraud Loss has
occurred.
Fraud Loss Coverage Amount: As of the Closing Date, $21,448,947, subject
to reduction from time to time, by the amount of Fraud Losses allocated to the
Certificates. In addition, on each anniversary
17
of the Cut-off Date, the Fraud Loss Coverage Amount will be reduced as follows:
(a) on the first, second, third and fourth anniversaries of the Cut-off Date, to
an amount equal to the lesser of (i) 2.00% of the then current Stated Principal
Balance of the Mortgage Loans in the case of the first anniversary and 1.00% of
the then-current Stated Principal Balance of the Mortgage Loans in the case of
the second, third and fourth such anniversaries and (ii) the excess of the Fraud
Loss Coverage Amount as of the preceding anniversary of the Cut-off Date over
the cumulative amount of Fraud Losses allocated to the Certificates since such
preceding anniversary; and (b) on the fifth anniversary of the Cut-off Date, to
zero.
Fraud Loss Coverage Termination Date: The point in time at which the Fraud
Loss Coverage Amount is reduced to zero.
Fraud Losses: Realized Losses on Mortgage Loans as to which a loss is
sustained by reason of a default arising from fraud, dishonesty or
misrepresentation in connection with the related Mortgage Loan, including a loss
by reason of the denial of coverage under any related Primary Insurance Policy
because of such fraud, dishonesty or misrepresentation.
Gross Margin: With respect to each Mortgage Loan, the fixed percentage set
forth in the related Mortgage Note that is added to the Mortgage Index on each
Adjustment Date in accordance with the terms of the related Mortgage Note used
to determine the Mortgage Rate for such Mortgage Loan.
Group 1 Certificates: As specified in the Preliminary Statement.
Group 1 Mortgage Loan: Any Mortgage Loan in Loan Group 1.
Group 1 Senior Certificates: As specified in the Preliminary Statement.
Group 2 Certificates: As specified in the Preliminary Statement.
Group 2 Mortgage Loan: Any Mortgage Loan in Loan Group 2.
Group 2 Senior Certificates: As specified in the Preliminary Statement.
Group 3 Certificates: As specified in the Preliminary Statement.
Group 3 Mortgage Loan: Any Mortgage Loan in Loan Group 3.
Group 3 Senior Certificates: As specified in the Preliminary Statement.
Hard Prepayment Charges: As to a Mortgage Loan, any charge payable by a
Mortgagor in connection with certain partial Principal Prepayments and all
Principal Prepayments in Full made within the related Prepayment Charge Period,
the Hard Prepayment Charges with respect to each applicable Mortgage Loan so
held by the Trust Fund being identified in the Mortgage Loan Schedule.
Hedged Certificates: Not applicable.
Index: Not applicable.
Indirect Participant: A broker, dealer, bank, or other financial
institution or other Person that clears through or maintains a custodial
relationship with a Depository Participant.
Initial Bankruptcy Loss Coverage Amount: $320,496.
18
Initial LIBOR Rate: Not applicable.
Insurance Policy: For any Mortgage Loan included in the Trust Fund, any
insurance policy, including all riders and endorsements thereto in effect,
including any replacement policy or policies for any Insurance Policies.
Insurance Proceeds: Proceeds paid by an insurer pursuant to any Insurance
Policy, in each case other than any amount included in such Insurance Proceeds
in respect of Insured Expenses.
Insured Expenses: Expenses covered by an Insurance Policy or any other
insurance policy with respect to the Mortgage Loans.
Interest Accrual Period: With respect to each Class of Delay Certificates
and any Distribution Date, the calendar month prior to the month of such
Distribution Date. All Classes of Certificates will accrue interest on the basis
of a 360-day year consisting of twelve 30-day months.
Interest Determination Date: With respect to (a) any Interest Accrual
Period for any LIBOR Certificates and (b) any Interest Accrual Period for the
COFI Certificates for which the applicable Index is LIBOR, the second Business
Day prior to the first day of such Interest Accrual Period.
Interest Rate: With respect to each REMIC 1 Interest, the applicable rate
set forth or calculated in the manner described in the Preliminary Statement.
Interest Settlement Rate: As defined in Section 4.08.
Item 1119 Party: The Depositor, the Seller, the Servicer, the Trustee and
any other material transaction party, as identified in Exhibit T hereto, as
updated pursuant to Section 11.04.
Latest Possible Maturity Date: The Distribution Date, determined as of the
Closing Date, following the third anniversary of the later of: (i) the scheduled
maturity date of the Mortgage Loan having the latest scheduled maturity date as
of the Cut-off Date, and (ii) the latest possible maturity of any Substitute
Mortgage Loan that may be substituted for any Mortgage Loan pursuant to this
Agreement.
Lender PMI Loans: Mortgage Loans with respect to which the lender rather
than the borrower acquired the primary mortgage guaranty insurance and charged
the related borrower an interest premium.
LIBOR: The London interbank offered rate for one month United States
dollar deposits calculated in the manner described in Section 4.08.
LIBOR Determination Date: For any Interest Accrual Period, the second
London Business Day prior to the commencement of such Interest Accrual Period.
Limited Exchange Act Reporting Obligations: The obligations of the
Servicer under Section 3.17(b), Section 6.02 and Section 6.04 with respect to
notice and information to be provided to the Depositor and Article 11 (except
Section 11.07(a)(i) and (ii)).
Liquidated Mortgage Loan: For any Distribution Date, a defaulted Mortgage
Loan (including any REO Property) that was liquidated in the calendar month
preceding the month of the Distribution
19
Date and as to which the Servicer has certified (in accordance with this
Agreement) that it has received all amounts it expects to receive in connection
with the liquidation of the Mortgage Loan, including the final disposition of an
REO Property.
Liquidation Proceeds: Amounts, including Insurance Proceeds regardless of
when received, received in connection with the partial or complete liquidation
of defaulted Mortgage Loans, whether through trustee's sale, foreclosure sale,
or otherwise or amounts received in connection with any condemnation or partial
release of a Mortgaged Property, and any other proceeds received in connection
with an REO Property, less the sum of related unreimbursed Servicing Fees,
Servicing Advances, and Advances.
Loan Group: Any of Loan Group 1, Loan Group 2 or Loan Group 3, as
applicable.
Loan Group 1: All Mortgage Loans identified as Group 1 Mortgage Loans on
the Mortgage Loan Schedule.
Loan Group 2: All Mortgage Loans identified as Group 2 Mortgage Loans on
the Mortgage Loan Schedule.
Loan Group 3: All Mortgage Loans identified as Group 3 Mortgage Loans on
the Mortgage Loan Schedule.
Loan-to-Value Ratio: For any Mortgage Loan and as of any date of
determination, is the fraction whose numerator is the original principal balance
of the related Mortgage Loan at that date of determination and whose denominator
is the Appraised Value of the related Mortgaged Property.
London Business Day: Any day on which dealings in deposits of United
States dollars are transacted in the London interbank market.
Lost Mortgage Note: Any Mortgage Note the original of which was
permanently lost or destroyed and has not been replaced.
Maintenance: For any Cooperative Unit, the rent paid by the Mortgagor to
the Cooperative Corporation pursuant to the Proprietary Lease.
Maximum Mortgage Rate: For each Mortgage Loan, the percentage set forth in
the related Mortgage Note as the lifetime maximum Mortgage Rate to which such
Mortgage Rate may be adjusted.
MERS: Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or any successor
thereto.
MERS Mortgage Loan: Any Mortgage Loan registered with MERS on the MERS(R)
System.
MERS(R) System: The system of recording transfers of mortgages
electronically maintained by MERS.
MIN: The mortgage identification number for any MERS Mortgage Loan.
Minimum Mortgage Rate: For each Mortgage Loan, the percentage set forth in
the related Mortgage Note as the lifetime minimum Mortgage Rate to which such
Mortgage Rate may be adjusted.
20
MOM Loan: Any Mortgage Loan as to which MERS is acting as mortgagee,
solely as nominee for the originator of such Mortgage Loan and its successors
and assigns.
Moneyline Telerate Page 3750: The display page currently so designated on
the Moneyline Telerate Information Services, Inc. (or any page replacing that
page on that service for the purpose of displaying London inter-bank offered
rates of major banks).
Monthly Statement: The statement delivered to the Certificateholders
pursuant to Section 4.06.
Moody's: ▇▇▇▇▇'▇ Investors Service, Inc., or any successor thereto. If
▇▇▇▇▇'▇ is designated as a Rating Agency in the Preliminary Statement, for
purposes of Section 10.05(b) the address for notices to Moody's shall be ▇▇▇▇▇'▇
Investors Service, Inc., ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Residential Loan Monitoring Group, or any other address that Moody's furnishes
to the Depositor and the Servicer.
Mortgage: The mortgage, deed of trust, or other instrument creating a
first lien on an estate in fee simple or leasehold interest in real property
securing a Mortgage Note.
Mortgage File: The mortgage documents listed in Section 2.01 pertaining to
a particular Mortgage Loan and any additional documents delivered to the Trustee
to be added to the Mortgage File pursuant to this Agreement.
Mortgage Index: One-Year CMT Index, Six-Month LIBOR Index or One-Year
LIBOR Index.
Mortgage Loans: Such of the mortgage loans transferred and assigned to the
Trustee pursuant to this Agreement, as from time to time are held as a part of
the Trust Fund (including any REO Property), the Mortgage Loans so held being
identified on the Mortgage Loan Schedule, notwithstanding foreclosure or other
acquisition of title of the related Mortgaged Property.
Mortgage Loan Schedule: As of any date, the list set forth in Schedule I
of Mortgage Loans included in the Trust Fund on that date. The Mortgage Loan
Schedule shall be prepared by the Seller and shall set forth the following
information with respect to each Mortgage Loan by Loan Group:
(i) the loan number;
(ii) the street address of the Mortgaged Property, including the
zip code;
(iii) the maturity date;
(iv) the original principal balance;
(v) the Cut-off Date Principal Balance;
(vi) the first payment date of the Mortgage Loan;
(vii) the Scheduled Payment in effect as of the Cut-off Date;
(viii) the Gross Margin in effect as of the Cut-off Date;
(ix) the Maximum Mortgage Rate in effect as of the Cut-off Date;
(x) the Adjustment Date in effect as of the Cut-off Date;
21
(xi) a code indicating the Mortgage Index and when it is
determined;
(xii) the Loan-to-Value Ratio at origination;
(xiii) a code indicating whether the residential dwelling at the
time of origination was represented to be owner-occupied;
(xiv) a code indicating whether the residential dwelling is either
(a) a detached single family dwelling, (b) a dwelling in a
PUD, (c) a condominium unit, (d) a two- to four-unit
residential property, or (e) a Cooperative Unit;
(xv) the Mortgage Rate in effect as of the Cut-off Date;
(xvi) the purpose for the Mortgage Loan;
(xvii) the type of documentation program pursuant to which the
Mortgage Loan was originated;
(xviii) a code indicating whether the Mortgage Loan is a
borrower-paid mortgage insurance loan;
(xix) the Servicing Fee Rate;
(xx) a code indicating whether the Mortgage Loan is a Lender PMI
Loan;
(xxi) the coverage amount of any mortgage insurance;
(xxii) with respect to the Lender PMI Loans, the interest premium
charged by the lender;
(xxiii) a code indicating whether the Mortgage Loan is a Delay
Delivery Mortgage Loan;
(xxiv) the Minimum Mortgage Rate in effect as of the Cut-off Date;
and
(xxv) a code indicating whether the Mortgage Loan is a MERS Mortgage
Loan.
The schedule shall also set forth the total of the amounts described under (v)
above for all of the Mortgage Loans and for each Loan Group.
Mortgage Note: The original executed note or other evidence of the
indebtedness of a Mortgagor under a Mortgage Loan.
Mortgage Rate: The annual rate of interest borne by a Mortgage Note from
time to time (net of the interest premium for any Lender PMI Loan).
Mortgaged Property: The underlying property securing a Mortgage Loan,
which, with respect to a Cooperative Loan, is the related Co-op Shares and
Proprietary Lease.
Mortgagor: The obligors on a Mortgage Note.
22
National Cost of Funds Index: The National Monthly Median Cost of Funds
Ratio to SAIF-Insured Institutions published by the OTS.
Net Prepayment Interest Shortfall: As to any Distribution Date and Loan
Group, the amount by which the aggregate of the Prepayment Interest Shortfalls
for such Loan Group and such Distribution Date exceeds an amount equal to the
sum of (a) the Compensating Interest allocable to such Loan Group for such
Distribution Date and (b) the excess, if any, of the Compensating Interest
allocable to the other Loan Groups for such Distribution Date over the
Prepayment Interest Shortfalls for such other Loan Groups and Distribution Date.
Non-Delay Certificates: As specified in the Preliminary Statement.
Nonrecoverable Advance: Any portion of an Advance previously made or
proposed to be made by the Servicer, that, in the good faith judgment of the
Servicer, will not be ultimately recoverable by the Servicer from the related
Mortgagor, related Liquidation Proceeds or otherwise.
Notice of Final Distribution: The notice to be provided pursuant to
Section 9.02 to the effect that final distribution on any of the Certificates
shall be made only upon presentation and surrender thereof.
Notional Amount: With respect to the Class 1-A-X Certificates for the
Interest Accrual Period for any Distribution Date (x) up to and including the
Distribution Date in January 2012, the Class Certificate Balance of the Class
1-A-1 Certificates immediately prior to that Distribution Date, and (y) after
the Distribution Date in January 2012, zero.
Notional Amount Certificates: As specified in the Preliminary Statement.
Notional Amount Components: As specified in the Preliminary Statement.
Offered Certificates: As specified in the Preliminary Statement.
Officer's Certificate: A certificate (i) signed by the Chairman of the
Board, the Vice Chairman of the Board, the President, a Managing Director, a
Vice President (however denominated), an Assistant Vice President, the
Treasurer, the Secretary, or one of the Assistant Treasurers or Assistant
Secretaries of the Depositor or the Servicer, or (ii) if provided for in this
Agreement, signed by a Servicing Officer, as the case may be, and delivered to
the Depositor and the Trustee as required by this Agreement or (iii) in the case
of any other Person, signed by an authorized officer of such Person.
One-Year CMT Index: The weekly average yield on United States Treasury
securities adjusted to a constant maturity of one year as published by the
Federal Reserve Board in Statistical Release H.15(591) and most recently
available as of a day specified in the related Mortgage Note.
One-Year LIBOR Index: The average of the London interbank offered rates
for one-year U.S. dollar deposits in the London market, generally as set forth
in either The Wall Street Journal or some other source generally accepted in the
residential mortgage loan origination business and specified in the related
Mortgage Note, or, if such rate ceases to be published in The Wall Street
Journal or becomes unavailable for any reason, then based upon a new index
selected by the servicer, based on comparable information, in each case, as most
recently announced as of either 45 days prior to, or the first Business Day of
the month immediately preceding the month of, such Adjustment Date.
23
Opinion of Counsel: For the interpretation or application of the REMIC
Provisions, a written opinion of counsel who (i) is in fact independent of the
Depositor and the Servicer, (ii) does not have any direct financial interest in
the Depositor or the Servicer or in any affiliate of either, and (iii) is not
connected with the Depositor or the Servicer as an officer, employee, promoter,
underwriter, trustee, partner, director, or person performing similar functions.
Otherwise, a written opinion of counsel who may be counsel for the Depositor or
the Servicer, including in-house counsel, reasonably acceptable to the Trustee.
Optional Termination Date: As defined in Section 9.01.
Original Applicable Credit Support Percentage: With respect to each of the
following Classes of Subordinated Certificates, the corresponding percentage
described below:
Class B-1............................................ 7.95%
Class B-2............................................ 5.05%
Class B-3............................................ 3.15%
Class B-4............................................ 2.00%
Class B-5............................................ 1.15%
Class B-6............................................ 0.45%
Original Mortgage Loan: The Mortgage Loan refinanced in connection with
the origination of a Refinance Loan.
Original Subordinated Principal Balance: On or prior to the second Senior
Termination Date, the Subordinated Percentage of the aggregate Stated Principal
Balance of the Mortgage Loans in the related Loan Group, in each case as of the
Cut-off Date; or if such date is after the second Senior Termination Date, the
aggregate Class Certificate Balance of the Subordinated Certificates as of the
Closing Date.
OTS: The Office of Thrift Supervision.
Outside Reference Date: Not applicable.
Outstanding: For the Certificates as of any date of determination, all
Certificates theretofore executed and authenticated under this Agreement except:
(i) Certificates theretofore canceled by the Trustee or delivered
to the Trustee for cancellation; and
(ii) Certificates in exchange for which or in lieu of which other
Certificates have been executed and delivered by the Trustee
pursuant to this Agreement.
Outstanding Mortgage Loan: As of any Due Date, a Mortgage Loan with a
Stated Principal Balance greater than zero that was not the subject of a
Principal Prepayment in Full before the Due Date or during the related
Prepayment Period and that did not become a Liquidated Mortgage Loan before the
Due Date.
Overcollateralized Group: As defined in Section 4.03.
24
Ownership Interest: As to any Residual Certificate, any ownership interest
in the Certificate including any interest in the Certificate as its Holder and
any other interest therein, whether direct or indirect, legal or beneficial.
Pass-Through Rate: For each Class of Certificates, the per annum rate set
forth or calculated in the manner described in the Preliminary Statement.
Percentage Interest: As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made on the related Class, the
percentage interest being set forth on its face or equal to the percentage
obtained by dividing the Denomination of the Certificate by the aggregate of the
Denominations of all Certificates of the same Class.
Performance Certification: As defined in Section 11.05.
Permitted Investments: At any time, any of the following:
(i) obligations of the United States or any agency thereof backed by the
full faith and credit of the United States;
(ii) general obligations of or obligations guaranteed by any state of the
United States or the District of Columbia receiving the highest long-term debt
rating of each Rating Agency, or any lower rating that will not result in the
downgrading, qualification or withdrawal of the ratings then assigned to the
Certificates by the Rating Agencies, as evidenced by a signed writing delivered
by each Rating Agency;
(iii) commercial or finance company paper that is then receiving the
highest commercial or finance company paper rating of each Rating Agency, or any
lower rating that will not result in the downgrading, qualification or
withdrawal of the ratings then assigned to the Certificates by the Rating
Agencies , as evidenced by a signed writing delivered by each Rating Agency;
(iv) certificates of deposit, demand or time deposits, or bankers'
acceptances issued by any depository institution or trust company incorporated
under the laws of the United States or of any state thereof and subject to
supervision and examination by federal or state banking authorities, provided
that the commercial paper or long-term unsecured debt obligations of the
depository institution or trust company (or in the case of the principal
depository institution in a holding company system, the commercial paper or
long-term unsecured debt obligations of the holding company, but only if ▇▇▇▇▇'▇
is not a Rating Agency) are then rated one of the two highest long-term and the
highest short-term ratings of each Rating Agency for the securities, or any
lower rating that will not result in the downgrading, qualification or
withdrawal of the ratings then assigned to the Certificates by the Rating
Agencies, as evidenced by a signed writing delivered by each Rating Agency;
(v) demand or time deposits or certificates of deposit issued by any bank
or trust company or savings institution to the extent that the deposits are
fully insured by the FDIC;
(vi) guaranteed reinvestment agreements issued by any bank, insurance
company, or other corporation acceptable to the Rating Agencies at the time of
the issuance of the agreements, as evidenced by a signed writing delivered by
each Rating Agency;
(vii) repurchase obligations with respect to any security described in
clauses (i) and (ii) above, in either case entered into with a depository
institution or trust company (acting as principal) described in clause (iv)
above; provided that such repurchase obligation would be accounted for as a
financing arrangement under generally accepted accounting principles;
25
(viii) securities (other than stripped bonds, stripped coupons, or
instruments sold at a purchase price in excess of 115% of their face amount)
bearing interest or sold at a discount issued by any corporation incorporated
under the laws of the United States or any state thereof that, at the time of
the investment, have one of the two highest ratings of each Rating Agency
(except if the Rating Agency is Moody's the rating shall be the highest
commercial paper rating of Moody's for the securities), or any lower rating that
will not result in the downgrading, qualification or withdrawal of the ratings
then assigned to the Certificates by the Rating Agencies, as evidenced by a
signed writing delivered by each Rating Agency and that have a maturity date
occurring no more than 365 days from their date of issuance;
(ix) units of a taxable money-market portfolio having the highest rating
assigned by each Rating Agency (except (i) if Fitch is a Rating Agency and has
not rated the portfolio, the highest rating assigned by Moody's and (ii) if S&P
is a Rating Agency, "AAAm" or "AAAM-G" by S&P) and restricted to obligations
issued or guaranteed by the United States of America or entities whose
obligations are backed by the full faith and credit of the United States of
America and repurchase agreements collateralized by such obligations; and
(x) any other investments bearing interest or sold at a discount
acceptable to each Rating Agency that will not result in the downgrading,
qualification or withdrawal of the ratings then assigned to the Certificates by
the Rating Agencies, as evidenced by a signed writing delivered by each Rating
Agency.
No Permitted Investment may (i) evidence the right to receive interest
only payments with respect to the obligations underlying the instrument, (ii) be
sold or disposed of before its maturity or (iii) be any obligation of the Seller
or any of its Affiliates. Any Permitted Investment shall be relatively risk free
and no options or voting rights shall be exercised with respect to any Permitted
Investment. Any Permitted Investment shall be sold or disposed of in accordance
with Financial Accounting Standard 140, paragraph 35c(6) in effect as of the
Closing Date.
Permitted Transferee: Any person other than
(i) the United States, any State or political subdivision thereof, or any
agency or instrumentality of any of the foregoing,
(ii) a foreign government, International Organization, or any agency or
instrumentality of either of the foregoing,
(iii) an organization (except certain farmers' cooperatives described in
section 521 of the Code) that is exempt from tax imposed by Chapter 1 of the
Code (including the tax imposed by section 511 of the Code on unrelated business
taxable income) on any excess inclusions (as defined in section 860E(c)(1) of
the Code) with respect to any Residual Certificate,
(iv) a rural electric and telephone cooperatives described in section
1381(a)(2)(C) of the Code,
(v) an "electing large partnership" as defined in section 775 of the Code,
(vi) a Person that is not a U.S. Person, and
26
(vii) any other Person so designated by the Depositor based on an Opinion
of Counsel that the Transfer of an Ownership Interest in a Residual Certificate
to the Person may cause any REMIC to fail to qualify as a REMIC at any time that
the Certificates are outstanding.
Person: Any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust,
unincorporated organization, or government, or any agency or political
subdivision thereof.
Physical Certificates: As specified in the Preliminary Statement.
Planned Balance: Not applicable.
Planned Principal Classes: As specified in the Preliminary Statement.
Pool Stated Principal Balance: The aggregate Stated Principal Balance of
the Mortgage Loans.
Prepayment Charge: As to a Mortgage Loan, any charge payable by a
Mortgagor in connection with certain partial prepayments and all prepayments in
full made within the related Prepayment Charge Period, the Prepayment Charges
with respect to each applicable Mortgage Loan so held by the Trust Fund being
identified in the Mortgage Loan Schedule.
Prepayment Charge Period: As to any Mortgage Loan, the period of time
during which a Prepayment Charge may be imposed.
Prepayment Interest Excess: As to any Principal Prepayment received by the
Servicer on a Mortgage Loan from the first day through the fifteenth day of any
calendar month other than the month of the Cut-off Date, all amounts paid by the
related Mortgagor in respect of interest on such Principal Prepayment. All
Prepayment Interest Excess shall be retained by the Servicer as additional
servicing compensation.
Prepayment Interest Shortfall: As to any Distribution Date, Mortgage Loan
and Principal Prepayment received on or after the sixteenth day of the month
preceding the month of such Distribution Date (or, in the case of the first
Distribution Date, on or after the Cut-off Date) and on or before the last day
of the month preceding the month of such Distribution Date, the amount, if any,
by which one month's interest at the related Mortgage Rate, net of the Servicing
Fee Rate, on such Principal Prepayment exceeds the amount of interest paid in
connection with such Principal Prepayment.
Prepayment Period: As to any Distribution Date and related Due Date, the
period from and including the 16th day of the month immediately prior to the
month of such Distribution Date (or, in the case of the first Distribution Date,
from the Cut-off Date) and to and including the 15th day of the month of such
Distribution Date.
Prepayment Shift Percentage: Not applicable.
Primary Insurance Policy: Each policy of primary mortgage guaranty
insurance or any replacement policy therefor with respect to any Mortgage Loan.
Principal Amount: As to any Distribution Date and each Loan Group, the sum
of (a) all monthly payments of principal due on each Mortgage Loan in that Loan
Group on the related Due Date, (b) the principal portion of the Purchase Price
of each Mortgage Loan in that Loan Group that was repurchased by the Seller
pursuant to this Agreement as of such Distribution Date, excluding any Mortgage
Loan that
27
was purchased by the Servicer as provided in Section 3.12, (c) the Substitution
Adjustment Amount in connection with any Deleted Mortgage Loan in that Loan
Group received with respect to such Distribution Date, (d) any Insurance
Proceeds or Liquidation Proceeds allocable to recoveries of principal of
Mortgage Loans in that Loan Group that are not yet Liquidated Mortgage Loans
received during the calendar month preceding the month of such Distribution
Date, (e) with respect to each Mortgage Loan in that Loan Group that became a
Liquidated Mortgage Loan during the calendar month preceding the month of such
Distribution Date, the amount of Liquidation Proceeds allocable to principal
received with respect to such Mortgage Loan, (f) all partial and full Principal
Prepayments on the Mortgage Loans in that Loan Group received during the related
Prepayment Period, and (g) any Subsequent Recoveries with respect to the
Mortgage Loans in that Loan Group received during the calendar month preceding
the month of such Distribution Date.
Principal Only Certificates: As specified in the Preliminary Statement.
Principal Prepayment: Any payment of principal by a Mortgagor on a
Mortgage Loan (including the principal portion of the Purchase Price of any
Mortgage Loan purchased by the Servicer pursuant to Section 3.12) that is
received in advance of its scheduled Due Date and is not accompanied by an
amount representing scheduled interest due on any date in any month after the
month of prepayment. The Servicer shall apply partial Principal Prepayments in
accordance with the related Mortgage Note.
Principal Prepayment in Full: Any Principal Prepayment made by a Mortgagor
of the entire principal balance of a Mortgage Loan.
Principal Relocation Payment: A payment from any Loan Group to REMIC 1
Interests other than those of their corresponding Loan Group as provided in the
Preliminary Statement. Principal Relocation Payments shall be made of principal
allocations comprising the Principal Amount from a Loan Group.
Private Certificates: As specified in the Preliminary Statement.
Pro Rata Share: As to any Distribution Date and any Class of Subordinated
Certificates, the portion of the Subordinated Principal Distribution Amount
allocable to such Class, equal to the product of the Subordinated Principal
Distribution Amount on such Distribution Date and a fraction, the numerator of
which is the related Class Certificate Balance thereof and the denominator of
which is the aggregate Class Certificate Balance of the Subordinated
Certificates, in each case immediately prior to such Distribution Date.
Proprietary Lease: For any Cooperative Unit, a lease or occupancy
agreement between a Cooperative Corporation and a holder of related Co-op
Shares.
Prospectus Supplement: The Prospectus Supplement dated February 27, 2007,
relating to the Offered Certificates, and any supplement to the Prospectus
Supplement.
PUD: Planned Unit Development.
Purchase Price: For any Mortgage Loan required to be purchased by the
Seller pursuant to Section 2.02 or 2.03 or purchased by the Servicer pursuant to
Section 3.12, the sum of
(i) 100% of the unpaid principal balance of the Mortgage Loan on the date
of the purchase,
28
(ii) accrued and unpaid interest on the Mortgage Loan at the applicable
Mortgage Rate (or at the applicable Adjusted Mortgage Rate if (x) the purchaser
is the Servicer or (y) if the purchaser is the Seller and the Seller is the
Servicer) from the date through which interest was last paid by the Mortgagor to
the Due Date in the month in which the Purchase Price is to be distributed to
Certificateholders, net of any unreimbursed Advances made by the Servicer on the
Mortgage Loan, and
(iii) any costs and damages incurred by the Trust Fund in connection with
any violation by the Mortgage Loan of any predatory or abusive lending law.
If the Mortgage Loan is purchased pursuant to Section 3.12, the interest
component of the Purchase Price shall be computed (i) on the basis of the
applicable Adjusted Mortgage Rate before giving effect to the related
modification and (ii) from the date to which interest was last paid to the date
on which the Mortgage Loan is assigned to the Servicer pursuant to Section 3.12.
Qualified Insurer: A mortgage guaranty insurance company duly qualified as
such under the laws of the state of its principal place of business and each
state having jurisdiction over the insurer in connection with the insurance
policy issued by the insurer, duly authorized and licensed in such states to
transact a mortgage guaranty insurance business in such states and to write the
insurance provided by the insurance policy issued by it, approved as a FNMA- or
FHLMC-approved mortgage insurer or having a claims paying ability rating of at
least "AA" or equivalent rating by a nationally recognized statistical rating
organization. Any replacement insurer with respect to a Mortgage Loan must have
at least as high a claims paying ability rating as the insurer it replaces had
on the Closing Date.
Rating Agency: Each of the Rating Agencies specified in the Preliminary
Statement. If any of them or a successor is no longer in existence, "Rating
Agency" shall be the nationally recognized statistical rating organization, or
other comparable Person, designated by the Depositor and identified as a "Rating
Agency" in the Underwriters' Exemption, notice of which designation shall be
given to the Trustee. References to a given rating or rating category of a
Rating Agency means the rating category without giving effect to any modifiers.
Realized Loss: With respect to each Liquidated Mortgage Loan, an amount
(not less than zero or more than the Stated Principal Balance of the Mortgage
Loan) as of the date of such liquidation, equal to (i) the Stated Principal
Balance of the Liquidated Mortgage Loan as of the date of such liquidation, plus
(ii) interest at the Adjusted Net Mortgage Rate from the Due Date as to which
interest was last paid or advanced (and not reimbursed) to Certificateholders up
to the Due Date in the month in which Liquidation Proceeds are required to be
distributed on the Stated Principal Balance of such Liquidated Mortgage Loan
from time to time, minus (iii) the Liquidation Proceeds, if any, received during
the month in which such liquidation occurred, to the extent applied as
recoveries of interest at the Adjusted Net Mortgage Rate and to principal of the
Liquidated Mortgage Loan. With respect to each Mortgage Loan which has become
the subject of a Deficient Valuation, if the principal amount due under the
related Mortgage Note has been reduced, the difference between the principal
balance of the Mortgage Loan outstanding immediately prior to such Deficient
Valuation and the principal balance of the Mortgage Loan as reduced by the
Deficient Valuation. With respect to each Mortgage Loan that has become the
subject of a Debt Service Reduction and any Distribution Date, the amount, if
any, by which the principal portion of the related Scheduled Payment has been
reduced.
To the extent the Servicer receives Subsequent Recoveries with respect to
any Mortgage Loan, the amount of the Realized Loss with respect to that Mortgage
Loan will be reduced by such Subsequent Recoveries.
29
Recognition Agreement: For any Cooperative Loan, an agreement between the
Cooperative Corporation and the originator of the Mortgage Loan that establishes
the rights of the originator in the Cooperative Property.
Record Date: With respect to any Distribution Date, the close of business
on the last Business Day of the month preceding the month of that Distribution
Date.
Reference Bank: As defined in Section 4.08.
Refinance Loan: Any Mortgage Loan the proceeds of which are used to
refinance an Original Mortgage Loan.
Regular Certificates: As specified in the Preliminary Statement.
Regulation AB: Subpart 229.1100 - Asset Backed Securities (Regulation AB),
17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from time to time, and
subject to such clarification and interpretation as have been provided by the
Commission in the adopting release (Asset-Backed Securities, Securities Act
Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff
of the Commission, or as may be provided by the Commission or its staff from
time to time.
Relief Act: The Servicemembers Civil Relief Act.
Relief Act Reductions: With respect to any Distribution Date and any
Mortgage Loan as to which there has been a reduction in the amount of interest
collectible thereon for the most recently ended calendar month as a result of
the application of the Relief Act or any similar state or local laws, the
amount, if any, by which (i) interest collectible on such Mortgage Loan for the
most recently ended calendar month is less than (ii) interest accrued thereon
for such month pursuant to the Mortgage Note.
REMIC: A "real estate mortgage investment conduit" within the meaning of
section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at sections 860A through
860G of Subchapter M of Chapter 1 of the Code, and related provisions, and
regulations promulgated thereunder, as the foregoing may be in effect from time
to time as well as provisions of applicable state laws.
REO Property: A Mortgaged Property acquired by the Trust Fund through
foreclosure or deed-in-lieu of foreclosure in connection with a defaulted
Mortgage Loan.
Reportable Event: Any event required to be reported on Form 8-K, and in
any event, the following:
(a) entry into a definitive agreement related to the Trust Fund, the
Certificates or the Mortgage Loans, or an amendment to a Transaction Document,
even if the Depositor is not a party to such agreement (e.g., a servicing
agreement with a servicer contemplated by Item 1108(a)(3) of Regulation AB);
(b) termination of a Transaction Document (other than by expiration of the
agreement on its stated termination date or as a result of all parties
completing their obligations under such agreement), even if the Depositor is not
a party to such agreement (e.g., a servicing agreement with a servicer
contemplated by Item 1108(a)(3) of Regulation AB);
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(c) with respect to the Servicer only, if the Servicer becomes aware of
any bankruptcy or receivership with respect to the Seller, the Depositor, the
Servicer, the Trustee, the Cap Counterparty, any enhancement or support provider
contemplated by Items 1114(b) or 1115 of Regulation AB, or any other material
party contemplated by Item 1101(d)(1) of Regulation AB;
(d) with respect to the Trustee, the Servicer and the Depositor only, the
occurrence of an early amortization, performance trigger or other event,
including an Event of Default under this Agreement;
(e) any amendment to this Agreement;
(f) the resignation, removal, replacement, substitution of the Servicer or
the Trustee;
(g) with respect to the Servicer only, if the Servicer becomes aware that
(i) any material enhancement or support specified in Item 1114(a)(1) through (3)
of Regulation AB or Item 1115 of Regulation AB that was previously applicable
regarding one or more Classes of the Certificates has terminated other than by
expiration of the contract on its stated termination date or as a result of all
parties completing their obligations under such agreement; (ii) any material
enhancement specified in Item 1114(a)(1) through (3) of Regulation AB or Item
1115 of Regulation AB has been added with respect to one or more Classes of the
Certificates; or (iii) any existing material enhancement or support specified in
Item 1114(a)(1) through (3) of Regulation AB or Item 1115 of Regulation AB with
respect to one or more Classes of the Certificates has been materially amended
or modified; and
(h) with respect to the Trustee, the Servicer and the Depositor only, a
required distribution to Holders of the Certificates is not made as of the
required Distribution Date under this Agreement.
Reporting Subcontractor: With respect to the Servicer or the Trustee, any
Subcontractor determined by such Person pursuant to Section 11.08(b) to be
"participating in the servicing function" within the meaning of Item 1122 of
Regulation AB. References to a Reporting Subcontractor shall refer only to the
Subcontractor of such Person and shall not refer to Subcontractors generally.
Request for Release: The Request for Release submitted by the Servicer to
the Trustee, substantially in the form of Exhibits M and N, as appropriate.
Required Insurance Policy: For any Mortgage Loan, any insurance policy
that is required to be maintained from time to time under this Agreement.
Residual Certificates: As specified in the Preliminary Statement.
Responsible Officer: When used with respect to the Trustee, any Managing
Director, any Director, Vice President, any Assistant Vice President, any
Associate, any Assistant Secretary, any Trust Officer, or any other officer of
the Trustee customarily performing functions similar to those performed by any
of the above designated officers who at such time shall be officers to whom,
with respect to a particular matter, the matter is referred because of the
officer's knowledge of and familiarity with the particular subject and who has
direct responsibility for the administration of this Agreement.
Restricted Classes: As defined in Section 4.02(e).
SAIF: The Savings Association Insurance Fund, or any successor thereto.
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification: As defined in Section 11.05.
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S&P: Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. If
S&P is designated as a Rating Agency in the Preliminary Statement, for purposes
of Section 10.05(b) the address for notices to S&P shall be Standard & Poor's, a
division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: Mortgage Surveillance Monitoring, or any other address that
S&P furnishes to the Depositor and the Servicer.
Scheduled Balance: Not applicable.
Scheduled Classes: As specified in the Preliminary Statement.
Scheduled Payment: The scheduled monthly payment on a Mortgage Loan due on
any Due Date allocable to principal and/or interest on such Mortgage Loan which,
unless otherwise specified herein, shall give effect to any related Debt Service
Reduction and any Deficient Valuation that affects the amount of the monthly
payment due on such Mortgage Loan.
Securities Act: The Securities Act of 1933, as amended.
Security Agreement: For any Cooperative Loan, the agreement between the
owner of the related Co-op Shares and the originator of the related Mortgage
Note that defines the security interest in the Co-op Shares and the related
Proprietary Lease.
Seller: IndyMac Bank, F.S.B., a federal savings bank, and its successors
and assigns, in its capacity as seller of the Mortgage Loans to the Depositor.
Senior Certificate Group: As specified in the Preliminary Statement.
Senior Certificates: As specified in the Preliminary Statement.
Senior Credit Support Depletion Date: The date on which the Class
Certificate Balance of each Class of Subordinated Certificates has been reduced
to zero.
Senior Percentage: As to any Senior Certificate Group and Distribution
Date, the percentage equivalent of a fraction the numerator of which is the
aggregate Class Certificate Balance of the Senior Certificates of such Senior
Certificate Group immediately before the Distribution Date and the denominator
of which is the aggregate Stated Principal Balance of the Mortgage Loans in the
related Loan Group as of the Due Date occurring in the month prior to the month
of that Distribution Date (after giving effect to Principal Prepayments received
on the related Mortgage Loans in the Prepayment Period related to such prior Due
Date); provided, however, that on any Distribution Date after the second Senior
Termination Date, the Senior Percentage for the Senior Certificates of the
remaining Senior Certificate Group is the percentage equivalent of a fraction,
the numerator of which is the aggregate Class Certificate Balance of the Senior
Certificates of such remaining Senior Certificate Group immediately prior to
such Distribution Date and the denominator is the aggregate Class Certificate
Balance of all Classes of Certificates immediately prior to that Distribution
Date.
Senior Prepayment Percentage: As to a Senior Certificate Group and any
Distribution Date during the seven years beginning on the first Distribution
Date, 100%. The related Senior Prepayment Percentage for any Distribution Date
occurring on or after the seventh anniversary of the first Distribution Date
will, except as provided in this Agreement, be as follows: for any Distribution
Date in the first year thereafter, the related Senior Percentage plus 70% of the
related Subordinated Percentage for such Distribution Date; for any Distribution
Date in the second year thereafter, the related Senior Percentage plus 60% of
the related Subordinated Percentage for such Distribution Date; for any
Distribution Date in
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the third year thereafter, the related Senior Percentage plus 40% of the related
Subordinated Percentage for such Distribution Date; for any Distribution Date in
the fourth year thereafter, the related Senior Percentage plus 20% of the
related Subordinated Percentage for such Distribution Date; and for any
Distribution Date thereafter, the related Senior Percentage for such
Distribution Date (unless on any Distribution Date the Senior Percentage of a
Senior Certificate Group exceeds the initial Senior Percentage for such Senior
Certificate Group in which case the Senior Prepayment Percentage for each Senior
Certificate Group for such Distribution Date will once again equal 100%).
Notwithstanding the foregoing, no decrease in any Senior Prepayment Percentage
will occur unless both Senior Step Down Conditions are satisfied with respect to
all of the Mortgage Loans.
Notwithstanding the preceding paragraphs, if (x) on or before the
Distribution Date in February 2010, the Aggregate Subordinated Percentage is at
least 200% of the Aggregate Subordinated Percentage as of the Closing Date, the
delinquency test set forth in the definition of Senior Step Down Conditions is
satisfied and cumulative Realized Losses do not exceed 20% of the aggregate
Class Certificate Balance of the Subordinated Certificates as of the Closing
Date, the Senior Prepayment Percentage for each Senior Certificate Group will
equal the related Senior Percentage for that Distribution Date plus 50% of an
amount equal to 100% minus the related Senior Percentage for that Distribution
Date and (y) after the Distribution Date in February 2010, the Aggregate
Subordinated Percentage is at least 200% of the Aggregate Subordinated
Percentage as of the Closing Date, the delinquency test set forth in the
definition of Senior Step Down Conditions is satisfied and cumulative Realized
Losses do not exceed 30% of the aggregate Class Certificate Balance of the
Subordinated Certificates as of the Closing Date, the Senior Prepayment
Percentage for each Senior Certificate Group will equal the related Senior
Percentage.
Senior Principal Distribution Amount: As to any Distribution Date and any
Loan Group, the sum of (i) the related Senior Percentage of all amounts
described in clauses (a) through (d) of the definition of Principal Amount for
that Loan Group and such Distribution Date, (ii) with respect to any Mortgage
Loan that became a Liquidated Mortgage Loan during the calendar month preceding
the month of such Distribution Date, the lesser of (x) the related Senior
Percentage of the Stated Principal Balance of such Mortgage Loan and (y) either
(A) if no Excess Losses were sustained on the Liquidated Mortgage Loan during
the preceding calendar month, the related Senior Prepayment Percentage of the
amount of the Liquidation Proceeds allocable to principal received on the
Mortgage Loan or (B) if an Excess Loss was sustained with respect to such
Liquidated Mortgage Loan during such preceding calendar month, the Senior
Percentage of the amount of the Liquidation Proceeds allocable to principal
received with respect to such Mortgage Loan, and (iii) the sum of (x) the Senior
Prepayment Percentage of the amounts described in clause (f) of the definition
of Principal Amount for that Loan Group and such Distribution Date, and (y) the
applicable Senior Prepayment Percentage of any Subsequent Recoveries described
in clause (g) of the definition of Principal Amount for that Loan Group and such
Distribution Date; provided, however, that if a Bankruptcy Loss that is an
Excess Loss is sustained with respect to a Mortgage Loan in that Loan Group that
is not a Liquidated Mortgage Loan, the Senior Principal Distribution Amount will
be reduced on the related Distribution Date by the Senior Percentage of the
applicable principal portion of such Bankruptcy Loss; provided further, however,
on any Distribution Date after the second Senior Termination Date, the Senior
Principal Distribution Amount for the remaining Senior Certificate Group will be
calculated pursuant to the above formula based on all the Mortgage Loans in the
Mortgage Pool, as opposed to the Mortgage Loans in the related Loan Group.
Senior Step Down Conditions: As to any Distribution Date: (i) the
aggregate Stated Principal Balance of all the Mortgage Loans 60 days or more
Delinquent (averaged over the preceding six month period) (including any
Mortgage Loans subject to foreclosure proceedings, REO Property (regardless of
whether that Mortgage Loan is 60 days or more Delinquent) and Mortgage Loans the
Mortgagors of which are in bankruptcy), as a percentage (a) if such date is on
or prior to second Senior Termination Date, the Subordinated Percentage for that
Loan Group of the aggregate Stated Principal Balance of the
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Mortgage Loans in that Loan Group, or (b) if such date is after the second
Senior Termination Date, the aggregate Class Certificate Balance of the
Subordinated Certificates immediately prior to such Distribution Date, does not
equal or exceed 50%, and (ii) cumulative Realized Losses do not exceed: (a)
commencing with the Distribution Date on the seventh anniversary of the first
Distribution Date, 30% of the Original Subordinated Principal Balance, (b)
commencing with the Distribution Date on the eighth anniversary of the first
Distribution Date, 35% of the Original Subordinated Principal Balance, (c)
commencing with the Distribution Date on the ninth anniversary of the first
Distribution Date, 40% of the Original Subordinated Principal Balance, (d)
commencing with the Distribution Date on the tenth anniversary of the first
Distribution Date, 45% of the Original Subordinated Principal Balance, and (e)
commencing with the Distribution Date on the eleventh anniversary of the first
Distribution Date and thereafter, 50% of the Original Subordinated Principal
Balance.
Senior Termination Date: For each Senior Certificate Group, the
Distribution Date on which the aggregate Class Certificate Balance of the
related Classes of Senior Certificates has been reduced to zero.
Servicer: IndyMac Bank, F.S.B., a federal savings bank, and its successors
and assigns, in its capacity as servicer under this Agreement.
Servicer Advance Date: As to any Distribution Date, 12:30 P.M. Pacific
time on the Business Day preceding that Distribution Date.
Servicing Advances: All customary, reasonable, and necessary "out of
pocket" costs and expenses incurred in the performance by the Servicer of its
servicing obligations, including the cost of
(a) the preservation, restoration, and protection of a Mortgaged
Property,
(b) expenses reimbursable to the Servicer pursuant to Section 3.12 and
any enforcement or judicial proceedings, including foreclosures,
(c) the maintenance and liquidation of any REO Property,
(d) compliance with the obligations under Section 3.10, and
(e) reasonable compensation to the Servicer or its affiliates for
acting as broker in connection with the sale of foreclosed Mortgaged
Properties and for performing certain default management and other similar
services (including appraisal services) in connection with the servicing of
defaulted Mortgage Loans. For purposes of this clause (e), only costs and
expenses incurred in connection with the performance of activities
generally considered to be outside the scope of customary servicing or
master servicing duties shall be treated as Servicing Advances.
Servicing Criteria: The "servicing criteria" set forth in Item 1122(d) of
Regulation AB.
Servicing Fee: As to each Mortgage Loan and any Distribution Date, one
month's interest at the applicable Servicing Fee Rate on the Stated Principal
Balance of the Mortgage Loan as of the Due Date in the month preceding the
month of such Distribution Date (after giving effect to Principal Prepayments
in the Prepayment Period related to that prior Due Date), or, whenever a
payment of interest accompanies a Principal Prepayment in Full made by the
Mortgagor, interest at the Servicing Fee Rate on the Stated Principal Balance
of the Mortgage Loan for the period covered by the payment of interest,
subject to reduction as provided in Section 3.15.
Servicing Fee Rate: For each Mortgage Loan, 0.375%.
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Servicing Officer: Any officer of the Servicer involved in, or responsible
for, the administration and servicing of the Mortgage Loans whose name and
facsimile signature appear on a list of servicing officers furnished to the
Trustee by the Servicer on the Closing Date pursuant to this Agreement, as the
list may from time to time be amended.
Servicing Standard: That degree of skill and care exercised by the
Servicer with respect to mortgage loans comparable to the Mortgage Loans
serviced by the Servicer for itself or others.
Six-Month LIBOR Index: The average of the London interbank offered rates
for six month U.S. dollar deposits in the London market, generally as set forth
in either The Wall Street Journal or some other source generally accepted in the
residential mortgage loan origination business and specified in the related
Mortgage Note or, if such rate ceases to be published in The Wall Street Journal
or becomes unavailable for any reason, then based upon a new index selected by
the Servicer, based on comparable information, in each case, as most recently
announced as of either 45 days prior to, or the first Business Day of the month
immediately preceding the month of, such Adjustment Date.
Soft Prepayment Charges: As to a Mortgage Loan, any charge payable by a
Mortgagor in connection with certain partial Principal Prepayments and all
Principal Prepayments in Full made within the related Prepayment Charge Period
other than as a result of selling the Mortgaged Property, the Soft Prepayment
Charges with respect to each applicable Mortgage Loan so held by the Trust Fund
being identified in the Mortgage Loan Schedule.
Special Hazard Coverage Termination Date: The point in time at which the
Special Hazard Loss Coverage Amount is reduced to zero.
Special Hazard Loss: Any Realized Loss suffered by a Mortgaged Property on
account of direct physical loss, but not including (i) any loss of a type
covered by a hazard insurance policy or a flood insurance policy required to be
maintained with respect to such Mortgaged Property pursuant to Section 3.10 to
the extent of the amount of such loss covered thereby, or (ii) any loss caused
by or resulting from:
(a) normal wear and tear;
(b) fraud, conversion or other dishonest act on the part of the
Trustee, the Servicer or any of their agents or employees (without regard
to any portion of the loss not covered by any errors and omissions policy);
(c) errors in design, faulty workmanship or faulty materials, unless
the collapse of the property or a part thereof ensues and then only for the
ensuing loss;
(d) nuclear or chemical reaction or nuclear radiation or radioactive
or chemical contamination, all whether controlled or uncontrolled, and
whether such loss be direct or indirect, proximate or remote or be in whole
or in part caused by, contributed to or aggravated by a peril covered by
the definition of the term "Special Hazard Loss";
(e) hostile or warlike action in time of peace and war, including
action in hindering, combating or defending against an actual, impending or
expected attack:
1. by any government or sovereign power, de jure or de facto,
or by any authority maintaining or using military, naval or air
forces; or
2. by military, naval or air forces; or
35
3. by an agent of any such government, power, authority or
forces;
(f) any weapon of war employing nuclear fission, fusion or other
radioactive force, whether in time of peace or war; or
(g) insurrection, rebellion, revolution, civil war, usurped power or
action taken by governmental authority in hindering, combating or
defending against such an occurrence, seizure or destruction under
quarantine or customs regulations, confiscation by order of any government
or public authority, or risks of contraband or illegal transportation or
trade.
Special Hazard Loss Coverage Amount: With respect to the first
Distribution Date, $7,149,649. With respect to any Distribution Date after the
first Distribution Date, the lesser of (a) the greatest of (i) 1% of the
aggregate of the principal balances of the Mortgage Loans, (ii) twice the
principal balance of the largest Mortgage Loan and (iii) the aggregate of the
principal balances of all Mortgage Loans secured by Mortgaged Properties located
in the single California postal zip code area having the highest aggregate
principal balance of any such zip code area and (b) the Special Hazard Loss
Coverage Amount as of the Closing Date less the amount, if any, of Special
Hazard Losses allocated to the Certificates since the Closing Date. All
principal balances for the purpose of this definition will be calculated as of
the first day of the calendar month preceding the month of such Distribution
Date after giving effect to Scheduled Payments on the Mortgage Loans then due,
whether or not paid.
Special Hazard Mortgage Loan: A Liquidated Mortgage Loan as to which a
Special Hazard Loss has occurred.
Startup Day: The Closing Date.
Stated Principal Balance: As to any Mortgage Loan and Due Date, the unpaid
principal balance of such Mortgage Loan as of such Due Date, as specified in the
amortization schedule at the time relating thereto (before any adjustment to
such amortization schedule by reason of any moratorium or similar waiver or
grace period) after giving effect to the sum of: (i) the payment of principal
due on such Due Date and irrespective of any delinquency in payment by the
related Mortgagor and (ii) any Liquidation Proceeds allocable to principal
received in the prior calendar month and Principal Prepayments received through
the last day of the Prepayment Period in which the Due Date occurs, in each case
with respect to such Mortgage Loan.
Subcontractor: Any vendor, subcontractor or other Person that is not
responsible for the overall servicing (as "servicing" is commonly understood by
participants in the mortgage-backed securities market) of Mortgage Loans but
performs one or more discrete functions identified in Item 1122(d) of Regulation
AB with respect to the Mortgage Loans under the direction or authority of the
Servicer or the Trustee, as the case may be.
Subordinate Pass-Through Rate: As to any Class of Subordinated
Certificates and the Interest Accrual Period for any Distribution Date, a per
annum rate equal to (a) the sum of the following for each Loan Group: the
product of (x) the Assumed Balance for each Loan Group immediately prior to that
Distribution Date and (y) the Weighted Average Adjusted Net Mortgage Rate of the
Mortgage Loans in that Loan Group divided by (b) the aggregate Class Certificate
Balance of the Subordinated Certificates immediately prior to that Distribution
Date.
Subordinated Certificates: As specified in the Preliminary Statement.
36
Subordinated Percentage: As to any Distribution Date on or prior to the
second Senior Termination Date and any Loan Group, 100% minus the Senior
Percentage for the Senior Certificate Group relating to such Loan Group for such
Distribution Date. As to any Distribution Date after the second Senior
Termination Date, 100% minus the Senior Percentage for such Distribution Date.
Subordinated Prepayment Percentage: As to any Distribution Date and Loan
Group, 100% minus the related Senior Prepayment Percentage for such Distribution
Date.
Subordinated Principal Distribution Amount: As to any Distribution Date
and Loan Group, the sum of the following with respect to each Loan Group: (i)
the Subordinated Percentage of all amounts described in clauses (a) through (d)
of the definition of Principal Amount with respect to such Loan Group and such
Distribution Date, (ii) with respect to any Mortgage Loan in the related Loan
Group that became a Liquidated Mortgage Loan during the calendar month preceding
the month of such Distribution Date, the amount of Liquidation Proceeds
allocable to principal received with respect thereto remaining after application
thereof pursuant to clause (ii) of the definition of Senior Principal
Distribution Amount for that Loan Group, up to the related Subordinated
Percentage of the Stated Principal Balance of such Mortgage Loan and (iii) the
sum of the Subordinated Prepayment Percentage of the amounts described in
clauses (f) and (g) of the definition of Principal Amount with respect to that
Loan Group for such Distribution Date; provided, however, that on any
Distribution Date after the second Senior Termination Date, the Subordinated
Principal Distribution Amount will not be calculated by Loan Group but will
equal the amount calculated pursuant to the formula set forth above based on the
applicable Subordinated Percentage and Subordinated Prepayment Percentage for
the Subordinated Certificates for such Distribution Date with respect to all of
the Mortgage Loans as opposed to the Mortgage Loans only in the related Loan
Group.
Subsequent Recoveries: As to any Distribution Date, with respect to a
Liquidated Mortgage Loan that resulted in a Realized Loss in a prior calendar
month, unexpected amounts received by the Servicer (net of any related expenses
permitted to be reimbursed pursuant to Section 3.09) specifically related to
such Liquidated Mortgage Loan.
Substitute Mortgage Loan: A Mortgage Loan substituted by the Seller for a
Deleted Mortgage Loan that must, on the date of substitution, as confirmed in a
Request for Release, substantially in the form of Exhibit M,
(i) have a Stated Principal Balance, after deduction of the principal
portion of the Scheduled Payment due in the month of substitution, not in excess
of, and not more than 10% less than, the Stated Principal Balance of the Deleted
Mortgage Loan (unless the amount of any shortfall is deposited by the Seller in
the Certificate Account and held for distribution to the Certificateholders on
the related Distribution Date);
(ii) have a Mortgage Rate no lower than and not more than 1% per annum
higher than the Deleted Mortgage Loan;
(iii) have a Maximum Mortgage Rate not more than 1% per annum higher than
and not lower than the Maximum Mortgage Rate of the deleted Mortgage
Loan;
(iv) have the same Mortgage Index and interval between Adjustment Dates
as the deleted Mortgage Loan and a Gross Margin not more than 1% per
annum higher than, and not lower than that of the deleted Mortgage
Loan, provided that any such Substitute Mortgage Loan with a
remaining term to maturity greater than that of the Deleted Mortgage
Loan may not exceed 5% of the Cut-off Date Pool Principal Balance;
37
(vi) have a Loan-to-Value Ratio no higher than that of the Deleted
Mortgage Loan;
(vii) have a remaining term to maturity no greater than (and not more than
one year less than) that of the Deleted Mortgage Loan;
(viii) not be a Cooperative Loan unless the Deleted Mortgage Loan was a
Cooperative Loan; and
(ix) comply with each representation and warranty in Section 2.03.
Substitution Adjustment Amount: As defined in Section 2.03.
Suspension Notification: Notification to the Commission of the suspension
of the Trust Fund's obligation to file reports pursuant to Section 15(d) of the
Exchange Act.
Targeted Balance: Not applicable.
Targeted Principal Classes: As specified in the Preliminary Statement.
Transaction Documents: This Agreement and any other document or agreement
entered into in connection with the Trust Fund, the Certificates or the Mortgage
Loans.
Transfer: Any direct or indirect transfer or sale of any Ownership
Interest in a Residual Certificate.
Transfer Payment Made: As defined in Section 4.03.
Transfer Payment Received: As defined in Section 4.03.
Trust Fund: The corpus of the trust created under this Agreement
consisting of
(i) the Mortgage Loans and all interest and principal received on them
after the Cut-off Date, other than amounts due on the Mortgage Loans by the
Cut-off Date;
(ii) the Certificate Account, the Distribution Account and all amounts
deposited therein pursuant to this Agreement (including amounts received from
the 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;
(v) all proceeds of the conversion, voluntary or involuntary, of any of
the foregoing.
Trustee: Deutsche Bank National Trust Company and its successors and, if a
successor trustee is appointed under this Agreement, the successor.
Trustee Fee: The fee payable to the Trustee on each Distribution Date for
its services as Trustee hereunder, in an amount equal to one-twelfth of the
Trustee Fee Rate multiplied by the aggregate Stated Principal Balance of the
Mortgage Loans as of the Due Date in the month preceding the month of such
Distribution Date (after giving effect to Principal Prepayments in the
Prepayment Period related to that prior Due Date).
38
Trustee Fee Rate: 0.0045% per annum.
The terms "United States," "State," and "International Organization" have
the meanings in section 7701 of the Code or successor provisions. A corporation
will not be treated as an instrumentality of the United States or of any State
or political subdivision thereof for these purposes if all of its activities are
subject to tax and, with the exception of the Federal Home Loan Mortgage
Corporation, a majority of its board of directors is not selected by such
government unit.
UCC: The Uniform Commercial Code for the State of New York.
Undercollateralized Group: As defined in Section 4.03.
Underwriter's Exemption: Prohibited Transaction Exemption 2002-41, 67 Fed.
Reg. 54487 (2002) (or any successor thereto), or any substantially similar
administrative exemption granted by the U.S. Department of Labor
United States Person or U.S. Person:
(i) A citizen or resident of the United States;
(ii) a corporation (or entity treated as a corporation for tax purposes)
created or organized in the United States or under the laws of the United States
or of any state thereof, including, for this purpose, the District of Columbia;
(iii) a partnership (or entity treated as a partnership for tax purposes)
organized in the United States or under the laws of the United States or of any
state thereof, including, for this purpose, the District of Columbia (unless
provided otherwise by future Treasury regulations);
(iv) an estate whose income is includible in gross income for United
States income tax purposes regardless of its source; or
(v) a trust, if a court within the United States is able to exercise
primary supervision over the administration of the trust and one or more U.S.
Persons have authority to control all substantial decisions of the trust.
Notwithstanding the last clause of the preceding sentence, to the extent
provided in Treasury regulations, certain trusts in existence on August 20,
1996, and treated as U.S. Persons before that date, may elect to continue to be
U.S. Persons.
U.S.A. Patriot Act: The Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001.
Voting Rights: The portion of the voting rights of all of the Certificates
that is allocated to any Certificate. As of any date of determination, (a) 1% of
all Voting Rights shall be allocated to the Holder of the Class A-R
Certificates, (b) 1% of all Voting Rights shall be allocated to the Holder of
the Class 1-A-X Certificates and (c) the remaining Voting Rights shall be
allocated among Holders of the remaining Classes of Offered Certificates in
proportion to the Certificate Balances of the respective Certificates on the
date.
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Weighted Average Adjusted Net Mortgage Rate: For any Distribution Date and
Loan Group, the average of the Adjusted Net Mortgage Rate of each Mortgage Loan
in that Loan Group, weighted on the basis of its Stated Principal Balance as of
the Due Date in the prior month (after giving effect to Principal Prepayments in
the Prepayment Period related to such prior Due Date).
Weighted Average Initial Adjustment Date: Not applicable.
Withdrawal Date: The 18th day of each month, or if such day is not a
Business Day, the next preceding Business Day.
Section 1.02 Rules of Construction.
Except as otherwise expressly provided in this Agreement or unless the
context clearly requires otherwise
(a) References to designated articles, sections, subsections, exhibits,
and other subdivisions of this Agreement, such as "Section 6.12 (a)," refer to
the designated article, section, subsection, exhibit, or other subdivision of
this Agreement as a whole and to all subdivisions of the designated article,
section, subsection, exhibit, or other subdivision. The words "herein,"
"hereof," "hereto," "hereunder," and other words of similar import refer to this
Agreement as a whole and not to any particular article, section, exhibit, or
other subdivision of this Agreement.
(b) Any term that relates to a document or a statute, rule, or regulation
includes any amendments, modifications, supplements, or any other changes that
may have occurred since the document, statute, rule, or regulation came into
being, including changes that occur after the date of this Agreement.
(c) Any party may execute any of the requirements under this Agreement
either directly or through others, and the right to cause something to be done
rather than doing it directly shall be implicit in every requirement under this
Agreement. Unless a provision is restricted as to time or limited as to
frequency, all provisions under this Agreement are implicitly available and
things may happen from time to time.
(d) The term "including" and all its variations mean "including but not
limited to." Except when used in conjunction with the word "either," the word
"or" is always used inclusively (for example, the phrase "A or B" means "A or B
or both," not "either A or B but not both").
(e) A reference to "a [thing]" or "any [of a thing]" does not imply the
existence or occurrence of the thing referred to even though not followed by "if
any," and "any [of a thing]" is any of it. A reference to the plural of anything
as to which there could be either one or more than one does not imply the
existence of more than one (for instance, the phrase "the obligors on a note"
means "the obligor or obligors on a note"). "Until [something occurs]" does not
imply that it must occur, and will not be modified by the word "unless." The
word "due" and the word "payable" are each used in the sense that the stated
time for payment has passed. The word "accrued" is used in its accounting sense,
i.e., an amount paid is no longer accrued. In the calculation of amounts of
things, differences and sums may generally result in negative numbers, but when
the calculation of the excess of one thing over another 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
40
accounting terms in this Agreement are inconsistent with their meanings under
generally accepted accounting principles, the definitions contained in this
Agreement shall control. Capitalized terms used in this Agreement without
definition that are defined in the Uniform Commercial Code are used in this
Agreement as defined in the Uniform Commercial Code.
(g) In the computation of a period of time from a specified date to a
later specified date or an open-ended period, the words "from" and "beginning"
mean "from and including," the word "after" means "from but excluding," the
words "to" and "until" mean "to but excluding," and the word "through" means "to
and including." Likewise, in setting deadlines or other periods, "by" means
"by." The words "preceding," "following," and words of similar import, mean
immediately preceding or following. References to a month or a year refer to
calendar months and calendar years.
(h) Any reference to the enforceability of any agreement against a party
means that it is enforceable, subject as to enforcement against the party, to
applicable bankruptcy, insolvency, reorganization, and other similar laws of
general applicability relating to or affecting creditors' rights and to general
equity principles.
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ARTICLE TWO
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans.
(a) The Seller, concurrently with the execution and delivery of this
Agreement, hereby transfers to the Depositor, without recourse, all the interest
of the Seller in each Mortgage Loan, including all interest and principal
received or receivable by the Seller on each Mortgage Loan after the Cut-off
Date and all interest and principal payments on each Mortgage Loan received
before the Cut-off Date for installments of interest and principal due after the
Cut-off Date but not including payments of principal and interest due by the
Cut-off Date. By the Closing Date, the Seller shall deliver to the Depositor or,
at the Depositor's direction, to the Trustee or other designee of the Depositor,
the Mortgage File for each Mortgage Loan listed in the Mortgage Loan Schedule
(except that, in the case of Mortgage Loans that are Delay Delivery Mortgage
Loans, such delivery may take place within five Business Days of the Closing
Date) as of the Closing Date. The delivery of the Mortgage Files shall be made
against payment by the Depositor of the purchase price, previously agreed to by
the Seller and Depositor, for the Mortgage Loans. With respect to any Mortgage
Loan that does not have a first payment date on or before the Due Date in the
month of the first Distribution Date, the Seller shall deposit into the
Distribution Account on the first Distribution Account Deposit Date an amount
equal to one month's interest at the related Adjusted Mortgage Rate on the
Cut-off Date Principal Balance of such Mortgage Loan. Also on the Closing Date
the Depositor shall deposit $200 into the Certificate Account for the benefit of
the Class P-1 and Class P-2 Certificates.
(b) The Depositor, concurrently with the execution and delivery of this
Agreement, hereby transfers to the Trustee for the benefit of the
Certificateholders, without recourse, all the interest of the Depositor in the
Trust Fund, together with the Depositor's right to require the Seller to cure
any breach of a representation or warranty made in this Agreement by the Seller
or to repurchase or substitute for any affected Mortgage Loan in accordance with
this Agreement.
(c) In connection with the transfer and assignment of each Mortgage Loan,
the Depositor has delivered (or, in the case of the Delay Delivery Mortgage
Loans, will deliver to the Trustee within the time periods specified in the
definition of Delay Delivery Mortgage Loans), for the benefit of the
Certificateholders the following documents or instruments with respect to each
Mortgage Loan so assigned:
(i) The original Mortgage Note, endorsed by manual or
facsimile signature in blank in the following form: "Pay to the
order of _______________ ______________without recourse," with all
intervening endorsements showing a complete chain of endorsement
from the originator to the Person endorsing the Mortgage Note (each
endorsement being sufficient to transfer all interest of the party
so endorsing, as noteholder or assignee thereof, in that Mortgage
Note) or a lost note affidavit for any Lost Mortgage Note from the
Seller stating that the original Mortgage Note was lost or
destroyed, together with a copy of the Mortgage Note.
(ii) Except as provided below and for each Mortgage Loan that
is not a MERS Mortgage Loan, the original recorded Mortgage or a
copy of such Mortgage certified by the Seller as being a true and
complete copy of the Mortgage (or, in the case of a Mortgage for
which the related Mortgaged Property is located in the Commonwealth
of Puerto Rico, a true copy of the Mortgage certified as such by the
applicable notary) and in the case of each MERS Mortgage Loan, the
original Mortgage, noting the presence of the MIN of the Mortgage
Loans and either language indicating that the Mortgage Loan is a MOM
Loan if the Mortgage Loan is a MOM
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Loan or if the Mortgage Loan was not a MOM Loan at origination, the
original Mortgage and the assignment thereof to MERS, with evidence
of recording indicated thereon, or a copy of the Mortgage certified
by the public recording office in which such Mortgage has been
recorded;
(iii) In the case of a Mortgage Loan that is not a MERS
Mortgage Loan, a duly executed assignment of the Mortgage (which may
be included in a blanket assignment or assignments), together with,
except as provided below, all interim recorded assignments of the
mortgage (each assignment, when duly and validly completed, to be in
recordable form and sufficient to effect the assignment of and
transfer to its assignee of the Mortgage to which the assignment
relates). If the related Mortgage has not been returned from the
applicable public recording office, the assignment of the Mortgage
may exclude the information to be provided by the recording office.
The assignment of Mortgage need not be delivered in the case of a
Mortgage for which the related Mortgage Property is located in the
Commonwealth of Puerto Rico.
(iv) The original or copies of each assumption, modification,
written assurance, or substitution agreement.
(v) Except as provided below, the original or duplicate
original lender's title policy and all its riders.
(vi) The originals of the following documents for each
Cooperative Loan:
(A) the Co-op Shares, together with a stock power in
blank;
(B) the executed Security Agreement;
(C) the executed Proprietary Lease;
(D) the executed Recognition Agreement;
(E) the executed UCC-1 financing statement that has
been filed in all places required to perfect the
Seller's interest in the Co-op Shares and the
Proprietary Lease with evidence of recording on
it; and
(F) executed UCC-3 financing statements or other
appropriate UCC financing statements required by
state law, evidencing a complete and unbroken line
from the mortgagee to the Trustee with evidence of
recording thereon (or in a form suitable for
recordation).
In addition, in connection with the assignment of any MERS Mortgage Loan,
the Seller agrees that it will cause, at the Seller's expense, the MERS(R)
System to indicate that the Mortgage Loans sold by the Seller to the Depositor
have been assigned by the Seller to the Trustee in accordance with this
Agreement for the benefit of the Certificateholders by including (or deleting,
in the case of Mortgage Loans that are repurchased in accordance with this
Agreement) in such computer files the information required by the MERS(R) System
to identify the series of the Certificates issued in connection with such
Mortgage Loans. The Seller further agrees that it will not, and will not permit
the Servicer to, and the Servicer agrees that it will not, alter the information
referenced in this paragraph with respect to any Mortgage Loan sold by the
Seller to the Depositor during the term of this Agreement unless and until such
Mortgage Loan is repurchased in accordance with the terms of this Agreement.
43
In the event that in connection with any Mortgage Loan that is not a MERS
Mortgage Loan the Depositor cannot deliver (a) the original recorded Mortgage,
(b) all interim recorded assignments or (c) the lender's title policy (together
with all riders thereto) satisfying the requirements of clause (ii), (iii) or
(v) above, respectively, concurrently with the execution and delivery of this
Agreement because such document or documents have not been returned from the
applicable public recording office in the case of clause (ii) or (iii) above, or
because the title policy has not been delivered to either the Servicer or the
Depositor by the applicable title insurer in the case of clause (v) above, then
the Depositor shall promptly deliver to the Trustee, in the case of clause (ii)
or (iii) above, the original Mortgage or the interim assignment, as the case may
be, with evidence of recording indicated on when it is received from the public
recording office, or a copy of it, certified, if appropriate, by the relevant
recording office and in the case of clause (v) above, the original or a copy of
a written commitment or interim binder or preliminary report of title issued by
the title insurance or escrow company, with the original or duplicate copy
thereof to be delivered to the Trustee upon receipt thereof. The delivery of the
original Mortgage Loan and each interim assignment or a copy of them, certified,
if appropriate, by the relevant recording office, shall not be made later than
one year following the Closing Date, or, in the case of clause (v) above, later
than 120 days following the Closing Date. If the Depositor is unable to deliver
each Mortgage by that date and each interim assignment because any documents
have not been returned by the appropriate recording office, or, in the case of
each interim assignment, because the related Mortgage has not been returned by
the appropriate recording office, the Depositor shall deliver the documents to
the Trustee as promptly as possible upon their receipt and, in any event, within
720 days following the Closing Date.
The Depositor shall forward to the Trustee (a) from time to time
additional original documents evidencing an assumption or modification of a
Mortgage Loan and (b) any other documents required to be delivered by the
Depositor or the Servicer to the Trustee. If the original Mortgage is not
delivered and in connection with the payment in full of the related Mortgage
Loan the public recording office requires the presentation of a "lost
instruments affidavit and indemnity" or any equivalent document, because only a
copy of the Mortgage can be delivered with the instrument of satisfaction or
reconveyance, the Servicer shall execute and deliver the required document to
the public recording office. If a public recording office retains the original
recorded Mortgage or if a Mortgage is lost after recordation in a public
recording office, the Seller shall deliver to the Trustee a copy of the Mortgage
certified by the public recording office to be a true and complete copy of the
original recorded Mortgage.
As promptly as practicable after any transfer of a Mortgage Loan under
this Agreement, and in any event within thirty days after the transfer, the
Trustee shall (i) affix the Trustee's name to each assignment of Mortgage, as
its assignee, and (ii) cause to be delivered for recording in the appropriate
public office for real property records the assignments of the Mortgages to the
Trustee, except that, if the Trustee has not received the information required
to deliver any assignment of a Mortgage for recording, the Trustee shall deliver
it as soon as practicable after receipt of the needed information and in any
event within thirty days.
The Trustee need not record any assignment that relates to a Mortgage Loan
(a) the Mortgaged Property and Mortgage File relating to which are located in
California or (b) in any other jurisdiction (including Puerto Rico) under the
laws of which, as evidenced by an Opinion of Counsel delivered by the Seller (at
the Seller's expense) to the Trustee, recording the assignment is not necessary
to protect the Trustee's and the Certificateholders' interest in the related
Mortgage Loan. The Seller shall deliver such Opinion of Counsel within 90 days
of the Closing Date.
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.
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Notwithstanding anything to the contrary in this Agreement, within five
Business Days after the Closing Date, the Seller shall either
(x) deliver to the Trustee the Mortgage File as required pursuant to
this Section 2.01 for each Delay Delivery Mortgage Loan or
(y) (A) repurchase the Delay Delivery Mortgage Loan or (B)
substitute the Substitute Mortgage Loan for a Delay Delivery
Mortgage Loan, which repurchase or substitution shall be
accomplished in the manner and subject to the conditions in Section
2.03 (treating each such Delay Delivery Mortgage Loan as a Deleted
Mortgage Loan for purposes of such Section 2.03);
provided, however, that if the Seller fails to deliver a Mortgage File for any
Delay Delivery Mortgage Loan within the period specified herein, the Seller
shall use its best reasonable efforts to effect a substitution, rather than a
repurchase of, such Deleted Mortgage Loan and provided further that the cure
period provided for in Section 2.02 or in Section 2.03 shall not apply to the
initial delivery of the Mortgage File for such Delay Delivery Mortgage Loan, but
rather the Seller shall have five (5) Business Days to cure such failure to
deliver. At the end of such period, the Trustee shall send a Delay Delivery
Certification for the Delay Delivery Mortgage Loans delivered during such period
in accordance with the provisions of Section 2.02.
(d) Notwithstanding the foregoing, however, for administrative convenience
and facilitation of servicing and to reduce closing costs, the assignments of
Mortgage shall not be required to be submitted for recording (except with
respect to any Mortgage Loan located in Maryland) unless such failure to record
would, as certified to the Trustee in writing by the Servicer, result in a
withdrawal or a downgrading by any Rating Agency of the rating on any Class of
Certificates; provided, however, that each assignment of Mortgage shall be
submitted for recording by the Seller (at the direction of the Servicer) in
the manner described above, at no expense to the Trust Fund or the Trustee,
upon the earliest to occur of: (i) reasonable direction by the Holders of
Certificates entitled to at least 25% of the Voting Rights, (ii) the
occurrence of a bankruptcy, insolvency or foreclosure relating to the Seller,
(iii) the occurrence of a servicing transfer as described in Section 7.02
hereof and (iv) if the Seller is not the Servicer and with respect to any one
assignment or Mortgage, the occurrence of a bankruptcy, insolvency or
foreclosure relating to the Mortgagor under the related Mortgage.
Notwithstanding the foregoing, if the Servicer is unable to pay the cost of
recording the assignments of Mortgage, such expense shall be paid by the
Trustee and shall be reimbursable out of the Distribution Account.
(e) The Seller agrees to treat the transfer of the Mortgage Loans to the
Depositor as a sale for all tax, accounting, and regulatory purposes.
(f) The Trust Fund does not intend to acquire or hold any Mortgage Loan
that would violate the representations made by the Seller set forth in clause
(27) of Schedule III.
Section 2.02 Acceptance by the Trustee of the Mortgage Loans.
The Trustee acknowledges receipt of the documents identified in the
Initial Certification in the form of Exhibit G-1, and declares that it holds and
will hold such documents and the other documents delivered to it constituting
the Mortgage Files for the Mortgage Loans, and that it holds or will hold such
other assets as are included in the Trust Fund, in trust for the exclusive use
and benefit of all present and future Certificateholders.
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The Trustee acknowledges that it will maintain possession of the related
Mortgage Notes in the State of California, unless otherwise permitted by the
Rating Agencies. The Trustee agrees to execute and deliver on the Closing Date
to the Depositor, the Servicer and the Seller an Initial Certification in the
form of Exhibit G-1. Based on its review and examination, and only as to the
documents identified in such Initial Certification, the Trustee acknowledges
that such documents appear regular on their face and relate to such Mortgage
Loans. The Trustee shall be under no duty or obligation to inspect, review or
examine said documents, instruments, certificates or other papers to determine
that the same are genuine, enforceable or appropriate for the represented
purpose or that they have actually been recorded in the real estate records or
that they are other than what they purport to be on their face.
By the thirtieth day after the Closing Date (or if that day is not a
Business Day, the succeeding Business Day), the Trustee shall deliver to the
Depositor, the Servicer, and the Seller a Delay Delivery Certification with
respect to the Mortgage Loans substantially in the form of Exhibit G-2, with any
applicable exceptions noted thereon.
By the ninetieth day after the Closing Date (or if that day is not a
Business Day, the succeeding Business Day), the Trustee shall deliver to the
Depositor, the Servicer and the Seller a Final Certification with respect to the
Mortgage Loans in the form of Exhibit H, with any applicable exceptions noted
thereon.
If, in the course of its review, the Trustee finds any document
constituting a part of a Mortgage File that does not meet the requirements of
Section 2.01, the Trustee shall list such as an exception in the Final
Certification. The Trustee shall not make any determination as to whether (i)
any endorsement is sufficient to transfer all interest of the party so
endorsing, as noteholder or assignee thereof, in that Mortgage Note or (ii) any
assignment is in recordable form or is sufficient to effect the assignment of
and transfer to the assignee thereof under the mortgage to which the assignment
relates. The Seller shall promptly correct any defect that materially and
adversely affects the interests of the Certificateholders within 90 days from
the date it was so notified of the defect and, if the Seller does not correct
the defect within that period, the Seller shall either (a) substitute for the
related Mortgage Loan a Substitute Mortgage Loan, which substitution shall be
accomplished in the pursuant Section 2.03, or (b) purchase the Mortgage Loan at
its Purchase Price from the Trustee within 90 days from the date the Seller was
notified of the defect in writing.
If a substitution or purchase of a Mortgage Loan pursuant to this
provision is required because of a delay in delivery of any documents by the
appropriate recording office, or there is a dispute between either the Servicer
or the Seller and the Trustee over the location or status of the recorded
document, then the substitution or purchase shall occur within 720 days from the
Closing Date. In no other case may a substitution or purchase occur more than
540 days from the Closing Date.
Any substitution shall not be effected before the delivery to the Trustee
of the Opinion of Counsel, if required by Section 2.05, and any substitution
shall not be effected before the additional delivery to the Trustee of a Request
for Release substantially in the form of Exhibit N. No substitution is permitted
to be made in any calendar month after the Determination Date for the month.
The Purchase Price for any Mortgage Loan shall be deposited by the Seller
in the Certificate Account by the Distribution Account Deposit Date for the
Distribution Date in the month following the month of repurchase and, upon
receipt of the deposit and certification with respect thereto in the form of
Exhibit N, the Trustee shall release the related Mortgage File to the Seller and
shall execute and deliver at the Seller's request any instruments of transfer or
assignment prepared by the Seller, in each case without recourse, necessary to
vest in the Seller, or a designee, the Trustee's interest in any Mortgage Loan
released pursuant hereto.
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If pursuant to the foregoing provisions the Seller repurchases a Mortgage
Loan that is a MERS Mortgage Loan, the Servicer shall either (i) cause MERS to
execute and deliver an assignment of the Mortgage in recordable form to transfer
the Mortgage from MERS to the Seller and shall cause such Mortgage to be removed
from registration on the MERS(R) System in accordance with MERS' rules and
regulations or (ii) cause MERS to designate on the MERS(R) System the Seller as
the beneficial holder of such Mortgage Loan.
The Trustee shall retain possession and custody of each Mortgage File in
accordance with and subject to the terms and conditions set forth herein. The
Servicer shall promptly deliver to the Trustee, upon the execution or receipt
thereof, the originals of any other documents or instruments constituting the
Mortgage File that come into the possession of the Servicer from time to time.
The obligation of the Seller to substitute for or to purchase any Mortgage
Loan that does not meet the requirements of Section 2.01 shall constitute the
sole remedy respecting the defect available to the Trustee, the Depositor, and
any Certificateholder against the Seller.
Section 2.03 Representations, Warranties, and Covenants of the Seller and
the Servicer.
(a) IndyMac, in its capacities as Seller and Servicer, makes the
representations and warranties in Schedule II, and by this reference
incorporated in this Agreement, to the Depositor and the Trustee, as of the
Closing Date.
(b) The Seller, in its capacity as Seller, makes the representations and
warranties in Schedule III, and by this reference incorporated in this
Agreement, to the Depositor and the Trustee, as of the Closing Date, or if so
specified in Schedule III, as of the Cut-off Date.
(c) Upon discovery by any of the parties hereto of a breach of a
representation or warranty made pursuant to Section 2.03(b) that materially and
adversely affects the interests of the Certificateholders in any Mortgage Loan,
the party discovering such breach shall give prompt notice thereof to the other
parties. Any breach of representations and warranties under clauses (27) and
(32) of Schedule III shall be deemed to affect materially and adversely the
interests of the Certificateholders in the affected Mortgage Loans. The Seller
covenants that within 90 days of the earlier of its discovery or its receipt of
written notice from any party of a breach of any representation or warranty made
pursuant to Section 2.03(b) which materially and adversely affects the interests
of the Certificateholders in any Mortgage Loan, it shall cure such breach in all
material respects, and if such breach is not so cured, shall, (i) if the 90-day
period expires before the second anniversary of the Closing Date, remove the
Mortgage Loan (a "Deleted Mortgage Loan") from the Trust Fund and substitute in
its place a Substitute Mortgage Loan, in accordance with this Section 2.03; or
(ii) repurchase the affected Mortgage Loan or Mortgage Loans from the Trustee at
the Purchase Price in the manner set forth below. Any substitution pursuant to
(i) above shall not be effected before the delivery to the Trustee of the
Opinion of Counsel, if required by Section 2.05, and a Request for Release
substantially in the form of Exhibit N, and the Mortgage File for any Substitute
Mortgage Loan. The Seller shall promptly reimburse the Servicer and the Trustee
for any expenses reasonably incurred by the Servicer or the Trustee in respect
of enforcing the remedies for the breach.
With respect to any Substitute Mortgage Loan or Loans, the Seller shall
deliver to the Trustee for the benefit of the Certificateholders the Mortgage
Note, the Mortgage, the related assignment of the Mortgage, and such other
documents and agreements as are required by Section 2.01, with the Mortgage Note
endorsed and the Mortgage assigned as required by Section 2.01. No substitution
is permitted to be made in any calendar month after the Determination Date for
such month. Scheduled Payments due with respect to Substitute Mortgage Loans in
the month of substitution shall not be part of the Trust Fund and
47
will be retained by the Seller on the next succeeding Distribution Date. For the
month of substitution, distributions to Certificateholders will include the
monthly payment due on any Deleted Mortgage Loan for such month and thereafter
the Seller shall be entitled to retain all amounts received in respect of such
Deleted Mortgage Loan.
The Servicer shall amend the Mortgage Loan Schedule for the benefit of the
Certificateholders to reflect the removal of the Deleted Mortgage Loan and the
substitution of the Substitute Mortgage Loans and the Servicer shall deliver the
amended Mortgage Loan Schedule to the Trustee. Upon the substitution, the
Substitute Mortgage Loans shall be subject to this Agreement in all respects,
and the Seller shall be deemed to have made with respect to the Substitute
Mortgage Loans, as of the date of substitution, the representations and
warranties made pursuant to Section 2.03(b) with respect to the Mortgage Loan.
Upon any substitution and the deposit to the Certificate Account of the amount
required to be deposited therein in connection with the substitution as
described in the following paragraph, the Trustee shall release the Mortgage
File held for the benefit of the Certificateholders relating to the Deleted
Mortgage Loan to the Seller and shall execute and deliver at the Seller's
direction such instruments of transfer or assignment prepared by the Seller, in
each case without recourse, as shall be necessary to vest title in the Seller,
or its designee, the Trustee's interest in any Deleted Mortgage Loan substituted
for pursuant to this Section 2.03.
For any month in which the Seller substitutes one or more Substitute
Mortgage Loans for one or more Deleted Mortgage Loans, the Servicer will
determine the amount (if any) by which the aggregate principal balance of all
such Substitute Mortgage Loans as of the date of substitution is less than the
aggregate Stated Principal Balance of all such Deleted Mortgage Loans (after
application of the scheduled principal portion of the monthly payments due in
the month of substitution). The amount of such shortage (the "Substitution
Adjustment Amount") plus, if the Seller is not the Servicer, an amount equal to
the aggregate of any unreimbursed Advances and Servicer Advances with respect to
such Deleted Mortgage Loans shall be deposited into the Certificate Account by
the Seller by the Distribution Account Deposit Date for the Distribution Date in
the month succeeding the calendar month during which the related Mortgage Loan
became required to be purchased or replaced hereunder. If the Seller repurchases
a Mortgage Loan, the Purchase Price therefor shall be deposited in the
Certificate Account pursuant to Section 3.06 by the Distribution Account Deposit
Date for the Distribution Date in the month following the month during which the
Seller became obligated hereunder to repurchase or replace the Mortgage Loan and
upon such deposit of the Purchase Price and receipt of a Request for Release in
the form of Exhibit N, the Trustee shall release the related Mortgage File held
for the benefit of the Certificateholders to such Person, and the Trustee shall
execute and deliver at such Person's direction such instruments of transfer or
assignment prepared by such Person, in each case without recourse, as shall be
necessary to transfer title from the Trustee. The obligation under this
Agreement of any Person to cure, repurchase, or replace any Mortgage Loan as to
which a breach has occurred and is continuing shall constitute the sole remedy
against the Person respecting the breach available to Certificateholders, the
Depositor, or the Trustee on their behalf.
The representations and warranties made pursuant to this Section 2.03
shall survive delivery of the respective Mortgage Files to the Trustee for the
benefit of the Certificateholders and shall not be waived by the Depositor.
The Seller assigns to the Depositor and the Depositor assigns to the
Trustee all rights the Seller might have under contracts with third parties
relating to early payment defaults on the Mortgage Loans ("EPD Rights") and the
Servicer assumes any related duties as part of its servicing obligations.
Consistent with the Servicing Standard, the Servicer shall attempt to enforce
the EPD rights. If the Servicer's enforcement of the EPD Rights obligates the
Servicer to sell a Mortgage Loan to a third party, the Servicer shall repurchase
the Mortgage Loan at the Purchase Price and sell the Mortgage Loan to the
48
third party, provided however, in no case shall the Servicer be obligated to
repurchase a Mortgage Loan on account of EPD Rights unless and until the
Servicer shall have previously received repurchase payment from a third party.
The Servicer shall deposit into the Certificate Account all amounts received in
connection with the enforcement of EPD Rights, not exceeding the Purchase Price,
with respect to any Mortgage Loan. Any amounts received by the Servicer with
respect a Mortgage Loan in excess of the Purchase Price shall be retained by the
Servicer as additional servicing compensation. The Trustee, upon receipt of
certification from the Servicer of the deposit of the Purchase Price in
connection with a repurchase of a Mortgage Loan and a Request for File Release
from the Servicer, shall release or cause to be released to the purchaser of
such Mortgage Loan the related Mortgage File and shall execute and deliver such
instruments of transfer or assignment prepared by the purchaser of such Mortgage
Loan, in each case without recourse, as shall be necessary to vest in the
purchaser of such Mortgage Loan any Mortgage Loan released pursuant hereto and
the purchaser of such Mortgage Loan shall succeed to all the Trustee's right,
title and interest in and to such Mortgage Loan and all security and documents
related thereto. Such assignment shall be an assignment outright and not for
security. The purchaser of such Mortgage Loan shall thereupon own such Mortgage
Loan, and all security and documents, free of any further obligation to the
Trustee or the Certificateholders with respect thereto.
Section 2.04 Representations and Warranties of the Depositor as to the
Mortgage Loans.
The Depositor represents and warrants to the Trustee with respect to each
Mortgage Loan as of the date of this Agreement or such other date set forth in
this Agreement that as of the Closing Date, and following the transfer of the
Mortgage Loans to it by the Seller, the Depositor had good title to the Mortgage
Loans and the Mortgage Notes were subject to no offsets, defenses, or
counterclaims.
The representations and warranties in this Section 2.04 shall survive
delivery of the Mortgage Files to the Trustee. Upon discovery by the Depositor
or the Trustee of any breach of any of the representations and warranties in
this Section that materially and adversely affects the interest of the
Certificateholders, the party discovering the breach shall give prompt written
notice to the others and to each Rating Agency.
Section 2.05 Delivery of Opinion of Counsel in Connection with
Substitutions.
(a) Notwithstanding any contrary provision of this Agreement, no
substitution pursuant to Section 2.02 or 2.03 shall be made more than 90 days
after the Closing Date unless the Seller delivers to the Trustee an Opinion of
Counsel, which Opinion of Counsel shall not be at the expense of either the
Trustee or the Trust Fund, addressed to the Trustee, to the effect that such
substitution will not (i) result in the imposition of the tax on "prohibited
transactions" on the Trust Fund or contributions after the Startup Date, as
defined in sections 860F(a)(2) and 860G(d) of the Code, respectively or (ii)
cause any REMIC created under this Agreement to fail to qualify as a REMIC at
any time that any Certificates are outstanding.
(b) Upon discovery by the Depositor, the Seller, the Servicer or the
Trustee that any Mortgage Loan does not constitute a "qualified mortgage" within
the meaning of section 860G(a)(3) of the Code, the party discovering such fact
shall promptly (and in any event within five Business Days of discovery) give
written notice thereof to the other parties. In connection therewith, the
Trustee shall require the Seller, at the Seller's option, to either (i)
substitute, if the conditions in Section 2.03(c) with respect to substitutions
are satisfied, a Substitute Mortgage Loan for the affected Mortgage Loan, or
(ii) repurchase the affected Mortgage Loan within 90 days of such discovery in
the same manner as it would a Mortgage Loan for a breach of representation or
warranty made pursuant to Section 2.03. The Trustee shall reconvey to the Seller
the Mortgage Loan to be released pursuant hereto in the same manner, and on the
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same terms and conditions, as it would a Mortgage Loan repurchased for breach of
a representation or warranty contained in Section 2.03.
Section 2.06 Execution and Delivery of Certificates.
The Trustee acknowledges the transfer and assignment to it of the Trust
Fund and, concurrently with such transfer and assignment, has executed and
delivered to or upon the order of the Depositor, the Certificates in authorized
denominations evidencing directly or indirectly the entire ownership of the
Trust Fund. The Trustee agrees to hold the Trust Fund and exercise the rights
referred to above for the benefit of all present and future Holders of the
Certificates.
Section 2.07 REMIC Matters.
The Preliminary Statement sets forth the designations and "latest possible
maturity date" for federal income tax purposes of all interests created under
this Agreement. The "Startup Day" for purposes of the REMIC Provisions shall be
the Closing Date. Each REMIC's fiscal year shall be the calendar year.
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ARTICLE THREE
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01 Servicer to Service Mortgage Loans.
For and on behalf of the Certificateholders, the Servicer shall service
and administer the Mortgage Loans in accordance with this Agreement and the
Servicing Standard.
The Servicer shall not make or permit any modification, waiver, or
amendment of any term of any Mortgage Loan that would cause any REMIC created
under this Agreement to fail to qualify as a REMIC or result in the imposition
of any tax under section 860F(a) or section 860G(d) of the Code.
Without limiting the generality of the foregoing, the Servicer, in its own
name or in the name of the Depositor and the Trustee, is hereby authorized and
empowered by the Depositor and the Trustee, when the Servicer believes it
appropriate in its reasonable judgment, to execute and deliver, on behalf of the
Trustee, the Depositor, the Certificateholders, or any of them, any instruments
of satisfaction or cancellation, or of partial or full release or discharge, and
all other comparable instruments, with respect to the Mortgage Loans, and with
respect to the Mortgaged Properties held for the benefit of the
Certificateholders. The Servicer shall prepare and deliver to the Depositor or
the Trustee any documents requiring execution and delivery by either or both of
them appropriate to enable the Servicer to service and administer the Mortgage
Loans to the extent that the Servicer is not permitted to execute and deliver
such documents pursuant to the preceding sentence. Upon receipt of the
documents, the Depositor or the Trustee shall execute the documents and deliver
them to the Servicer.
The Servicer further is authorized and empowered by the Trustee, on behalf
of the Certificateholders and the Trustee, in its own name, when the Servicer
believes it appropriate in its best judgment to register any Mortgage Loan on
the MERS(R) System, or cause the removal from the registration of any Mortgage
Loan on the MERS(R) System, to execute and deliver, on behalf of the Trustee and
the Certificateholders or any of them, any and all instruments of assignment and
other comparable instruments with respect to such assignment or re-recording of
a Mortgage in the name of MERS, solely as nominee for the Trustee and its
successors and assigns.
In accordance with and to the extent of the Servicing Standard, the
Servicer shall advance funds necessary to effect the payment of taxes and
assessments on the Mortgaged Properties, which advances shall be reimbursable in
the first instance from related collections from the Mortgagors pursuant to
Section 3.07, and further as provided in Section 3.09. The costs incurred by the
Servicer in effecting the timely payments of taxes and assessments on the
Mortgaged Properties and related insurance premiums shall not, for the purpose
of calculating monthly distributions to the Certificateholders, be added to the
Stated Principal Balances of the related Mortgage Loans, notwithstanding that
the Mortgage Loans so permit.
Nothing in this Agreement to the contrary shall limit the Servicer from
undertaking any legal action that it may deem appropriate with respect to the
Mortgage Loans including, without limitation, any rights or causes of action
arising out of the origination of the Mortgage Loans.
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Section 3.02 [Reserved].
Section 3.03 Rights of the Depositor and the Trustee in Respect of the
Servicer.
The Depositor may, but is not obligated to, enforce the obligations of the
Servicer under this Agreement and may, but is not obligated to, perform, or
cause a designee to perform, any defaulted obligation of the Servicer under this
Agreement and in connection with any such defaulted obligation to exercise the
related rights of the Servicer under this Agreement; provided that the Servicer
shall not be relieved of any of its obligations under this Agreement by virtue
of such performance by the Depositor or its designee. Neither the Trustee nor
the Depositor shall have any responsibility or liability for any action or
failure to act by the Servicer nor shall the Trustee or the Depositor be
obligated to supervise the performance of the Servicer under this Agreement or
otherwise.
Section 3.04 [Reserved].
Section 3.05 Trustee to Act as Servicer.
If the Servicer for any reason is no longer the Servicer under this
Agreement (including because of the occurrence or existence of an Event of
Default or termination by the Depositor), the Trustee or its successor shall
assume all of the rights and obligations of the Servicer under this Agreement
arising thereafter (except that the Trustee shall not be
(i) liable for losses of the Servicer pursuant to Section 3.10 or
any acts or omissions of the predecessor Servicer hereunder,
(ii) obligated to make Advances if it is prohibited from doing so by
applicable law,
(iii) obligated to effectuate repurchases or substitutions of
Mortgage Loans hereunder, including repurchases or substitutions pursuant
to Section 2.02 or 2.03,
(iv) responsible for expenses of the Servicer pursuant to Section
2.03, or
(v) deemed to have made any representations and warranties of the
Servicer hereunder). Any assumption shall be subject to Section 7.02.
Notwithstanding anything else in this Agreement to the contrary, in no
event shall the Trustee be liable for any servicing fee or for any differential
in the amount of the Servicing Fee paid under this Agreement and the amount
necessary to induce any successor Servicer to act as successor Servicer under
this Agreement and the transactions provided for in this Agreement.
Section 3.06 Collection of Mortgage Loan Payments; Certificate Account;
Distribution Account.
(a) In accordance with and to the extent of the Servicing Standard, the
Servicer shall make reasonable efforts in accordance with the customary and
usual standards of practice of prudent mortgage servicers to collect all
payments called for under the Mortgage Loans to the extent the procedures are
consistent with this Agreement and any related Required Insurance Policy.
Consistent with the foregoing, the Servicer may in its discretion (i) waive any
late payment charge or, subject to Section 3.20, any Prepayment Charge in
connection with the prepayment of a Mortgage Loan and (ii) extend the due dates
for payments due on a Delinquent Mortgage Loan for a period not greater than 125
days. In connection with a seriously delinquent or defaulted Mortgage Loan, the
Servicer may, consistent with the Servicing
52
Standard, waive, modify or vary any term of that Mortgage Loan (including
modifications that change the Mortgage Rate, forgive the payment of principal or
interest or extend the final maturity date of that Mortgage Loan ), accept
payment from the related Mortgagor of an amount less than the Stated Principal
Balance in final satisfaction of that Mortgage Loan, or consent to the
postponement of strict compliance with any such term or otherwise grant
indulgence to any Mortgagor if in the Servicer's determination such waiver,
modification, postponement or indulgence is not materially adverse to the
interests of the Certificateholders (taking into account any estimated loss that
might result absent such action) and is expected to minimize the loss on such
Mortgage Loan; provided, however, the Servicer shall not initiate new lending to
such Mortgagor through the Trust and cannot, except as provided in the
immediately succeeding sentence, extend the maturity of any Mortgage Loan past
the date on which the final payment is due on the latest maturing Mortgage Loan
as of the Cut-off Date. With respect to no more than 5% of the Mortgage Loans
(measured by aggregate Cut-off Date Principal Balance of the Mortgage Loans),
the Servicer may extend the maturity of a Mortgage Loan past the date on which
the final payment is due on the latest maturing Mortgage Loan as of the Cut-off
Date, but in no event more than one year past such date. In the event of any
such arrangement, the Servicer shall make Advances on the related Mortgage Loan
in accordance with Section 4.01 during the scheduled period in accordance with
the amortization schedule of the Mortgage Loan without modification thereof
because of the arrangements. The Servicer shall not be required to institute or
join in litigation with respect to collection of any payment (whether under a
Mortgage, Mortgage Note, or otherwise or against any public or governmental
authority with respect to a taking or condemnation) if it reasonably believes
that enforcing the provision of the Mortgage or other instrument pursuant to
which the payment is required is prohibited by applicable law. The Servicer
shall not have the discretion to sell any Delinquent or defaulted Mortgage Loan.
(b) [Reserved.]
(c) [Reserved.]
(d) The Servicer shall establish and maintain a Certificate Account into
which the Servicer shall deposit on a daily basis (i) within two Business Days
of receipt (in the case of items (i) through (iii) below) and (2) within one
Business Day of receipt (in the case of all other items), except as otherwise
specified herein, the following payments and collections received by it in
respect of Mortgage Loans after the Cut-off Date (other than in respect of
principal and interest due on the Mortgage Loans by the Cut-off Date) and the
following amounts required to be deposited hereunder:
(i) all payments on account of principal on the Mortgage Loans,
including Principal Prepayments;
(ii) all payments on account of interest on the Mortgage Loans, net
of the Prepayment Interest Excess and of the Servicing Fee;
(iii) all Insurance Proceeds, Subsequent Recoveries and Liquidation
Proceeds, other than proceeds to be applied to the restoration or repair
of the Mortgaged Property or released to the Mortgagor in accordance with
the Servicer's normal servicing procedures;
(iv) any amount required to be deposited by the Servicer pursuant to
Section 3.06(f) in connection with any losses on Permitted Investments;
(v) any amounts required to be deposited by the Servicer pursuant to
Sections 3.10 and 3.12;
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(vi) all Purchase Prices from the Servicer or Seller and all
Substitution Adjustment Amounts;
(vii) all Advances made by the Servicer pursuant to Section 4.01;
(viii) any other amounts required to be deposited under this
Agreement; and
(ix) all Prepayment Charges collected.
In addition, with respect to any Mortgage Loan that is subject to a
buydown agreement, on each Due Date for the Mortgage Loan, in addition to the
monthly payment remitted by the Mortgagor, the Servicer shall cause funds to be
deposited into the Certificate Account in an amount required to cause an amount
of interest to be paid with respect to the Mortgage Loan equal to the amount of
interest that has accrued on the Mortgage Loan from the preceding Due Date at
the Mortgage Rate net of the Servicing Fee Rate on that date.
The foregoing requirements for remittance by the Servicer shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of late payment charges or assumption
fees, if collected, need not be remitted by the Servicer. If the Servicer remits
any amount not required to be remitted, it may at any time withdraw that amount
from the Certificate Account, any provision in this Agreement to the contrary
notwithstanding. The withdrawal or direction may be accomplished by delivering
written notice of it to the Trustee or any other institution maintaining the
Certificate Account that describes the amounts deposited in error in the
Certificate Account. The Servicer shall maintain adequate records with respect
to all withdrawals made pursuant to this Section 3.06. All funds deposited in
the Certificate Account shall be held in trust for the Certificateholders until
withdrawn in accordance with Section 3.09.
(e) The Trustee shall establish and maintain the Distribution Account on
behalf of the Certificateholders. The Trustee shall, promptly upon receipt,
deposit in the Distribution Account and retain in the Distribution Account the
following:
(i) the aggregate amount remitted by the Servicer to the Trustee
pursuant to Section 3.09(a);
(ii) any amount deposited by the Servicer pursuant to Section
3.06(f) in connection with any losses on Permitted Investments; and
(iii) any other amounts deposited under this Agreement that are
required to be deposited in the Distribution Account.
If the Servicer remits any amount not required to be remitted, it may at
any time direct the Trustee in writing to withdraw that amount from the
Distribution Account, any provision in this Agreement to the contrary
notwithstanding. The direction may be accomplished by delivering an Officer's
Certificate to the Trustee that describes the amounts deposited in error in the
Distribution Account. All funds deposited in the Distribution Account shall be
held by the Trustee in trust for the Certificateholders until disbursed in
accordance with this Agreement or withdrawn in accordance with Section 3.09. In
no event shall the Trustee incur liability for withdrawals from the Distribution
Account at the direction of the Servicer.
(f) Each institution at which the Certificate Account is maintained shall
invest the funds in such account as directed in writing by the Servicer in
Permitted Investments, which shall mature not later than
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the second Business Day preceding the related Distribution Account Deposit Date
(except that if the Permitted Investment is an obligation of the institution
that maintains the account, then the Permitted Investment shall mature not later
than the Business Day preceding the Distribution Account Deposit Date) and which
shall not be sold or disposed of before its maturity. The funds in the
Distribution Account shall remain uninvested. All such Permitted Investments
shall be made in the name of the Trustee, for the benefit of the
Certificateholders. All income realized from any such investment of funds on
deposit in the Certificate Account shall be for the benefit of the Servicer as
servicing compensation and shall be remitted to it monthly as provided in this
Agreement. The amount of any realized losses on Permitted Investments in the
Certificate Account shall promptly be deposited by the Servicer in the
Certificate Account. The Trustee shall not be liable for the amount of any loss
incurred in respect of any investment or lack of investment of funds held in the
Certificate Account and made in accordance with this Section 3.06.
(g) The Servicer shall give notice to the Trustee, the Seller, each Rating
Agency and the Depositor of any proposed change of the location of the
Certificate Account not later than 30 days and not more than 45 days prior to
any change of this Agreement. The Trustee shall give notice to the Servicer, the
Seller, each Rating Agency and the Depositor of any proposed change of the
location of the Distribution Account not later than 30 days and not more than 45
days prior to any change of this Agreement.
Section 3.07 Collection of Taxes, Assessments and Similar Items; Escrow
Accounts.
(a) To the extent required by the related Mortgage Note and not violative
of current law, the Servicer shall establish and maintain one or more accounts
(each, an "Escrow Account") and deposit and retain therein all collections from
the Mortgagors (or advances) for the payment of taxes, assessments, hazard
insurance premiums or comparable items for the account of the Mortgagors.
Nothing herein shall require the Servicer to compel a Mortgagor to establish an
Escrow Account in violation of applicable law.
(b) Withdrawals of amounts so collected from the Escrow Accounts may be
made only to effect timely payment of taxes, assessments, hazard insurance
premiums, condominium or PUD association dues, or comparable items, to reimburse
(without duplication) the Servicer out of related collections for any payments
made pursuant to Section 3.01 (with respect to taxes and assessments and
insurance premiums) and Section 3.10 (with respect to hazard insurance), to
refund to any Mortgagors any sums determined to be overages, to pay interest, if
required by law or the related Mortgage or Mortgage Note, to Mortgagors on
balances in the Escrow Account or to clear and terminate the Escrow Account at
the termination of this Agreement in accordance with Section 9.01. The Escrow
Accounts shall not be a part of the Trust Fund.
(c) The Servicer shall advance any payments referred to in Section 3.07(a)
that are not timely paid by the Mortgagors or advanced by the Servicer on the
date when the tax, premium or other cost for which such payment is intended is
due, but the Servicer shall be required so to advance only to the extent that
such advances, in the good faith judgment of the Servicer, will be recoverable
by the Servicer out of Insurance Proceeds, Liquidation Proceeds or otherwise.
Section 3.08 Access to Certain Documentation and Information Regarding the
Mortgage Loans.
The Servicer shall afford the Depositor and the Trustee reasonable access
to all records and documentation regarding the Mortgage Loans and all accounts,
insurance information and other matters relating to this Agreement, such access
being afforded without charge, but only upon reasonable request and during
normal business hours at the office designated by the Servicer.
55
Upon reasonable advance notice in writing, the Servicer will provide to
each Certificateholder or Certificate Owner that is a savings and loan
association, bank, or insurance company certain reports and reasonable access to
information and documentation regarding the Mortgage Loans sufficient to permit
the Certificateholder or Certificate Owner to comply with applicable regulations
of the OTS or other regulatory authorities with respect to investment in the
Certificates. The Servicer shall be entitled to be reimbursed by each such
Certificateholder or Certificate Owner for actual expenses incurred by the
Servicer in providing the reports and access.
Section 3.09 Permitted Withdrawals from the Certificate Account and the
Distribution Account.
(a) The Servicer may (and, in the case of clause (ix) below, shall) from
time to time make withdrawals from the Certificate Account for the following
purposes:
(i) to pay to the Servicer (to the extent not previously retained)
the servicing compensation to which it is entitled pursuant to Section
3.15, and to pay to the Servicer, as additional servicing compensation,
earnings on or investment income with respect to funds in or credited to
the Certificate Account;
(ii) to reimburse the Servicer or successor Servicer for the
unreimbursed Advances made by it, such right of reimbursement pursuant to
this subclause (ii) being limited to amounts received on the Mortgage
Loans in respect of which the Advance was made;
(iii) to reimburse the Servicer or successor Servicer for any
Nonrecoverable Advance previously made by it;
(iv) to reimburse the Servicer for Insured Expenses from the related
Insurance Proceeds;
(v) to reimburse the Servicer for (a) unreimbursed Servicing
Advances, the Servicer's right to reimbursement pursuant to this clause
(a) with respect to any Mortgage Loan being limited to amounts received on
the Mortgage Loans that represent late recoveries of the payments for
which the advances were made pursuant to Section 3.01 or Section 3.07, (b)
unreimbursed Servicing Advances made in respect of a Mortgage Loan for
which such Servicing Advances are not recoverable from the Mortgagor and
(c) for unpaid Servicing Fees as provided in Section 3.12;
(vi) to pay to the purchaser, with respect to each Mortgage Loan or
property acquired in respect of such Mortgage Loan that has been purchased
pursuant to Section 2.02, 2.03, or 3.12, all amounts received thereon
after the date of such purchase;
(vii) to reimburse the Seller, the Servicer, or the Depositor for
expenses incurred by any of them and reimbursable pursuant to Section
6.03;
(viii) to withdraw any amount deposited in the Certificate Account
and not required to be deposited in the Certificate Account;
(ix) by the Distribution Account Deposit Date, to withdraw (1) the
Available Funds and the Trustee Fee for the Distribution Date, to the
extent on deposit, and (2) the Prepayment Charges on deposit, and remit
such amount to the Trustee for deposit in the Distribution Account; and
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(x) to clear and terminate the Certificate Account upon termination
of this Agreement pursuant to Section 9.01.
The Servicer shall keep and maintain separate accounting, on a Mortgage
Loan by Mortgage Loan basis, to justify any withdrawal from the Certificate
Account pursuant to subclauses (i), (ii), (iv), (v), and (vi). Before making any
withdrawal from the Certificate Account pursuant to subclause (iii), the
Servicer shall deliver to the Trustee an Officer's Certificate of a Servicing
Officer indicating the amount of any previous Advance determined by the Servicer
to be a Nonrecoverable Advance and identifying the related Mortgage Loans and
their respective portions of the Nonrecoverable Advance.
(b) The Trustee shall withdraw funds from the Distribution Account for
distributions to Certificateholders in the manner specified in this Agreement
(and to withhold from the amounts so withdrawn the amount of any taxes that it
is authorized to withhold pursuant to the third paragraph of Section 8.11). In
addition, the Trustee may from time to time make withdrawals from the
Distribution Account for the following purposes:
(i) to pay to itself the Trustee Fee for the related Distribution
Date;
(ii) to withdraw and return to the Servicer any amount deposited in
the Distribution Account and not required to be deposited therein; and
(iii) to clear and terminate the Distribution Account upon
termination of the Agreement pursuant to Section 9.01.
Section 3.10 Maintenance of Hazard Insurance; Maintenance of Primary
Insurance Policies.
(a) The Servicer shall maintain, for each Mortgage Loan, hazard insurance
with extended coverage in an amount that is at least equal to the lesser of
(i) the maximum insurable value of the improvements securing the Mortgage
Loan and
(ii) the greater of (y) the outstanding principal balance of the Mortgage
Loan and (z) an amount such that the proceeds of the policy are sufficient to
prevent the Mortgagor or the mortgagee from becoming a co-insurer.
Each policy of standard hazard insurance shall contain, or have an
accompanying endorsement that contains, a standard mortgagee clause. Any amounts
collected under the policies (other than the amounts to be applied to the
restoration or repair of the related Mortgaged Property or amounts released to
the Mortgagor in accordance with the Servicer's normal servicing procedures)
shall be deposited in the Certificate Account. Any cost incurred in maintaining
any insurance shall not, for the purpose of calculating monthly distributions to
the Certificateholders or remittances to the Trustee for their benefit, be added
to the principal balance of the Mortgage Loan, notwithstanding that the Mortgage
Loan so permits. Such costs shall be recoverable by the Servicer out of late
payments by the related Mortgagor or out of Liquidation Proceeds to the extent
permitted by Section 3.09. No earthquake or other additional insurance is to be
required of any Mortgagor or maintained on property acquired in respect of a
Mortgage other than pursuant to any applicable laws and regulations in force
that require additional insurance. If the Mortgaged Property is located at the
time of origination of the Mortgage Loan in a federally designated special flood
hazard area and the area is participating in the national flood insurance
program, the Servicer shall maintain flood insurance for the Mortgage Loan. The
flood insurance shall be in an amount equal to the least of (i) the original
principal balance of the related Mortgage Loan, (ii) the
57
replacement value of the improvements that are part of the Mortgaged Property,
and (iii) the maximum amount of flood insurance available for the related
Mortgaged Property under the national flood insurance program.
If the Servicer obtains and maintains a blanket policy insuring against
hazard losses on all of the Mortgage Loans, it shall have satisfied its
obligations in the first sentence of this Section 3.10. The policy may contain a
deductible clause on terms substantially equivalent to those commercially
available and maintained by comparable servicers. If the policy contains a
deductible clause and a policy complying with the first sentence of this Section
3.10 has not been maintained on the related Mortgaged Property, and if a loss
that would have been covered by the required policy occurs, the Servicer shall
deposit in the Certificate Account, without any right of reimbursement, the
amount not otherwise payable under the blanket policy because of the deductible
clause. In connection with its activities as Servicer of the Mortgage Loans, the
Servicer agrees to present, on behalf of itself, the Depositor, and the Trustee
for the benefit of the Certificateholders, claims under any blanket policy.
(b) The Servicer shall not take any action that would result in
non-coverage under any applicable Primary Insurance Policy of any loss that, but
for the actions of the Servicer, would have been covered thereunder. The
Servicer shall not cancel or refuse to renew any Primary Insurance Policy that
is in effect at the date of the initial issuance of the Certificates and is
required to be kept in force hereunder unless the replacement Primary Insurance
Policy for the canceled or non-renewed policy is maintained with a Qualified
Insurer. The Servicer need not maintain any Primary Insurance Policy if
maintaining the Primary Insurance Policy is prohibited by applicable law. The
Servicer agrees, to the extent permitted by applicable law, to effect the timely
payment of the premiums on each Primary Insurance Policy, and any costs not
otherwise recoverable shall be recoverable by the Servicer from the related
liquidation proceeds.
In connection with its activities as Servicer of the Mortgage Loans, the
Servicer agrees to present, on behalf of itself, the Trustee and the
Certificateholders, claims to the insurer under any Primary Insurance Policies
and, in this regard, to take any reasonable action in accordance with the
Servicing Standard necessary to permit recovery under any Primary Insurance
Policies respecting defaulted Mortgage Loans. Any amounts collected by the
Servicer under any Primary Insurance Policies shall be deposited in the
Certificate Account.
Section 3.11 Enforcement of Due-On-Sale Clauses; Assumption Agreements.
(a) Except as otherwise provided in this Section 3.11, when any property
subject to a Mortgage has been conveyed by the Mortgagor, the Servicer shall to
the extent that it has knowledge of the conveyance and in accordance with the
Servicing Standard, enforce any due-on-sale clause contained in any Mortgage
Note or Mortgage, to the extent permitted under applicable law and governmental
regulations, but only to the extent that enforcement will not adversely affect
or jeopardize coverage under any Required Insurance Policy. Notwithstanding the
foregoing, the Servicer is not required to exercise these rights with respect to
a Mortgage Loan if the Person to whom the related Mortgaged Property has been
conveyed or is proposed to be conveyed satisfies the conditions contained in the
Mortgage Note and Mortgage related thereto and the consent of the mortgagee
under the Mortgage Note or Mortgage is not otherwise so required under the
Mortgage Note or Mortgage as a condition to the transfer.
If (i) the Servicer is prohibited by law from enforcing any due-on-sale
clause, (ii) coverage under any Required Insurance Policy would be adversely
affected, (iii) the Mortgage Note does not include a due-on-sale clause, or (iv)
nonenforcement is otherwise permitted hereunder, the Servicer is authorized,
subject to Section 3.11(b), to take or enter into an assumption and modification
agreement from or with the person to whom the property has been or is about to
be conveyed, pursuant to which the person becomes liable under the Mortgage Note
and, unless prohibited by applicable state law, the Mortgagor
58
remains liable thereon. The Mortgage Loan must continue to be covered (if so
covered before the Servicer enters into the agreement) by the applicable
Required Insurance Policies.
The Servicer, subject to Section 3.11(b), is also authorized with the
prior approval of the insurers under any Required Insurance Policies to enter
into a substitution of liability agreement with the Person, pursuant to which
the original Mortgagor is released from liability and the Person is substituted
as Mortgagor and becomes liable under the Mortgage Note. Notwithstanding the
foregoing, the Servicer shall not be deemed to be in default under this Section
3.11 because of any transfer or assumption that the Servicer reasonably believes
it is restricted by law from preventing, for any reason whatsoever.
(b) Subject to the Servicer's duty to enforce any due-on-sale clause to
the extent set forth in Section 3.11(a), in any case in which a Mortgaged
Property has been conveyed to a Person by a Mortgagor, and the Person is to
enter into an assumption agreement or modification agreement or supplement to
the Mortgage Note or Mortgage that requires the signature of the Trustee, or if
an instrument of release signed by the Trustee is required releasing the
Mortgagor from liability on the Mortgage Loan, the Servicer shall prepare and
deliver to the Trustee for signature and shall direct the Trustee, in writing,
to execute the assumption agreement with the Person to whom the Mortgaged
Property is to be conveyed, and the modification agreement or supplement to the
Mortgage Note or Mortgage or other instruments appropriate to carry out the
terms of the Mortgage Note or Mortgage or otherwise to comply with any
applicable laws regarding assumptions or the transfer of the Mortgaged Property
to the Person. In connection with any such assumption, no material term of the
Mortgage Note may be changed.
In addition, the substitute Mortgagor and the Mortgaged Property must be
acceptable to the Servicer in accordance with its underwriting standards as then
in effect. Together with each substitution, assumption, or other agreement or
instrument delivered to the Trustee for execution by it, the Servicer shall
deliver an Officer's Certificate signed by a Servicing Officer stating that the
requirements of this subsection have been met in connection with such Officer's
Certificate. The Servicer shall notify the Trustee that any substitution or
assumption agreement has been completed by forwarding to the Trustee the
original of the substitution or assumption agreement, which in the case of the
original shall be added to the related Mortgage File and shall, for all
purposes, be considered a part of the Mortgage File to the same extent as all
other documents and instruments constituting a part of the Mortgage File. The
Servicer will retain any fee collected by it for entering into an assumption or
substitution of liability agreement as additional servicing compensation.
Section 3.12 Realization Upon Defaulted Mortgage Loans.
The Servicer shall use reasonable efforts in accordance with the Servicing
Standard to foreclose on or otherwise comparably convert the ownership of assets
securing such of the Mortgage Loans as come into and continue in default and as
to which no satisfactory arrangements can be made for collection of delinquent
payments. In connection with the foreclosure or other conversion, the Servicer
shall follow the Servicing Standard and shall follow the requirements of the
insurer under any Required Insurance Policy. The Servicer shall not be required
to expend its own funds in connection with any foreclosure or towards the
restoration of any property unless it determines (i) that the restoration or
foreclosure will increase the proceeds of liquidation of the Mortgage Loan after
reimbursement to itself of restoration expenses and (ii) that restoration
expenses will be recoverable to it through Liquidation Proceeds (respecting
which it shall have priority for purposes of withdrawals from the Certificate
Account). The Servicer shall be responsible for all other costs and expenses
incurred by it in any foreclosure proceedings. The Servicer is entitled to
reimbursement of such costs and expenses from the liquidation proceeds with
respect to the related Mortgaged Property, as provided in the definition of
Liquidation Proceeds. If the Servicer has knowledge that a Mortgaged Property
that the Servicer is contemplating
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acquiring in foreclosure or by deed in lieu of foreclosure is located within a
one mile radius of any site listed in the Expenditure Plan for the Hazardous
Substance Clean Up Bond Act of 1984 or other site with environmental or
hazardous waste risks known to the Servicer, the Servicer will, before acquiring
the Mortgaged Property, consider the risks and only take action in accordance
with its established environmental review procedures.
With respect to any REO Property, the deed or certificate of sale shall be
taken in the name of the Trustee for the benefit of the Certificateholders, or
its nominee, on behalf of the Certificateholders. The Trustee's name shall be
placed on the title to the REO Property solely as the Trustee hereunder and not
in its individual capacity. The Servicer shall ensure that the title to the REO
Property references the Pooling and Servicing Agreement and the Trustee's
capacity hereunder. Pursuant to its efforts to sell the REO Property, the
Servicer shall either itself or through an agent selected by the Servicer
protect and conserve the REO Property in accordance with the Servicing Standard.
The Servicer shall perform the tax reporting and withholding required by
sections 1445 and 6050J of the Code with respect to foreclosures and
abandonments, the tax reporting required by section 6050H of the Code with
respect to the receipt of mortgage interest from individuals and, if required by
section 6050P of the Code with respect to the cancellation of indebtedness by
certain financial entities, by preparing any required tax and information
returns, in the form required.
If the Trust Fund acquires any Mortgaged Property as aforesaid or
otherwise in connection with a default or imminent default on a Mortgage Loan,
the REO Property shall only be held temporarily, shall be actively marketed for
sale, and the Servicer shall dispose of the Mortgaged Property as soon as
practicable, and in any case before the end of the third calendar year following
the calendar year in which the Trust Fund acquires the property. Notwithstanding
any other provision of this Agreement, no Mortgaged Property acquired by the
Trust Fund shall be rented (or allowed to continue to be rented) or otherwise
used for the production of income by or on behalf of the Trust Fund.
The decision of the Servicer to foreclose on a defaulted Mortgage Loan
shall be subject to a determination by the Servicer that the proceeds of the
foreclosure would exceed the costs and expenses of bringing a foreclosure
proceeding. The proceeds received from the maintenance of any REO Properties,
net of reimbursement to the Servicer for costs incurred (including any property
or other taxes) in connection with maintenance of the REO Properties and net of
unreimbursed Servicing Fees, Advances, and Servicing Advances, shall be applied
to the payment of principal of and interest on the related defaulted Mortgage
Loans (with interest accruing as though the Mortgage Loans were still current
and adjustments, if applicable, to the Mortgage Rate were being made in
accordance with the Mortgage Note) and all such proceeds shall be deemed, for
all purposes in this Agreement, to be payments on account of principal and
interest on the related Mortgage Notes and shall be deposited into the
Certificate Account. To the extent the net proceeds received during any calendar
month exceeds the amount attributable to amortizing principal and accrued
interest at the related Mortgage Rate on the related Mortgage Loan for the
calendar month, the excess shall be considered to be a partial prepayment of
principal of the related Mortgage Loan.
The proceeds from any liquidation of a Mortgage Loan, as well as any
proceeds from an REO Property, will be applied in the following order of
priority: first, to reimburse the Servicer for any related unreimbursed
Servicing Advances or Servicing Fees or for any related unreimbursed Advances,
as applicable; second, to reimburse the Servicer, as applicable, and to
reimburse the Certificate Account for any Nonrecoverable Advances (or portions
thereof) that were previously withdrawn by the Servicer pursuant to Section
3.09(a)(iii) that related to the Mortgage Loan; third, to accrued and unpaid
interest (to the extent no Advance has been made for such amount or any such
Advance has been reimbursed) on the Mortgage Loan or related REO Property, at
the Adjusted Net Mortgage Rate to the Due Date occurring in
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the month in which such amounts are required to be distributed; and fourth, as a
recovery of principal of the Mortgage Loan. The Servicer will retain any Excess
Proceeds from the liquidation of a Liquidated Mortgage Loan as additional
servicing compensation pursuant to Section 3.15.
The Servicer may agree to a modification of any Mortgage Loan at the
request of the related Mortgagor if (i) the modification is in lieu of a
refinancing and (ii) the Servicer purchases that Mortgage Loan from the Trust
Fund as described below. Upon the agreement of the Servicer to modify a Mortgage
Loan in accordance with the preceding sentence, the Servicer shall purchase that
Mortgage Loan and all interest of the Trustee in that Mortgage Loan shall
automatically be deemed transferred and assigned to the Servicer and all
benefits and burdens of ownership thereof, including the right to accrued
interest thereon from the date of purchase and the risk of default thereon,
shall pass to the Servicer. The Servicer shall promptly deliver to the Trustee a
certification of a Servicing Officer to the effect that all requirements of this
paragraph have been satisfied with respect to a Mortgage Loan to be repurchased
pursuant to this paragraph.
The Servicer shall deposit the Purchase Price for any Mortgage Loan
repurchased pursuant to Section 3.12 in the Certificate Account pursuant to
Section 3.06 within one Business Day after the purchase of the Mortgage Loan.
Upon receipt by the Trustee of written notification of any such deposit signed
by a Servicing Officer, the Trustee shall release to the Servicer the related
Mortgage File and shall execute and deliver such instruments of transfer or
assignment, in each case without recourse, as shall be necessary to vest in the
Servicer any Mortgage Loan previously transferred and assigned pursuant hereto.
The Servicer covenants and agrees to indemnify the Trust Fund against any
liability for any "prohibited transaction" taxes and any related interest,
additions, and penalties imposed on the Trust Fund established hereunder as a
result of any modification of a Mortgage Loan effected pursuant to this Section,
or any purchase of a Mortgage Loan by the Servicer in connection with a
modification (but such obligation shall not prevent the Servicer or any other
appropriate Person from contesting any such tax in appropriate proceedings and
shall not prevent the Servicer from withholding payment of such tax, if
permitted by law, pending the outcome of such proceedings). The Servicer shall
have no right of reimbursement for any amount paid pursuant to the foregoing
indemnification, except to the extent that the amount of any tax, interest, and
penalties, together with interest thereon, is refunded to the Trust Fund.
Section 3.13 Trustee to Cooperate; Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the receipt by the
Servicer of a notification that payment in full will be escrowed in a manner
customary for such purposes, the Servicer will immediately notify the Trustee by
delivering a Request for Release substantially in the form of Exhibit N. Upon
receipt of the request, the Trustee shall promptly release the related Mortgage
File to the Servicer, and the Trustee shall at the Servicer's direction execute
and deliver to the Servicer the request for reconveyance, deed of reconveyance,
or release or satisfaction of mortgage or such instrument releasing the lien of
the Mortgage in each case provided by the Servicer, together with the Mortgage
Note with written evidence of cancellation thereon. The Servicer is authorized
to cause the removal from the registration on the MERS System of such Mortgage
and to execute and deliver, on behalf of the Trustee and the Certificateholders
or any of them, any and all instruments of satisfaction or cancellation or of
partial or full release. Expenses incurred in connection with any instrument of
satisfaction or deed of reconveyance shall be chargeable to the related
Mortgagor.
From time to time and as shall be appropriate for the servicing or
foreclosure of any Mortgage Loan, including for such purpose collection under
any policy of flood insurance, any fidelity bond or errors or omissions policy,
or for the purposes of effecting a partial release of any Mortgaged Property
from the lien of the Mortgage or the making of any corrections to the Mortgage
Note or the Mortgage or any of the other documents included in the Mortgage
File, the Trustee shall, upon delivery to the Trustee
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of a Request for Release in the form of Exhibit M signed by a Servicing Officer,
release the Mortgage File to the Servicer or its designee. Subject to the
further limitations set forth below, the Servicer shall cause the Mortgage File
or documents so released to be returned to the Trustee when the need therefor by
the Servicer no longer exists, unless the Mortgage Loan is liquidated and the
proceeds thereof are deposited in the Certificate Account, in which case the
Servicer shall deliver to the Trustee a Request for Release in the form of
Exhibit N, signed by a Servicing Officer.
If the Servicer at any time seeks to initiate a foreclosure proceeding in
respect of any Mortgaged Property as authorized by this Agreement, the Servicer
shall deliver to the Trustee, for signature, as appropriate, any court
pleadings, requests for trustee's sale, or other documents necessary to
effectuate such foreclosure or any legal action brought to obtain judgment
against the Mortgagor on the Mortgage Note or the Mortgage or to obtain a
deficiency judgment or to enforce any other remedies or rights provided by the
Mortgage Note or the Mortgage or otherwise available at law or in equity.
Section 3.14 Documents, Records and Funds in Possession of the Servicer to
be Held for the Trustee.
The Servicer shall account fully to the Trustee for any funds it receives
or otherwise collects as Liquidation Proceeds or Insurance Proceeds in respect
of any Mortgage Loan. All Mortgage Files and funds collected or held by, or
under the control of, the Servicer in respect of any Mortgage Loans, whether
from the collection of principal and interest payments or from Liquidation
Proceeds, including any funds on deposit in the Certificate Account, shall be
held by the Servicer for and on behalf of the Trustee and shall be and remain
the sole and exclusive property of the Trustee, subject to the applicable
provisions of this Agreement. The Servicer also agrees that it shall not create,
incur or subject any Mortgage File or any funds that are deposited in the
Certificate Account, Distribution Account, or any Escrow Account, or any funds
that otherwise are or may become due or payable to the Trustee for the benefit
of the Certificateholders, to any claim, lien, security interest, judgment,
levy, writ of attachment, or other encumbrance, or assert by legal action or
otherwise any claim or right of setoff against any Mortgage File or any funds
collected on, or in connection with, a Mortgage Loan, except, however, that the
Servicer shall be entitled to set off against and deduct from any such funds any
amounts that are properly due and payable to the Servicer under this Agreement.
Section 3.15 Servicing Compensation.
The Servicer may retain or withdraw from the Certificate Account the
Servicing Fee for each Mortgage Loan for the related Distribution Date. If the
Servicer directly services a Mortgage Loan, the Servicer may retain the
Servicing Fee for its own account as compensation for performing services.
Notwithstanding the foregoing, the Servicing Fee payable to the Servicer shall
be reduced by the lesser of the aggregate of the Prepayment Interest Shortfalls
with respect to the Distribution Date and the aggregate Compensating Interest
for the Distribution Date.
Additional servicing compensation in the form of Excess Proceeds,
Prepayment Interest Excess, assumption fees, late payment charges and all income
net of any losses realized from Permitted Investments shall be retained by the
Servicer to the extent not required to be deposited in the Certificate Account
pursuant to Section 3.06. The Servicer shall be required to pay all expenses
incurred by it in connection with its servicing activities hereunder (including
the payment of any premiums for hazard insurance, and any Primary Insurance
Policy and maintenance of the other forms of insurance coverage required by this
Agreement) and shall not be entitled to reimbursement therefor except as
specifically provided in this Agreement.
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Section 3.16 Access to Certain Documentation.
The Servicer shall provide to the OTS and the FDIC and to comparable
regulatory authorities supervising Holders of Certificates and Certificate
Owners and the examiners and supervisory agents of the OTS, the FDIC, and such
other authorities, access to the documentation regarding the Mortgage Loans
required by applicable regulations of the OTS and the FDIC. Access shall be
afforded without charge, but only upon reasonable prior written request and
during normal business hours at the offices designated by the Servicer. Nothing
in this Section 3.16 shall limit the obligation of the Servicer to observe any
applicable law prohibiting disclosure of information regarding the Mortgagors
and the failure of the Servicer to provide access as provided in this Section
3.16 as a result of such obligation shall not constitute a breach of this
Section 3.16.
Section 3.17 Annual Statement as to Compliance.
(a) By March 15 of each year, commencing with 2008, the Servicer shall
deliver to the Trustee via electronic mail (▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇.▇▇▇) and the
Depositor an Officer's Certificate signed by two Servicing Officers stating, as
to each signer thereof, that (i) a review of the activities of the Servicer
during the preceding calendar year (or applicable portion thereof) and of the
performance of the Servicer under this Agreement has been made under such
officer's supervision, and (ii) to the best of such officer's knowledge, based
on the review, the Servicer has fulfilled all its obligations under this
Agreement, in all material respects throughout the year (or applicable portion
thereof), or, if there has been a failure to fulfill any obligation in any
material respect, specifying each failure known to the officer and the nature
and status thereof.
(b) [Reserved].
(c) Copies of such statement shall be provided by the Trustee to any
Certificateholder or Certificate Owner upon request at the Servicer's expense,
provided such statement is delivered by the Servicer to the Trustee.
Section 3.18 Errors and Omissions Insurance; Fidelity Bonds.
The Servicer shall obtain and maintain in force (a) policies of insurance
covering errors and omissions in the performance of its obligations as Servicer
hereunder and (b) a fidelity bond covering its officers, employees, and agents.
Each policy and bond shall, together, comply with the requirements from time to
time of FNMA or FHLMC for persons performing servicing for mortgage loans
purchased by FNMA or FHLMC. If any policy or bond ceases to be in effect, the
Servicer shall obtain a comparable replacement policy or bond from an insurer or
issuer meeting the above requirements as of the date of the replacement.
Section 3.19 Notification of Adjustments.
On each Adjustment Date, the Servicer shall make interest rate adjustments
for each Mortgage Loan in compliance with the requirements of the related
Mortgage and Mortgage Note and applicable regulations. The Servicer shall
execute and deliver the notices required by each Mortgage and Mortgage Note and
applicable regulations regarding interest rate adjustments. The Servicer also
shall provide timely notification to the Trustee of all applicable data and
information regarding such interest rate adjustments and the Servicer's methods
of implementing such interest rate adjustments. Upon the discovery by the
Servicer or the Trustee that the Servicer has failed to adjust or has
incorrectly adjusted a Mortgage Rate or a monthly payment pursuant to the terms
of the related Mortgage Note and Mortgage, the Servicer shall immediately
deposit in the Certificate Account from its own funds the amount of any
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loss caused thereby without reimbursement therefor; provided, however, the
Servicer shall not be liable with respect to any interest rate adjustments made
by any servicer prior to the Servicer.
Section 3.20 Prepayment Charges.
(a) The Servicer will not waive any part of any Prepayment Charge unless
the waiver relates to a default or a reasonably foreseeable default, the
Prepayment Charge would cause an undue hardship to the related borrower, the
Mortgaged Property is sold by the Mortgagor, the collection of any Prepayment
Charge would violate any relevant law or regulation or the waiving of the
Prepayment Charge would otherwise benefit the Trust Fund and it is expected that
the waiver would maximize recovery of total proceeds taking into account the
value of the Prepayment Charge and related Mortgage Loan and doing so is
standard and customary in servicing similar Mortgage Loans (including any waiver
of a Prepayment Charge in connection with a refinancing of a Mortgage Loan that
is related to a default or a reasonably foreseeable default). The Servicer will
not waive a Prepayment Charge in connection with a refinancing of a Mortgage
Loan that is not related to a default or a reasonably foreseeable default.
(b) If a Prepayment Charge is waived other than as permitted by the prior
paragraph, then the Servicer is required to pay the amount of such waived
Prepayment Charge, for the benefit of the Holders of the Class P-1 and Class P-2
Certificates, by depositing such amount into the Distribution Account from its
own funds, without any right of reimbursement therefor, together with and at the
time that the amount prepaid on the related Mortgage Loan is required to be
deposited into the Distribution Account.
(c) The Seller represents and warrants to the Depositor and the Trustee,
as of the Closing Date, that the information in the Prepayment Charge Schedule
(including the attached prepayment charge summary) is complete and accurate in
all material respects at the dates as of which the information is furnished and
each Prepayment Charge is permissible and enforceable in accordance with its
terms under applicable state law, except as the enforceability thereof is
limited due to acceleration in connection with a foreclosure or other
involuntary payment.
(d) Upon discovery by the Servicer or a Responsible Officer of the Trustee
of a breach of the foregoing clause (c) that materially and adversely affects
the right of the Holders of the Class P-1 and Class P-2 Certificates to any
Prepayment Charge, the party discovering the breach shall give prompt written
notice to the other parties. Within 60 days of the earlier of discovery by the
Servicer or receipt of notice by the Servicer of breach, the Servicer shall cure
the breach in all material respects or shall pay into the Certificate Account
the amount of the Prepayment Charge that would otherwise be due from the
Mortgagor, less any amount representing such Prepayment Charge previously
collected and paid by the Servicer into the Certificate Account.
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ARTICLE FOUR
DISTRIBUTIONS AND ADVANCES BY THE SERVICER
Section 4.01 Advances.
(a) The Servicer shall determine on or before each Servicer Advance Date
whether it is required to make an Advance pursuant to the definition thereof. If
the Servicer determines it is required to make an Advance, it shall, on or
before the Servicer Advance Date, either (i) deposit into the Certificate
Account an amount equal to the Advance or (ii) make an appropriate entry in its
records relating to the Certificate Account that any Amount Held for Future
Distribution has been used by the Servicer in discharge of its obligation to
make any such Advance. Any funds so applied shall be replaced by the Servicer by
deposit in the Certificate Account no later than the close of business on the
next Servicer Advance Date. The Servicer shall be entitled to be reimbursed from
the Certificate Account for all Advances of its own funds made pursuant to this
Section 4.01 as provided in Section 3.09. The obligation to make Advances with
respect to any Mortgage Loan shall continue if such Mortgage Loan has been
foreclosed or otherwise terminated and the Mortgaged Property has not been
liquidated. The Servicer shall inform the Trustee of the amount of the Advance
to be made on each Servicer Advance Date no later than the second Business Day
before the related Distribution Date.
(b) If the Servicer determines that it will be unable to comply with its
obligation to make the Advances as and when described in the second sentence of
Section 4.01(a), it shall use its best efforts to give written notice thereof to
the Trustee (each such notice an "Advance Notice"; and such notice may be given
by telecopy), not later than 3:00 P.M., New York time, on the Business Day
immediately preceding the related Servicer Advance Date, specifying the amount
that it will be unable to deposit (each such amount an "Advance Deficiency") and
certifying that such Advance Deficiency constitutes an Advance hereunder and is
not a Nonrecoverable Advance. If the Trustee receives a Trustee Advance Notice
on or before 3:00 P.M., New York time on a Servicer Advance Date, the Trustee is
entitled to immediately terminate the Servicer under Section 7.01, and shall,
not later than 3:00 P.M., New York time, on the related Distribution Date,
deposit in the Distribution Account an amount equal to the Advance Deficiency
identified in such Trustee Advance Notice unless it is prohibited from so doing
by applicable law. Notwithstanding the foregoing, the Trustee shall not be
required to make such deposit if the Trustee shall have received written
notification from the Servicer that the Servicer has deposited or caused to be
deposited in the Certificate Account an amount equal to such Advance Deficiency
by 3:00 P.M. New York time on the related Distribution Date. If the Trustee has
not terminated the Servicer, the Servicer shall reimburse the Trustee for the
amount of any Advance (including interest at the Prime Rate on the day of such
reimbursement published in The Wall Street Journal) on such amount, made by the
Trustee pursuant to this Section 4.01(b) not later than the second day following
the related Servicer Advance Date. In the event that the Servicer does not
reimburse the Trustee in accordance with the requirements of the preceding
sentence, the Trustee shall immediately (a) terminate all of the rights and
obligations of the Servicer under this Agreement in accordance with Section 7.01
and (b) subject to the limitations set forth in Section 3.05, assume all of the
rights and obligations of the Servicer hereunder.
(c) The Servicer shall, not later than the close of business on the
Business Day immediately preceding each Servicer Advance Date, deliver to the
Trustee a report (in form and substance reasonably satisfactory to the Trustee)
that indicates (i) the Mortgage Loans with respect to which the Servicer has
determined that the related Scheduled Payments should be advanced and (ii) the
amount of the related Scheduled Payments. The Servicer shall deliver to the
Trustee on the related Servicer Advance Date an Officer's Certificate of a
Servicing Officer indicating the amount of any proposed Advance determined by
the Servicer to be a Nonrecoverable Advance.
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Section 4.02 Priorities of Distribution.
(a) (1) On each Distribution Date, the Trustee shall withdraw the
Available Funds for Loan Group 1 from the Distribution Account and apply such
funds to distributions on the Group 1 Senior Certificates in the following order
and, in each case, to the extent of Available Funds remaining:
(i) concurrently, to each interest-bearing Class of Group 1 Senior
Certificates, an amount allocable to interest equal to the related Class
Optimal Interest Distribution Amount, any shortfall being allocated among
such Classes in proportion to the amount of the Class Optimal Interest
Distribution Amount that would have been distributed in the absence of
such shortfall;
(ii) [reserved];
(iii) concurrently, to each Class of Group 1 Senior Certificates as
follows:
(A) [reserved]; and
(B) on each Distribution Date, the Principal Amount for Loan
Group 1, up to the amount of the related Senior Principal
Distribution Amount for such Distribution Date will be distributed
in the following priority:
(a) to the Class A-R Certificates, until its Class
Certificate Balance is reduced to zero; and
(b) concurrently, to the Class 1-A-1 and Class 1-A-2
Certificates, pro rata, until their respective Class
Certificate Balances are reduced to zero;
(iv) [reserved];
(2) On each Distribution Date, the Trustee shall withdraw the Available
Funds for Loan Group 2 from the Distribution Account and apply such funds to
distributions on the Group 2 Senior Certificates in the following order and, in
each case, to the extent of Available Funds remaining:
(i) concurrently, to each interest-bearing Class of Group 2 Senior
Certificates, an amount allocable to interest equal to the related Class
Optimal Interest Distribution Amount, any shortfall being allocated among
such Classes in proportion to the amount of the Class Optimal Interest
Distribution Amount that would have been distributed in the absence of
such shortfall;
(ii) [reserved];
(iii) concurrently, to each Class of Group 2 Senior Certificates as
follows:
(A) [reserved];
(B) on each Distribution Date, the Principal Amount for Loan
Group 2, up to the amount of the related Senior Principal
Distribution Amount for such Distribution Date will be distributed,
concurrently, to the Class 2-A-1 and Class 2-A-2 Certificates, pro
rata, until their respective Class Certificate Balances are reduced
to zero;
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(3) On each Distribution Date, the Trustee shall withdraw the Available
Funds for Loan Group 3 from the Distribution Account and apply such funds to
distributions on the Group 3 Senior Certificates in the following order and, in
each case, to the extent of Available Funds remaining:
(i) concurrently, to each interest-bearing Class of Group 3 Senior
Certificates, an amount allocable to interest equal to the related Class
Optimal Interest Distribution Amount, any shortfall being allocated among
such Classes in proportion to the amount of the Class Optimal Interest
Distribution Amount that would have been distributed in the absence of
such shortfall;
(ii) [reserved];
(iii) concurrently, to each Class of Group 3 Senior Certificates as
follows:
(A) [reserved];
(B) on each Distribution Date, the Principal Amount for Loan
Group 3, up to the amount of the related Senior Principal
Distribution Amount for such Distribution Date will be distributed
concurrently, to the Class 3-A-1 and Class 3-A-2 Certificates, pro
rata, until their respective Class Certificate Balances are reduced
to zero;
(4) On each Distribution Date, after making the distributions described in
Section 4.02(a)(1), Section 4.02(a)(2) and Section 4.02(a)(3), Available Funds
from each Loan Group remaining will be distributed to the Senior Certificates to
the extent provided in Section 4.03;
(5) On each Distribution Date, Available Funds from each Loan Group
remaining after making the distributions described in Section 4.02(a)(1),
Section 4.02(a)(2), Section 4.02(a)(3) and Section 4.02(a)(4) will be
distributed to the Subordinated Certificates, subject to paragraph 4.02(e)
below, in the following order of priority:
(A) to the Class B-1 Certificates, an amount allocable to
interest equal to the Class Optimal Interest Distribution Amount for
such Class for such Distribution Date;
(B) to the Class B-1 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
until the Class Certificate Balance thereof is reduced to zero;
(C) to the Class B-2 Certificates, an amount allocable to
interest equal to the Class Optimal Interest Distribution Amount for
such Class for such Distribution Date;
(D) to the Class B-2 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
until the Class Certificate Balance thereof is reduced to zero;
(E) to the Class B-3 Certificates, an amount allocable to
interest equal to the Class Optimal Interest Distribution Amount for
such Class for such Distribution Date;
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(F) to the Class B-3 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
until the Class Certificate Balance thereof is reduced to zero;
(G) to the Class B-4 Certificates, an amount allocable to
interest equal to the Class Optimal Interest Distribution Amount for
such Class for such Distribution Date;
(H) to the Class B-4 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
until the Class Certificate Balance thereof is reduced to zero;
(I) to the Class B-5 Certificates, an amount allocable to
interest equal to the Class Optimal Interest Distribution Amount for
such Class for such Distribution Date;
(J) to the Class B-5 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
until the Class Certificate Balance thereof is reduced to zero;
(K) to the Class B-6 Certificates, an amount allocable to
interest equal to the Class Optimal Interest Distribution Amount for
such Class for such Distribution Date; and
(L) to the Class B-6 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
until the Class Certificate Balance thereof is reduced to zero;
(6) [reserved]; and
(7) to the Class A-R Certificates, any remaining funds; provided, that
such amounts shall not include the $200 held in trust for the Class P-1 and
Class P-2 Certificates.
On each Distribution Date, all amounts representing Hard Prepayment
Charges and Soft Prepayment Charges received during the related Prepayment
Period will be distributed to the holders of the Class P-1 and Class P-2
Certificates, respectively. On the Distribution Date immediately following the
expiration of the latest Prepayment Charge Period of the Mortgage Loans, the
$200 held in trust for the Class P Certificates will be distributed $100 to the
Class P-1 Certificates and $100 to the Class P-2 Certificates.
(b) [reserved].
(c) [reserved].
(d) On each Distribution Date, the amount referred to in clause (i) of the
definition of Class Optimal Interest Distribution Amount for each Class of
Certificates for such Distribution Date shall be reduced by (i) the related
Class' pro rata share of Net Prepayment Interest Shortfalls based on (x) with
respect to a Class of Senior Certificates, the related Class Optimal Interest
Distribution Amount and (y) with respect to a Class of Subordinated Certificates
on and prior to the second Senior Termination Date, the related Assumed Interest
Amount for such Distribution Date or after the second Senior Termination Date,
the Class Optimal Interest Distribution Amount for such Distribution Date, in
each case in the
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absence of such Net Prepayment Interest Shortfalls and (ii) the related Class'
Allocable Share of (A) after the Special Hazard Coverage Termination Date, with
respect to each Mortgage Loan in the related Loan Group (or, after the Senior
Credit Support Depletion Date, any Mortgage Loan) that became a Special Hazard
Mortgage Loan during the calendar month preceding the month of such Distribution
Date, the excess of one month's interest at the Adjusted Net Mortgage Rate on
the Stated Principal Balance of such Mortgage Loan as of the Due Date in such
month over the amount of Liquidation Proceeds applied as interest on such
Mortgage Loan with respect to such month, (B) after the Bankruptcy Coverage
Termination Date, with respect to each Mortgage Loan that became subject to a
Bankruptcy Loss during the calendar month preceding the month of such
Distribution Date, the interest portion of the related Debt Service Reduction or
Deficient Valuation, (C) each Relief Act Reduction for the Mortgage Loans in the
related Loan Group (or, after the Senior Credit Support Depletion Date, any
Mortgage Loan) incurred during the calendar month preceding the month of such
Distribution Date and (D) after the Fraud Loss Coverage Termination Date, with
respect to each Mortgage Loan in the related Loan Group (or, after the Senior
Credit Support Depletion Date, any Mortgage Loan) that became a Fraud Loan
during the calendar month preceding the month of such Distribution Date, the
excess of one month's interest at the related Adjusted Net Mortgage Rate on the
Stated Principal Balance of such Mortgage Loan as of the Due Date in such month
over the amount of Liquidation Proceeds applied as interest on such Mortgage
Loan with respect to such month.
(e) Notwithstanding the priority and allocation contained in Section
4.02(a)(5), if, with respect to any Class of Subordinated Certificates, on any
Distribution Date the sum of the related Class Subordination Percentages of such
Class and of all Classes of Subordinated Certificates that have a higher
numerical Class designation than such Class (the "Applicable Credit Support
Percentage") is less than the Original Applicable Credit Support Percentage for
such Class, no distribution of Principal Prepayments on the Mortgage Loans will
be made to any such Classes (the "Restricted Classes") and the amount of such
Principal Prepayments otherwise distributable to the Restricted Classes shall be
distributed to the Classes of Subordinated Certificates having lower numerical
Class designations than such Class, pro rata, based on their respective Class
Certificate Balances immediately prior to such Distribution Date and shall be
distributed in the sequential order set forth in Section 4.02(a)(5).
Notwithstanding the foregoing, the Class of Subordinated Certificates then
outstanding with the lowest numerical class designation shall not be a
Restricted Class.
(f) If the amount of a Realized Loss on a Mortgage Loan in a Loan Group
has been reduced by application of Subsequent Recoveries with respect to such
Mortgage Loan, the amount of such Subsequent Recoveries will be applied
sequentially, in the order of payment priority, to increase the Class
Certificate Balance of each related Class of Certificates to which Realized
Losses have been allocated, but in each case by not more than the amount of
Realized Losses previously allocated to that Class of Certificates pursuant to
Section 4.05. Holders of such Certificates will not be entitled to any payment
in respect of the Class Optimal Interest Distribution Amount on the amount of
such increases for any Interest Accrual Period preceding the Distribution Date
on which such increase occurs. Any such increases shall be applied to the
Certificate Balance of each Certificate of such Class in accordance with its
respective Percentage Interest.
Section 4.03 Cross-Collateralization; Adjustments to Available Funds
(a) On each Distribution Date prior to the earlier of the Senior Credit
Support Depletion Date and the second Senior Termination Date, but after a
Senior Termination Date, the Trustee shall distribute the principal portion of
Available Funds on the Mortgage Loans relating to such Senior Certificates that
will have been paid in full, to the holders of the Senior Certificates of the
other Certificate Groups, pro rata, based on their Class Certificate Balances,
provided, however, that the Trustee shall not make such distribution on such
Distribution
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Date if (a) the Aggregate Subordinated Percentage for such Distribution Date is
greater than or equal to 200% of such Aggregate Subordinated Percentage as of
the Closing Date and (b) the average Stated Principal Balance of the Mortgage
Loans in each Loan Group delinquent 60 days or more over the last six months, as
a percentage of the aggregate Class Certificate Balance of the Subordinated
Certificates, is less than 50%.
(b) If on any Distribution Date the Class Certificate Balance of the
Senior Certificates in a Loan Group is greater than the aggregate Stated
Principal Balance of the Mortgage Loans in such Loan Group (each, an
"Undercollateralized Group"), then the Trustee shall reduce the Available Funds
of the other Loan Group(s) that are not undercollateralized (each, an
"Overcollateralized Group"), as follows:
(i) to add to the Available Funds of the Undercollateralized Group
an amount equal to the lesser of (a) one month's interest on the Transfer
Payment Received of the Undercollateralized Group at the Weighted Average
Adjusted Net Mortgage Rate applicable to the Undercollateralized Group and
(b) Available Funds of the Overcollateralized Group(s) remaining after
making distributions to the Certificates of the Overcollateralized
Group(s) on such Distribution Date pursuant to Section 4.02; and
(ii) to the Senior Certificates of the Undercollateralized Group, to
the extent of the principal portion of Available Funds of the
Overcollateralized Group(s) remaining after making distributions to the
Senior Certificates of the Overcollateralized Group(s) on such
Distribution Date pursuant to Section 4.02, until the Class Certificate
Balance of the Senior Certificates of such Undercollateralized Group
equals the aggregate Stated Principal Balance of the Mortgage Loans in the
related Loan Group.
The portion of the payment received by the Undercollateralized Group
allocable to principal is referred to as a "Transfer Payment Received." The
portion of the payment made by the Overcollateralized Group allocable to
principal is referred to as a "Transfer Payment Made."
If more than one Overcollateralized Group exists on any Distribution Date,
reductions in the Available Funds of such Overcollateralized Groups to make
payments required to be made pursuant to this Section 4.03 on such Distribution
Date shall be made pro rata, based on the amount of remaining Available Funds
for each such Overcollateralized Group. If more than one Undercollateralized
Group exists on any Distribution Date, the payments required to be made pursuant
to this Section 4.03 on such Distribution Date shall be made pro rata, based on
the amount of payments to be made to the Undercollateralized Groups.
Section 4.04 [Reserved].
Section 4.05 Allocation of Realized Losses.
(a) On or prior to each Determination Date, the Trustee shall determine
the total amount of Realized Losses, including Excess Losses, with respect to
each related Distribution Date.
Realized Losses with respect to any Distribution Date shall be allocated
as follows:
(i) [reserved]; and
(A) any Realized Loss (other than any Excess Loss) on the Mortgage
Loans in a Loan Group shall be allocated first to the Subordinated
Certificates in reverse order of their respective numerical Class
designations (beginning with the Class of Subordinated Certificates then
outstanding with the highest numerical Class designation) until the
respective Class Certificate
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Balance of each such Class is reduced to zero, and second to the Classes
of Senior Certificates of the related Senior Certificate Group as follows:
(1) any Realized Losses, other than Excess Losses, on the Group 1 Mortgage
Loans will be allocated, sequentially, to the Class 1-A-2 and Class 1-A-1
Certificates, in that order, until their respective Class Certificate
Balances are reduced to zero; (2) any Realized Losses, other than Excess
Losses, on the Group 2 Mortgage Loans will be allocated sequentially, to
the Class 2-A-2 and Class 2-A-1 Certificates, in that order, until their
respective Class Certificate Balances are reduced to zero; and (3) any
Realized Losses, other than Excess Losses, on the Group 3 Mortgage Loans
will be allocated sequentially, to the Class 3-A-2 and Class 3-A-1
Certificates, in that order, until their respective Class Certificate
Balances are reduced to zero.
(B) On each Distribution Date, Excess Losses on the Mortgage Loans
in a Loan Group shall be allocated pro rata among the Classes of Senior
Certificates of the related Senior Certificate Group and the Subordinated
Certificates as follows: (i) in the case of the Senior Certificates, the
Senior Percentage of such Excess Losses shall be allocated among the
Classes of Senior Certificates in the related Senior Certificate Group,
pro rata, on the basis of their respective Class Certificate Balances
immediately prior to the related Distribution Date and (ii) in the case of
the Subordinated Certificates, the Subordinated Percentage of such Excess
Loss shall be allocated among the Classes of Subordinated Certificates,
pro rata, based on each Class' share of the Assumed Balance of the related
Loan Group immediately prior to the related Distribution Date; provided,
however, on any Distribution Date after the second Senior Termination Date
for a Senior Certificate Group, such Excess Losses on the Mortgage Loans
in the related Loan Group shall be allocated to the Senior Certificates
and the Subordinated Certificates on the basis of their respective Class
Certificate Balances immediately prior to such Distribution Date; provided
further, however, on any Distribution Date on and after the Senior Credit
Support Depletion Date, any Excess Loss shall be allocated, pro rata,
among the Classes of Senior Certificates based on their respective Class
Certificate Balances immediately prior to the related Distribution Date.
(b) The Class Certificate Balance of the Class of Subordinated
Certificates then outstanding with the highest numerical Class designation shall
be reduced on each Distribution Date by the amount, if any, by which the
aggregate Class Certificate Balance of all outstanding Classes of Certificates
(after giving effect to the distribution of principal and the allocation of
Realized Losses on such Distribution Date) exceeds the aggregate Stated
Principal Balance of the Mortgage Loans as of the Due Date in the month of such
Distribution Date (after giving effect to Principal Prepayments in the
Prepayment Period related to such Due Date).
(c) Any Realized Loss allocated to a Class of Certificates or any
reduction in the Class Certificate Balance of a Class of Certificates pursuant
to Section 4.05(a) or (b) shall be allocated among the Certificates of such
Class in proportion to their respective Certificate Balances.
(d) Any allocation of Realized Losses to a Certificate or any reduction in
the Certificate Balance of a Certificate pursuant to Section 4.05(a) or (b)
shall be accomplished by reducing the Certificate Balance thereof immediately
following the distributions made on the related Distribution Date in accordance
with the definition of Certificate Balance.
Section 4.06 Monthly Statements to Certificateholders.
Not later than each Distribution Date, the Trustee shall prepare and make
available on its website at ▇▇▇▇▇://▇▇▇.▇▇▇.▇▇.▇▇▇/▇▇▇▇ to each
Certificateholder, the Servicer and the Depositor a statement for the related
distribution of:
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(i) the applicable Record Dates, Interest Accrual Periods and
Determination Dates for calculating distributions for the Distribution
Date;
(ii) the amount of funds received from the Servicer for the
Distribution Date separately identifying amounts received in respect of
the Mortgage Loans and the amount of Advances included in the distribution
on the Distribution Date;
(iii) the Servicing Fee and the amounts of any additional servicing
compensation received by the Servicer attributable to penalties, fees,
Excess Proceeds or other similar charges or fees and items with respect to
the Distribution Date;
(iv) the Trustee Fee for the Distribution Date;
(v) the aggregate amount of expenses paid from amounts on deposit in
the Distribution Account;
(vi) the aggregate amount on deposit in the Distribution Account, as
of the beginning and end of the related Due Period;
(vii) the amount of the distribution allocable to principal,
separately identifying the aggregate amount of any Principal Prepayments
and Liquidation Proceeds included therein;
(viii) the amount of the distribution allocable to interest, any
Class Unpaid Interest Amounts included in the distribution and any
remaining Class Unpaid Interest Amounts after giving effect to the
distribution;
(ix) if the distribution to the Holders of any Class of Certificates
is less than the full amount that would be distributable to them if
sufficient funds were available, the amount of the shortfall and the
allocation of the shortfall between principal and interest;
(x) the aggregate amount of Realized Losses in each Loan Group and
in the aggregate incurred and Subsequent Recoveries, if any, received
during the preceding calendar month and aggregate Realized Losses through
the Distribution Date;
(xi) the Class Certificate Balance or Notional Amount of each Class
of Certificates before and after giving effect to the distribution of
principal on the Distribution Date;
(xii) the Pass-Through Rate for each Class of Certificates with
respect to the Distribution Date;
(xiii) the number of Mortgage Loans in each Loan Group and in the
aggregate and the aggregate Stated Principal Balance of the Mortgage Loans
in each Loan Group and the Pool Stated Principal Balance as the first day
of the related Due Period and the last day of the related Due Period;
(xiv) as of the last day of the related Due Period:
(A) the weighted average mortgage rate of the Mortgage Loans
in each Loan Group and in the aggregate, and
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(B) the weighted average remaining term to maturity of the
Mortgage Loans in each Loan Group and in the aggregate;
(xv) the number and aggregate outstanding Stated Principal Balance
of the Mortgage Loans in each Loan Group and in the aggregate as of the
end of the preceding calendar month:
(A) delinquent (exclusive of Mortgage Loans in foreclosure)
(1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days and
(B) in foreclosure and delinquent (1) 30 to 59 days, (2) 60 to
89 days and (3) 90 or more days,
in each case as of the close of business on the last day of the calendar
month preceding the Distribution Date;
(xvi) for each of the preceding 12 calendar months, or all calendar
months since the Cut-off Date, whichever is less, the aggregate dollar
amount of the Scheduled Payments (A) due on all Outstanding Mortgage Loans
on the Due Date in each such month and (B) delinquent sixty (60) days or
more on the Due Date in each such month;
(xvii) with respect to any Mortgage Loan that became an REO Property
during the preceding calendar month, the loan number and Stated Principal
Balance of the Mortgage Loan as of the close of business on the
Determination Date preceding the Distribution Date;
(xviii) the total number and principal balance of any REO Properties
in each Loan Group and in the aggregate (and market value, if available)
as of the close of business on the Determination Date preceding the
Distribution Date;
(xix) the aggregate amount of Principal Prepayments received during
the related Prepayment Period and the number of Mortgage Loans subject to
such Principal Prepayments;
(xx) the amount of Advances included in the distribution on the
Distribution Date and the aggregate amount of Advances outstanding as of
the close of business on the Distribution Date;
(xxi) the aggregate amount of Advances reimbursed during the related
Due Period, the general source of funds for such reimbursements and the
aggregate amount of Advances outstanding as of the close of business on
the Distribution Date;
(xxii) the aggregate amount of Servicing Advances reimbursed during
the related Due Period, the general source of funds for such
reimbursements and the aggregate amount of Servicing Advances outstanding
as of the close of business on the Distribution Date;
(xxiii) the aggregate number and outstanding Stated Principal
Balance of Mortgage Loans in each Loan Group and in the aggregate
repurchased during the related Due Period due to material breaches of
representations and warranties regarding such Mortgage Loans;
(xxiv) each Senior Prepayment Percentage and Subordinated Prepayment
Percentage for the Distribution Date;
(xxv) each Senior Percentage and Subordinated Percentage for the
Distribution Date;
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(xxvi) the Special Hazard Loss Coverage Amount, the Fraud Loss
Coverage Amount and the Bankruptcy Loss Coverage Amount, in each case as
of the related Determination Date;
(xxvii) Hard Prepayment Charges and Soft Prepayment Charges
collected, waived, and paid by the Servicer;
(xxviii) the aggregate Stated Principal Balance of the Mortgage
Loans in each Loan Group and in the aggregate that became Liquidated
Mortgage Loans in the prior month and since the Cut-off Date (in each case
immediately prior to the Stated Principal Balance being reduced to zero);
(xxix) the Stated Principal Balance of any Mortgage Loan that has
been repurchased by the Servicer in accordance with Section 2.02, 2.03 or
3.12; and
(xxx) the Stated Principal Balance of any Substitute Mortgage Loan
provided by the Seller and the Stated Principal Balance of any Mortgage
Loan that has been replaced by a Substitute Mortgage Loan in accordance
with Section 2.03.
The Trustee's responsibility for disbursing the above information to the
Certificateholders is limited to the availability, timeliness and accuracy of
the information derived from the Servicer.
By each Determination Date the Servicer shall provide to the Trustee in
electronic form the information needed to determine the distributions to be made
pursuant to Section 4.02 and any other information on which the Servicer and the
Trustee mutually agree.
On or before the fifth Business Day following the end of each Prepayment
Period (but in no event later than the third Business Day prior to the related
Distribution Date), the Servicer shall deliver to the Trustee (which delivery
may be by electronic data transmission) a report in substantially the form set
forth as Schedule V.
Within a reasonable period of time after the end of each calendar year,
the Trustee shall cause to be furnished to each Person who at any time during
the calendar year was a Certificateholder, a statement containing the
information set forth in clauses (vii) and (viii) of this Section 4.06
aggregated for such calendar year or applicable portion thereof during which
such Person was a Certificateholder. Such obligation of the Trustee shall be
deemed to have been satisfied to the extent that substantially comparable
information shall be provided by the Trustee pursuant to any requirements of the
Code as from time to time in effect.
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ARTICLE FIVE
THE CERTIFICATES
Section 5.01 The Certificates.
The Certificates shall be substantially in the forms attached hereto as
exhibits. The Certificates shall be issuable in registered form, in the minimum
denominations, integral multiples of $1,000 in excess thereof (except that one
Certificate in each Class may be issued in a different amount which must exceed
the applicable minimum denomination) and aggregate denominations per Class set
forth in the Preliminary Statement.
Subject to Section 9.02 respecting the final distribution on the
Certificates, on each Distribution Date the Trustee shall make distributions to
each Certificateholder of record on the preceding Record Date either (x) by wire
transfer in immediately available funds to the account of such holder at a bank
or other entity having appropriate facilities therefor, if such Holder has so
notified the Trustee at least five Business Days before the related Record Date
or (y) by check mailed by first class mail to such Certificateholder at the
address of such holder appearing in the Certificate Register.
The Trustee shall execute the Certificates by the manual or facsimile
signature of an authorized officer. Certificates bearing the manual or facsimile
signatures of individuals who were, at the time such signatures were affixed,
authorized to sign on behalf of the Trustee shall bind the Trustee,
notwithstanding that such individuals or any of them have ceased to be so
authorized before the countersignature and delivery of any such Certificates or
did not hold such offices at the date of such Certificate. No Certificate shall
be entitled to any benefit under this Agreement, or be valid for any purpose,
unless countersigned by the Trustee by manual signature, and such
countersignature upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly executed and delivered hereunder.
All Certificates shall be dated the date of their countersignature. On the
Closing Date, the Trustee shall countersign the Certificates to be issued at the
direction of the Depositor, or any affiliate thereof.
The Depositor shall provide the Trustee, on a continuous basis with an
adequate inventory of Certificates to facilitate transfers.
Section 5.02 Certificate Register; Registration of Transfer and Exchange
of Certificates.
(a) The Trustee shall maintain, in accordance with Section 5.06, a
Certificate Register for the Trust Fund in which, subject to subsections (b) and
(c) below and to such reasonable regulations as it may prescribe, the Trustee
shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as herein provided. Upon surrender for registration of
transfer of any Certificate, the Trustee shall execute and deliver, in the name
of the designated transferee or transferees, one or more new Certificates of the
same Class and aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged for
other Certificates of the same Class in authorized denominations and evidencing
the same aggregate Percentage Interest upon surrender of the Certificates to be
exchanged at the office or agency of the Trustee. Whenever any Certificates are
so surrendered for exchange, the Trustee shall execute, authenticate, and
deliver the Certificates that the Certificateholder making the exchange is
entitled to receive. A written instrument of transfer in form satisfactory to
the Trustee duly executed by the holder of a Certificate or his attorney duly
authorized in writing shall accompany every Certificate presented or surrendered
for registration of transfer or exchange.
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No service charge to the Certificateholders shall be made for any
registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required.
All Certificates surrendered for registration of transfer or exchange
shall be cancelled and subsequently destroyed by the Trustee in accordance with
the Trustee's customary procedures.
(b) No transfer of a Private Certificate shall be made unless such
transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under the Securities Act and such state securities
laws. If a transfer is to be made in reliance on an exemption from the
Securities Act and such state securities laws, to assure compliance with the
Securities Act and such state securities laws, the Certificateholder desiring to
effect such transfer and such Certificateholder's prospective transferee shall
each certify to the Trustee in writing the facts surrounding the transfer in
substantially the form set forth in Exhibit J (the "Transferor Certificate") and
deliver to the Trustee either (i) a letter in substantially the form of either
Exhibit K (the "Investment Letter") or Exhibit L (the "Rule 144A Letter") or
(ii) at the expense of the transferor, an Opinion of Counsel that the transfer
may be made without registration under the Securities Act. The Depositor shall
provide to any Holder of a Private Certificate and any prospective transferee
designated by that Holder, information regarding the related Certificates and
the Mortgage Loans and any other information necessary to satisfy the condition
to eligibility in Rule 144A(d)(4) for transfer of the Certificate without
registration thereof under the Securities Act pursuant to the registration
exemption provided by Rule 144A. The Trustee and the Servicer shall cooperate
with the Depositor in providing the Rule 144A information referenced in the
preceding sentence, including providing to the Depositor such information
regarding the Certificates, the Mortgage Loans, and other matters regarding the
Trust Fund as the Depositor reasonably requests to meet its obligation under the
preceding sentence. Each Holder of a Private Certificate desiring to effect a
transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor,
the Seller, and the Servicer against any liability that may result if the
transfer is not so exempt or is not made in accordance with such federal and
state laws.
No transfer of an ERISA-Restricted Certificate shall be made unless the
Trustee shall have received either (i) a representation from the transferee of
such Certificate acceptable to and in form and substance satisfactory to the
Trustee (if the Certificate is a Private Certificate, the requirement is
satisfied only by the Trustee's receipt of a representation letter from the
transferee substantially in the form of Exhibit K or Exhibit L, and if the
Certificate is a Residual Certificate, the requirement is satisfied only by the
Trustee's receipt of a representation letter from the transferee substantially
in the form of Exhibit I), to the effect that (x) the transferee is not an
employee benefit plan or arrangement subject to section 406 of ERISA or a plan
subject to section 4975 of the Code, or a person acting on behalf of any such
plan or arrangement or using the assets of any such plan or arrangement to
effect the transfer, or (y) if the ERISA-Restricted Certificate has been the
subject of an ERISA-Qualifying Underwriting, a representation that the
transferee is an insurance company that is purchasing such Certificate with
funds contained in an "insurance company general account" (as such term is
defined in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE
95-60") and that the purchase and holding of such Certificate satisfies the
requirements for exemptive relief under Sections I and III of PTCE 95-60, or
(ii) in the case of any ERISA-Restricted Certificate presented for registration
in the name of an employee benefit plan subject to ERISA, or a plan or
arrangement subject to section 4975 of the Code (or comparable provisions of any
subsequent enactments), or a trustee of any such plan or any other person acting
on behalf of any such plan or arrangement or using such plan's or arrangement's
assets, an Opinion of Counsel satisfactory to the Trustee, which Opinion of
Counsel shall not be an expense of the Trustee, the Servicer or the Trust Fund,
addressed to the Trustee and the Servicer, to the effect that the purchase and
holding of such ERISA-Restricted Certificate will not result in a non-exempt
prohibited transaction under ERISA or section 4975 of the Code and will not
subject the Trustee or the Servicer to any
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obligation in addition to those expressly undertaken in this Agreement or to any
liability. For purposes of the preceding sentence, with respect to an
ERISA-Restricted Certificate that is not a Residual Certificate, if the
appropriate representation letter or Opinion of Counsel referred to in the
preceding sentence is not furnished, the representation in clause (i) above,
shall be deemed to have been made to the Trustee by the transferee's (including
an initial acquirer's) acceptance of the ERISA-Restricted Certificates. If the
representation is violated, or any attempt is made to transfer to a plan or
arrangement subject to section 406 of ERISA or a plan subject to section 4975 of
the Code, or a person acting on behalf of any such plan or arrangement or using
the assets of any such plan or arrangement, without the Opinion of Counsel
described above, the attempted transfer or acquisition shall be void.
To the extent permitted under applicable law (including ERISA), the
Trustee shall be under no liability to any Person for any registration of
transfer of any ERISA-Restricted Certificate that is in fact not permitted by
this Section 5.02(b) or for making any payments due on such Certificate to the
Holder thereof or taking any other action with respect to such Holder under this
Agreement so long as the transfer was registered by the Trustee in accordance
with the foregoing requirements.
(c) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Trustee of any change or impending change in its status as a
Permitted Transferee.
(ii) No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and the Trustee
shall not register the Transfer of any Residual Certificate unless, in
addition to the certificates required to be delivered to the Trustee under
subparagraph (b) above, the Trustee shall have been furnished with an
affidavit (a "Transfer Affidavit") of the initial owner or the proposed
transferee in the form of Exhibit I.
(iii) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (A) to obtain a Transfer Affidavit from
any other Person to whom such Person attempts to Transfer its Ownership
Interest in a Residual Certificate, (B) to obtain a Transfer Affidavit
from any Person for whom such Person is acting as nominee, trustee or
agent in connection with any Transfer of a Residual Certificate and (C)
not to Transfer its Ownership Interest in a Residual Certificate or to
cause the Transfer of an Ownership Interest in a Residual Certificate to
any other Person if it has actual knowledge that such Person is not a
Permitted Transferee.
(iv) Any attempted or purported Transfer of any Ownership Interest
in a Residual Certificate in violation of this Section 5.02(c) shall be
absolutely null and void and shall vest no rights in the purported
Transferee. If any purported transferee shall become a Holder of a
Residual Certificate in violation of this Section 5.02(c), then the last
preceding Permitted Transferee shall be restored to all rights as Holder
thereof retroactive to the date of registration of Transfer of such
Residual Certificate. The Trustee shall be under no liability to any
Person for any registration of Transfer of a Residual Certificate that is
in fact not permitted by Section 5.02(b) and this Section 5.02(c) or for
making any payments due on such Certificate to the Holder thereof or
taking any other action with respect to such Holder under this Agreement
so long as the Transfer was registered after receipt of the related
Transfer Affidavit, Transferor Certificate and either the Rule 144A Letter
or the Investment Letter. The Trustee shall be entitled but not
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obligated to recover from any Holder of a Residual Certificate that was in
fact not a Permitted Transferee at the time it became a Holder or, at such
subsequent time as it became other than a Permitted Transferee, all
payments made on such Residual Certificate at and after either such time.
Any such payments so recovered by the Trustee shall be paid and delivered
by the Trustee to the last preceding Permitted Transferee of such
Certificate.
(v) The Depositor shall use its best efforts to make available, upon
receipt of written request from the Trustee, all information necessary to
compute any tax imposed under section 860E(e) of the Code as a result of a
Transfer of an Ownership Interest in a Residual Certificate to any Holder
who is not a Permitted Transferee.
The restrictions on Transfers of a Residual Certificate set forth in this
Section 5.02(c) shall cease to apply (and the applicable portions of the legend
on a Residual Certificate may be deleted) with respect to Transfers occurring
after delivery to the Trustee of an Opinion of Counsel, which Opinion of Counsel
shall not be an expense of the Trust Fund, the Trustee, the Seller or the
Servicer, to the effect that the elimination of such restrictions will not cause
any REMIC created under this Agreement to fail to qualify as a REMIC at any time
that the Certificates are outstanding or result in the imposition of any tax on
the Trust Fund, a Certificateholder or another Person. Each Person holding or
acquiring any Ownership Interest in a Residual Certificate hereby consents to
any amendment of this Agreement which, based on an Opinion of Counsel furnished
to the Trustee, is reasonably necessary (a) to ensure that the record ownership
of, or any beneficial interest in, a Residual Certificate is not transferred,
directly or indirectly, to a Person that is not a Permitted Transferee and (b)
to provide for a means to compel the Transfer of a Residual Certificate which is
held by a Person that is not a Permitted Transferee to a Holder that is a
Permitted Transferee.
(d) The preparation and delivery of all certificates and opinions referred
to above in this Section 5.02 in connection with transfer shall be at the
expense of the parties to such transfers.
(e) Except as provided below, the Book-Entry Certificates shall at all
times remain registered in the name of the Depository or its nominee and at all
times: (i) registration of the Certificates may not be transferred by the
Trustee except to another Depository; (ii) the Depository shall maintain
book-entry records with respect to the Certificate Owners and with respect to
ownership and transfers of such Book-Entry Certificates; (iii) ownership and
transfers of registration of the Book-Entry Certificates on the books of the
Depository shall be governed by applicable rules established by the Depository;
(iv) the Depository may collect its usual and customary fees, charges and
expenses from its Depository Participants; (v) the Trustee shall deal with the
Depository, Depository Participants and Indirect Participants as representatives
of the Certificate Owners of the Book-Entry Certificates for purposes of
exercising the rights of holders under this Agreement, and requests and
directions for and votes of such representatives shall not be deemed to be
inconsistent if they are made with respect to different Certificate Owners; and
(vi) the Trustee may rely and shall be fully protected in relying upon
information furnished by the Depository with respect to its Depository
Participants and furnished by the Depository Participants with respect to
Indirect Participants and persons shown on the books of such Indirect
Participants as direct or indirect Certificate Owners.
All transfers by Certificate Owners of Book-Entry Certificates shall be
made in accordance with the procedures established by the Depository Participant
or brokerage firm representing the Certificate Owner. Each Depository
Participant shall only transfer Book-Entry Certificates of Certificate Owners it
represents or of brokerage firms for which it acts as agent in accordance with
the Depository's normal procedures.
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If (x) (i) the Depository or the Depositor advises the Trustee in writing
that the Depository is no longer willing or able to properly discharge its
responsibilities as Depository, and (ii) the Trustee or the Depositor is unable
to locate a qualified successor or (y) after the occurrence of an Event of
Default, Certificate Owners representing at least 51% of the Certificate Balance
of the Book-Entry Certificates together advise the Trustee and the Depository
through the Depository Participants in writing that the continuation of a
book-entry system through the Depository is no longer in the best interests of
the Certificate Owners, the Trustee shall notify all Certificate Owners, through
the Depository, of the occurrence of any such event and of the availability of
definitive, fully-registered Certificates (the "Definitive Certificates") to
Certificate Owners requesting the same. Upon surrender to the Trustee of the
related Class of Certificates by the Depository, accompanied by the instructions
from the Depository for registration, the Trustee shall issue the Definitive
Certificates. Neither the Servicer, the Depositor nor the Trustee shall be
liable for any delay in delivery of such instruction and each may conclusively
rely on, and shall be protected in relying on, such instructions. The Servicer
shall provide the Trustee with an adequate inventory of certificates to
facilitate the issuance and transfer of Definitive Certificates. Upon the
issuance of Definitive Certificates all references herein to obligations imposed
upon or to be performed by the Depository shall be deemed to be imposed upon and
performed by the Trustee, to the extent applicable with respect to such
Definitive Certificates and the Trustee shall recognize the Holders of the
Definitive Certificates as Certificateholders hereunder; provided that the
Trustee shall not by virtue of its assumption of such obligations become liable
to any party for any act or failure to act of the Depository.
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificate is surrendered to the Trustee, or (b) the
Trustee receives evidence to its satisfaction of the destruction, loss, or theft
of any Certificate and the Servicer and the Trustee receive the security or
indemnity required by them to hold each of them harmless, then, in the absence
of notice to the Trustee that the Certificate has been acquired by a Protected
Purchaser, and if the requirements of Section 8-406 of the UCC are met and
subject to Section 8-405 of the UCC, the Trustee shall execute, countersign, and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost, or
stolen Certificate, a new Certificate of like Class, tenor, and Percentage
Interest. In connection with the issuance of any new Certificate under this
Section 5.03, the Trustee may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Trustee) connected
therewith. Any replacement Certificate issued pursuant to this Section 5.03
shall constitute complete and indefeasible evidence of ownership, as if
originally issued, whether or not the lost, stolen, or destroyed Certificate is
found at any time.
Section 5.04 Persons Deemed Owners.
The Servicer, the Trustee, and any agent of the Servicer or the Trustee
may treat the Person in whose name any Certificate is registered as the owner of
such Certificate for the purpose of receiving distributions as provided in this
Agreement and for all other purposes whatsoever, and neither the Servicer, the
Trustee nor any agent of the Servicer or the Trustee shall be affected by any
notice to the contrary.
Section 5.05 Access to List of Certificateholders' Names and Addresses.
If three or more Certificateholders and/or Certificate Owners (a) request
such information in writing from the Trustee, (b) state that such
Certificateholders and/or Certificate Owners desire to communicate with other
Certificateholders and/or Certificate Owners with respect to their rights under
this Agreement or under the Certificates, and (c) provide a copy of the
communication which such
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Certificateholders and/or Certificate Owners propose to transmit, or if the
Depositor or Servicer shall request such information in writing from the
Trustee, then the Trustee shall, within ten Business Days after the receipt of
such request, provide the Depositor, the Servicer or such Certificateholders
and/or Certificate Owners at such recipients' expense the most recent list of
the Certificateholders of such Trust Fund held by the Trustee. The Depositor and
every Certificateholder and/or Certificate Owner, by receiving and holding a
Certificate, agree that the Trustee shall not be held accountable because of the
disclosure of any such information as to the list of the Certificateholders
hereunder, regardless of the source from which such information was derived.
Section 5.06 Maintenance of Office or Agency.
The Certificate Registrar will maintain at its expense an office or
offices or agency or agencies in the United States located at DB Services
Tennessee, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Transfer
Unit, where Certificates may be surrendered for registration of transfer or
exchange. The Certificate Registrar will give prompt written notice to the
Certificateholders and to the Trustee (if other than the Certificate Registrar)
of any change in such location of any such office or agency.
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ARTICLE SIX
THE DEPOSITOR AND THE SERVICER
Section 6.01 Respective Liabilities of the Depositor and the Servicer.
The Depositor and the Servicer shall each be liable in accordance with
this Agreement only to the extent of the obligations specifically and
respectively imposed upon and undertaken by them in this Agreement.
Section 6.02 Merger or Consolidation of the Depositor or the Servicer.
The Depositor and the Servicer will each keep in full effect their
existence and their rights and franchises as a corporation and a federal savings
bank, respectively, under the laws of the United States or under the laws of one
of the states thereof and will each obtain and preserve its qualification to do
business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, or any of the Mortgage Loans and to perform
its respective duties under this Agreement.
Any Person into which the Depositor or the Servicer may be merged or
consolidated, or any Person resulting from any merger or consolidation to which
the Depositor or the Servicer shall be a party, or any person succeeding to the
business of the Depositor or the Servicer, shall be the successor of the
Depositor or the Servicer, as the case may be, hereunder, without the execution
or filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding; provided, however, that
the successor or surviving Person to the Servicer shall be qualified to sell
mortgage loans to, and to service mortgage loans on behalf of, FNMA or FHLMC.
As a condition to the effectiveness of any merger or consolidation, at
least 15 calendar days prior to the effective date of any merger or
consolidation of the Servicer, the Servicer shall provide (x) written notice to
the Depositor of any successor pursuant to this Section and (y) in writing and
in form and substance reasonably satisfactory to the Depositor, all information
reasonably requested by the Depositor in order to comply with its reporting
obligation under Item 6.02 of Form 8-K with respect to a replacement Servicer.
Section 6.03 Limitation on Liability of the Depositor, the Seller, the
Servicer, and Others.
None of the Depositor, the Seller, the Servicer or any of the directors,
officers, employees or agents of the Depositor, the Seller or the Servicer shall
be under any liability to the Certificateholders for any action taken or for
refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect the Depositor, the Seller, the Servicer or any such Person
against any breach of representations or warranties made by it herein or protect
the Depositor, the Seller, the Servicer or any such Person from any liability
which would otherwise be imposed by reasons of willful misfeasance, bad faith or
gross negligence in the performance of duties or because of reckless disregard
of obligations and duties hereunder. The Depositor, the Seller, the Servicer,
and any director, officer, employee or agent of the Depositor, the Seller or the
Servicer may rely in good faith on any document of any kind prima facie properly
executed and submitted by any Person respecting any matters arising hereunder.
The Depositor, the Seller, the Servicer, and any director, officer, employee or
agent of the Depositor, the Seller or the Servicer shall be indemnified by the
Trust Fund and held harmless against any loss, liability or expense incurred in
connection with any audit, controversy or judicial proceeding relating to a
governmental taxing authority or any legal action relating to this Agreement or
the Certificates, other than any loss, liability or expense related to any
specific
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Mortgage Loan or Mortgage Loans (except as any such loss, liability or expense
shall be otherwise reimbursable pursuant to this Agreement) and any loss,
liability or expense incurred because of willful misfeasance, bad faith or gross
negligence in the performance of duties hereunder or because of reckless
disregard of obligations and duties hereunder. None of the Depositor, the Seller
or the Servicer shall be under any obligation to appear in, prosecute or defend
any legal action that is not incidental to its respective duties hereunder and
which in its opinion may involve it in any expense or liability; provided,
however, that any of the Depositor, the Seller or the Servicer may in its
discretion undertake any such action that it may deem appropriate in respect of
this Agreement and the rights and duties of the parties hereto and interests of
the Trustee and the Certificateholders hereunder. In such event, the legal
expenses and costs of such action and any liability resulting therefrom shall be
expenses, costs and liabilities of the Trust Fund, and the Depositor, the
Seller, and the Servicer shall be entitled to be reimbursed therefor out of the
Certificate Account.
Section 6.04 Limitation on Resignation of the Servicer.
The Servicer shall not resign from the obligations and duties hereby
imposed on it except (a) upon appointment of a successor servicer and receipt by
the Trustee of a letter from each Rating Agency that such a resignation and
appointment will not result in a downgrading, qualification or withdrawal of the
rating of any of the Certificates or (b) upon determination that its duties
under this Agreement are no longer permissible under applicable law. Any such
determination under clause (b) permitting the resignation of the Servicer shall
be evidenced by an Opinion of Counsel to such effect delivered to the Trustee.
No such resignation shall become effective until the Trustee or a successor
servicer shall have assumed the Servicer's responsibilities, duties, liabilities
and obligations under this Agreement and the Depositor shall have received the
information described in the following sentence. As a condition to the
effectiveness of any such resignation, at least 15 calendar days prior to the
effective date of such resignation, the Servicer shall provide (x) written
notice to the Depositor of any successor pursuant to this Section and (y) in
writing and in form and substance reasonably satisfactory to the Depositor, all
information reasonably requested by the Depositor in order to comply with its
reporting obligation under Item 6.02 of Form 8-K with respect to the resignation
of the Servicer.
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ARTICLE SEVEN
DEFAULT
Section 7.01 Events of Default.
"Event of Default," wherever used in this Agreement, means any one of the
following events:
(a) any failure by the Servicer to deposit in the Certificate Account or
remit to the Trustee any payment required to be made by it under this Agreement,
which failure continues unremedied for five days after the date on which written
notice of the failure has been given to the Servicer by the Trustee or the
Depositor or to the Servicer and the Trustee by the Holders of Certificates of
any Class evidencing not less than 25% of the aggregate Percentage Interests of
the Class; or
(b) any failure by the Servicer to observe or perform in any material
respect any other of the covenants or agreements on the part of the Servicer
contained in this Agreement (except with respect to a failure related to a
Limited Exchange Act Reporting Obligation), which failure materially affects the
rights of Certificateholders and continues unremedied for a period of 60 days
after the date on which written notice of such failure shall have been given to
the Servicer by the Trustee or the Depositor, or to the Servicer and the Trustee
by the Holders of Certificates of any Class evidencing not less than 25% of the
Percentage Interests of the Class; provided that the sixty-day cure period shall
not apply to the initial delivery of the Mortgage File for Delay Delivery
Mortgage Loans nor the failure to repurchase or substitute in lieu thereof; or
(c) a decree or order of a court or agency or supervisory authority having
jurisdiction in the premises for the appointment of a receiver, conservator or
liquidator in any insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Servicer and such decree or order
shall have remained in force undischarged or unstayed for a period of 60
consecutive days; or
(d) the Servicer shall consent to the appointment of a receiver,
conservator or liquidator in any insolvency, readjustment of debt, marshalling
of assets and liabilities or similar proceedings of or relating to the Servicer
or all or substantially all of the property of the Servicer; or
(e) the Servicer shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of, or commence
a voluntary case under, any applicable insolvency or reorganization statute,
make an assignment for the benefit of its creditors, or voluntarily suspend
payment of its obligations; or
(f) the Servicer shall fail (i) to make an Advance on the Servicer Advance
Date or (ii) to reimburse in full the Trustee within two days of the Servicer
Advance Date for any Advance made by the Trustee pursuant to Section 4.01(b).
If an Event of Default described in clauses (a) through (f) of this
Section 7.01 occurs, then, and in each and every such case, so long as such
Event of Default shall not have been remedied, the Trustee may, or at the
direction of the Holders of Certificates of any Class evidencing not less than
66 2/3% of the Percentage Interests of the Class, the Trustee shall by notice in
writing to the Servicer (with a copy to each Rating Agency), terminate all of
the rights and obligations of the Servicer under this Agreement and in the
Mortgage Loans and the proceeds thereof, other than its rights as a
Certificateholder hereunder. In addition, if during the period that the
Depositor is required to file Exchange Act Reports with respect to the Trust
Fund, the Servicer shall fail to observe or perform any of the obligations that
constitute a
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Limited Exchange Act Reporting Obligation or the obligations set forth in
Section 3.17(a) or Section 11.07(a)(i) and (ii), and such failure continues for
the lesser of 10 calendar days or such period in which the applicable Exchange
Act Report can be filed timely (without taking into account any extensions), so
long as such failure shall not have been remedied, the Trustee shall, but only
at the direction of the Depositor, terminate all of the rights and obligations
of the Servicer under this Agreement and in and to the Mortgage Loans and the
proceeds thereof, other than its rights as a Certificateholder hereunder. The
Depositor shall not be entitled to terminate the rights and obligations of the
Servicer if a failure of the Servicer to identify a Subcontractor "participating
in the servicing function" within the meaning of Item 1122 of Regulation AB was
attributable solely to the role or functions of such Subcontractor with respect
to mortgage loans other than the Mortgage Loans.
On and after the receipt by the Servicer of such written notice, all
authority and power of the Servicer hereunder, whether with respect to the
Mortgage Loans or otherwise, shall pass to and be vested in the Trustee. The
Trustee shall make any Advance that the Servicer failed to make subject to
Section 3.05, whether or not the obligations of the Servicer have been
terminated pursuant to this Section. The Trustee is hereby authorized and
empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact
or otherwise, any documents and other instruments, and to do or accomplish all
other acts or things necessary or appropriate to effect the purposes of such
notice of termination, whether to complete the transfer and endorsement or
assignment of the Mortgage Loans and related documents, or otherwise. Unless
expressly provided in such written notice, no such termination shall affect any
obligation of the Servicer to pay amounts owed pursuant to Article VIII. The
Servicer agrees to cooperate with the Trustee in effecting the termination of
the Servicer's responsibilities and rights hereunder, including the transfer to
the Trustee of all cash amounts which shall at the time be credited to the
Certificate Account, or thereafter be received with respect to the Mortgage
Loans. If the Servicer fails to make any Advance required under Section 4.01 of
this Agreement, thereby triggering an Event of Default described in clause (f)
of this Section 7.01, the Trustee shall make such Advance on that Distribution
Date.
Notwithstanding any termination of the activities of the Servicer under
this Agreement, the Servicer shall be entitled to receive, out of any late
collection of a Scheduled Payment on a Mortgage Loan which was due before the
notice terminating such Servicer's rights and obligations as Servicer hereunder
and received after such notice, that portion thereof to which such Servicer
would have been entitled pursuant to Sections 3.09(a)(i) through (viii), and any
other amounts payable to such Servicer hereunder the entitlement to which arose
before the termination of its activities hereunder.
If the Servicer is terminated, the Trustee shall provide the Depositor in
writing and in form and substance reasonably satisfactory to the Depositor, all
information reasonably requested by the Depositor in order to comply with its
reporting obligation under Item 6.02 of Form 8-K with respect to a successor
servicer in the event the Trustee should succeed to the duties of the Servicer
as set forth herein.
Section 7.02 Trustee to Act; Appointment of Successor.
On and after the time the Servicer receives a notice of termination
pursuant to Section 7.01, the Trustee shall, subject to and to the extent
provided in Section 3.05, be the successor to the Servicer in its capacity as
servicer under this Agreement and the transactions set forth or provided for
herein and shall be subject to all the responsibilities, duties and liabilities
relating thereto placed on the Servicer by the terms hereof and applicable law
including the obligation to make Advances pursuant to Section 4.01. As
compensation therefor, the Trustee shall be entitled to all funds relating to
the Mortgage Loans that the Servicer would have been entitled to charge to the
Certificate Account or Distribution Account if the Servicer had continued to act
hereunder, including, if the Servicer was receiving the Servicing Fee, the
Servicing Fee. Notwithstanding the foregoing, if the Trustee has become the
successor to the Servicer in
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accordance with Section 7.01, the Trustee may, if it shall be unwilling to so
act, or shall, if it is prohibited by applicable law from making Advances
pursuant to Section 4.01 or if it is otherwise unable to so act, appoint, or
petition a court of competent jurisdiction to appoint, any established mortgage
loan servicing institution the appointment of which does not adversely affect
the then current rating of the Certificates by each Rating Agency, as the
successor to the Servicer hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of the Servicer hereunder. Any successor
to the Servicer shall be an institution which is a FNMA and FHLMC approved
seller/servicer in good standing, which has a net worth of at least $15,000,000,
which is willing to service the Mortgage Loans and which executes and delivers
to the Depositor and the Trustee an agreement accepting such delegation and
assignment, containing an assumption by such Person of the rights, powers,
duties, responsibilities, obligations and liabilities of the Servicer (other
than liabilities of the Servicer under Section 6.03 incurred before termination
of the Servicer under Section 7.01), with like effect as if originally named as
a party to this Agreement; provided that each Rating Agency acknowledges that
its rating of the Certificates in effect immediately before such assignment and
delegation will not be qualified or reduced as a result of such assignment and
delegation. Pending appointment of a successor to the Servicer hereunder, the
Trustee shall act in such capacity as provided above, subject to section 3.03
and unless prohibited by law. In connection with such appointment and
assumption, the Trustee may make such arrangements for the compensation of such
successor out of payments on Mortgage Loans as it and such successor shall
agree; provided, however, that in no case shall the rate of such compensation
exceed the Servicing Fee Rate. The Trustee and such successor shall take such
action, consistent with this Agreement, as shall be necessary to effectuate any
such succession. Neither the Trustee nor any other successor servicer shall be
deemed to be in default hereunder because of any failure to make, or any delay
in making, any distribution hereunder or any portion thereof or any failure to
perform, or any delay in performing, any duties or responsibilities hereunder,
in either case caused by the failure of the Servicer to deliver or provide, or
any delay in delivering or providing, any cash, information, documents or
records to it.
In connection with the termination or resignation of the Servicer
hereunder, either (i) the successor Servicer, including the Trustee if the
Trustee is acting as successor Servicer, shall represent and warrant that it is
a member of MERS in good standing and shall agree to comply in all material
respects with the rules and procedures of MERS in connection with the servicing
of the Mortgage Loans that are registered with MERS, or (ii) the predecessor
Servicer shall cooperate with the successor Servicer either (x) in causing MERS
to execute and deliver an assignment of Mortgage in recordable form to transfer
the Mortgage from MERS to the Trustee and to execute and deliver such other
notices, documents and other instruments as may be necessary or desirable to
effect a transfer of such Mortgage Loan or servicing of such Mortgage Loan on
the MERS(R) System to the successor Servicer or (y) in causing MERS to designate
on the MERS(R) System the successor Servicer as the servicer of such Mortgage
Loan. The predecessor Servicer shall file or cause to be filed any such
assignment in the appropriate recording office. The successor Servicer shall
cause such assignment to be delivered to the Trustee promptly upon receipt of
the original with evidence of recording thereon or a copy certified by the
public recording office in which such assignment was recorded.
Any successor to the Servicer as servicer shall give notice to the
Mortgagors of such change of servicer and shall, during the term of its service
as servicer, maintain in force the policy or policies that the Servicer is
required to maintain pursuant to this Agreement.
Section 7.03 Notification to Certificateholders.
(a) Upon any termination of or appointment of a successor to the Servicer,
the Trustee shall give prompt written notice thereof to Certificateholders and
to each Rating Agency.
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(b) Within 60 days after the occurrence of any Event of Default, the
Trustee shall transmit by mail to all Certificateholders and each Rating Agency
notice of each such Event of Default hereunder known to the Trustee, unless such
Event of Default shall have been cured or waived.
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ARTICLE EIGHT
CONCERNING THE TRUSTEE
Section 8.01 Duties of the Trustee.
The Trustee, before the occurrence of an Event of Default and after the
curing of all Events of Default that may have occurred, shall undertake to
perform such duties and only such duties as are specifically set forth in this
Agreement. In case an Event of Default has occurred and remains uncured, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee that are specifically required to be furnished pursuant to any provision
of this Agreement shall examine them to determine whether they are in the form
required by this Agreement. The Trustee shall not be responsible for the
accuracy or content of any such resolution, certificate, statement, opinion,
report, document, order, or other instrument.
No provision of this Agreement shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act or
its own willful misconduct; provided, however, that, unless an Event of Default
known to the Trustee has occurred and is continuing,
(a) the duties and obligations of the Trustee shall be determined solely
by the express provisions of this Agreement, the Trustee shall not be liable
except for the performance of the duties and obligations specifically set forth
in this Agreement, no implied covenants or obligations shall be read into this
Agreement against the Trustee, and the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed therein,
upon any certificates or opinions furnished to the Trustee and conforming to the
requirements of this Agreement which it believed in good faith to be genuine and
to have been duly executed by the proper authorities respecting any matters
arising hereunder;
(b) the Trustee shall not be liable for an error of judgment made in good
faith by a Responsible Officer or Responsible Officers of the Trustee, unless it
is finally proven that the Trustee was negligent in ascertaining the pertinent
facts; and
(c) the Trustee shall not be liable with respect to any action taken,
suffered, or omitted to be taken by it in good faith in accordance with the
direction of Holders of Certificates evidencing not less than 25% of the Voting
Rights of Certificates relating to the time, method, and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee under this Agreement. As long as any Voting
Rights are held by parties other than the Seller, its Affiliates, or its agents,
Voting Rights of Certificates held by the Seller, its Affiliates or its agents
as the Seller shall certify to the Trustee upon any entity obtaining such
ownership, will be excluded from participating in such voting arrangements, and
excluded from determining the 25% threshold.
Section 8.02 Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 8.01:
(a) the Trustee may request and rely upon and shall be protected in acting
or refraining from acting upon any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement,
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instrument, opinion, report, notice, request, consent, order, appraisal, bond or
other paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties and the Trustee shall have no
responsibility to ascertain or confirm the genuineness of any signature of any
such party or parties;
(b) the Trustee may consult with counsel, financial advisers or
accountants and the advice of any such counsel, financial advisers or
accountants and any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such Opinion of Counsel;
(c) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Agreement;
(d) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other paper
or document, unless requested in writing so to do by Holders of Certificates
evidencing not less than 25% of the Voting Rights allocated to each Class of
Certificates; provided, however, that no Certificates held by the Seller, the
Depositor or any Affiliate shall be given effect for the purpose of calculating
any such aggregation of Voting Rights;
(e) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
accountants or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agents, accountants or attorneys
appointed with due care by it hereunder;
(f) the Trustee shall not be required to risk or expend its own funds or
otherwise incur any financial liability in the performance of any of its duties
or in the exercise of any of its rights or powers hereunder if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not assured to it;
(g) the Trustee shall not be liable for any loss on any investment of
funds pursuant to this Agreement (other than as issuer of the investment
security);
(h) the Trustee shall not be deemed to have knowledge of an Event of
Default until a Responsible Officer of the Trustee shall have received written
notice thereof;
(i) the Trustee shall be under no obligation to exercise any of the
trusts, rights or powers vested in it by this Agreement or to institute, conduct
or defend any litigation hereunder or in relation hereto at the request, order
or direction of any of the Certificateholders, pursuant to this Agreement,
unless such Certificateholders shall have offered to the Trustee reasonable
security or indemnity satisfactory to the Trustee against the costs, expenses
and liabilities which may be incurred therein or thereby;
(j) the Trustee or its Affiliates are permitted to receive additional
compensation that could be deemed to be in the Trustee's economic self-interest
for (i) serving as investment adviser, administrator, shareholder servicing
agent, custodian or sub-custodian with respect to certain of the Permitted
Investments, (ii) using Affiliates to effect transactions in certain Permitted
Investments and (iii) effecting transactions in certain Permitted Investments.
The Trustee does not guarantee the performance of any Permitted Investment; and
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(k) the Trustee shall not knowingly take any action that would cause the
Trust Fund to fail to qualify as a qualifying special purpose entity.
In order to comply with laws, rules, regulations and executive orders in
effect from time to time applicable to banking institutions, including those
relating to the funding of terrorist activities and money laundering
("Applicable Law"), the Trustee is required to obtain, verify and record certain
information relating to individuals and entities which maintain a business
relationship with the Trustee. Accordingly, each of the parties agrees to
provide to the Trustee upon its request from time to time such identifying
information and documentation as may be available for such party in order to
enable the Trustee to comply with Applicable Law.
Section 8.03 Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates shall be taken as
the statements of the Depositor or the Seller, as the case may be, and the
Trustee assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Agreement or of the
Certificates or of any Mortgage Loan or related document other than with respect
to the Trustee's execution and countersignature of the Certificates. The Trustee
shall not be accountable for the use or application by the Depositor or the
Servicer of any funds paid to the Depositor or the Servicer in respect of the
Mortgage Loans or deposited in or withdrawn from the Certificate Account by the
Depositor or the Servicer.
Except as provided in Section 2.01(c), the Trustee shall have no
responsibility for filing or recording any financing or continuation statement
in any public office at any time or to otherwise perfect or maintain the
perfection of any security interest or lien granted to it hereunder (unless the
Trustee shall have become the successor Servicer). The Trustee makes no
representations as to the validity or sufficiency of this Agreement or of the
Certificates or of any Mortgage Loan or related document or of MERS or the
MERS(R) System other than with respect to the Trustee's execution and
counter-signature of the Certificates.
The Trustee executes the Certificates not in its individual capacity but
solely as Trustee of the Trust Fund created by this Agreement, in the exercise
of the powers and authority conferred and vested in it by this Agreement. Each
of the undertakings and agreements made on the part of the Trustee on behalf of
the Trust Fund in the Certificates is made and intended not as a personal
undertaking or agreement by the Trustee but is made and intended for the purpose
of binding only the Trust Fund.
Section 8.04 Trustee May Own Certificates.
The Trustee in its individual or any other capacity may become the owner
or pledgee of Certificates with the same rights as it would have if it were not
the Trustee.
Section 8.05 Trustee's Fees and Expenses.
As compensation for its activities under this Agreement, on each
Distribution Date the Trustee may withdraw from the Distribution Account the
Trustee Fee for that Distribution Date. The Trustee and any director, officer,
employee, or agent of the Trustee shall be indemnified by the Servicer against
any loss, liability, or expense (including reasonable attorney's fees) resulting
from any error in any tax or information return prepared by the Servicer or
incurred in connection with any claim or legal action relating to (a) this
Agreement, (b) the Certificates, or (c) the performance of any of the Trustee's
duties under this Agreement, other than any loss, liability or expense incurred
because of willful misfeasance, bad faith or negligence in the performance of
any of the Trustee's duties hereunder or incurred by reason
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of any action of the Trustee taken at the direction of the Certificateholders
under this Agreement. This indemnity shall survive the termination of this
Agreement or the resignation or removal of the Trustee under this Agreement.
Without limiting the foregoing, except as otherwise agreed upon in writing by
the Depositor and the Trustee, and except for any expense, disbursement, or
advance arising from the Trustee's negligence, bad faith, or willful misconduct,
the Servicer shall pay or reimburse the Trustee, for all reasonable expenses,
disbursements, and advances incurred or made by the Trustee in accordance with
this Agreement with respect to
(A) the reasonable compensation, expenses, and disbursements of its
counsel not associated with the closing of the issuance of the Certificates, and
(B) the reasonable compensation, expenses, and disbursements of any
accountant, engineer, or appraiser that is not regularly employed by the
Trustee, to the extent that the Trustee must engage them to perform services
under this Agreement.
Except as otherwise provided in this Agreement, the Trustee shall not be
entitled to payment or reimbursement for any routine ongoing expenses incurred
by the Trustee in the ordinary course of its duties as Trustee, Registrar, or
Paying Agent under this Agreement or for any other expenses.
Section 8.06 Eligibility Requirements for the Trustee.
The Trustee hereunder shall at all times be a corporation or association
organized and doing business under the laws of a state or the United States of
America, authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least $50,000,000, subject to supervision or
examination by federal or state authority and with a credit rating which would
not cause either of the Rating Agencies to reduce their respective then current
ratings of the Certificates (or having provided such security from time to time
as is sufficient to avoid such reduction) as evidenced in writing by each Rating
Agency. If such corporation or association publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section 8.06
the combined capital and surplus of such corporation or association shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Trustee shall cease to
be eligible in accordance with this Section 8.06, the Trustee shall resign
immediately in the manner and with the effect specified in Section 8.07. The
entity serving as Trustee may have normal banking and trust relationships with
the Depositor and its affiliates or the Servicer and its affiliates; provided,
however, that such entity cannot be an affiliate of the Seller, the Depositor or
the Servicer other than the Trustee in its role as successor to the Servicer.
Section 8.07 Resignation and Removal of the Trustee.
The Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice of resignation to the Depositor, the
Servicer, and each Rating Agency not less than 60 days before the date specified
in such notice, when, subject to Section 8.08, such resignation is to take
effect, and acceptance by a successor trustee in accordance with Section 8.08
meeting the qualifications set forth in Section 8.06. If no successor trustee
meeting such qualifications shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice or resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee.
As a condition to the effectiveness of any such resignation, at least 15
calendar days prior to the effective date of such resignation, the Trustee shall
provide (x) written notice to the Depositor of any successor pursuant to this
Section and (y) in writing and in form and substance reasonably satisfactory to
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the Depositor, all information reasonably requested by the Depositor in order to
comply with its reporting obligation under Item 6.02 of Form 8-K with respect to
the resignation of the Trustee.
If at any time (i) the Trustee shall cease to be eligible in accordance
with Section 8.06 and shall fail to resign after written request thereto by the
Depositor, (ii) the Trustee shall become incapable of acting, or shall be
adjudged as bankrupt or insolvent, or a receiver of the Trustee or of its
property shall be appointed, or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, (iii)(A) a tax is imposed with respect to the Trust
Fund by any state in which the Trustee or the Trust Fund is located and (B) the
imposition of such tax would be avoided by the appointment of a different
trustee, or (iv) during the period which the Depositor is required to file
Exchange Act Reports with respect to the Trust Fund, the Trustee fails to comply
with its obligations under the last sentence of Section 7.01, the preceding
paragraph, Section 8.09 or Article 11 and such failure is not remedied within
the lesser of 10 calendar days or such period in which the applicable Exchange
Act Report can be filed timely (without taking into account any extensions),
then, in the case of clauses (i) through (iii), then the Depositor or the
Servicer, or in the case of clause (iv), the Depositor, may remove the Trustee
and appoint a successor trustee by written instrument, in triplicate, one copy
of which shall be delivered to the Trustee, one copy to the Servicer and one
copy to the successor trustee.
The Holders of Certificates entitled to at least 51% of the Voting Rights
may at any time remove the Trustee and appoint a successor trustee by written
instrument or instruments, in triplicate, signed by such Holders or their
attorneys-in-fact duly authorized, one complete set of which shall be delivered
by the successor Trustee to the Servicer, one complete set to the Trustee so
removed, one complete set to the successor so appointed and one complete set to
the Depositor, together with a written description of the basis for such
removal. As long as any Voting Rights are held by parties other than the Seller,
its Affiliates, or its agents, Voting Rights of Certificates held by the Seller,
its Affiliates or its agents as the Seller shall certify to the Trustee upon any
such entity obtaining such ownership will be excluded from participating in such
voting arrangements, and excluded from determining the 51% threshold. The
successor trustee shall notify each Rating Agency of any removal of the Trustee.
Any resignation or removal of the Trustee and appointment of a successor
trustee pursuant to this Section 8.07 shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 8.08.
Section 8.08 Successor Trustee.
Any successor trustee appointed as provided in Section 8.07 shall execute,
acknowledge and deliver to the Depositor and to its predecessor trustee and the
Servicer an instrument accepting such appointment hereunder and thereupon the
resignation or removal of the predecessor trustee shall become effective and
such successor trustee, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with the like effect as if originally named as trustee
herein. The Depositor, the Servicer and the predecessor trustee shall execute
and deliver such instruments and do such other things as may reasonably be
required for more fully and certainly vesting and confirming in the successor
trustee all such rights, powers, duties, and obligations.
No successor trustee shall accept appointment as provided in this Section
8.08 unless, at the time of its acceptance, the successor trustee is eligible
under Section 8.06 and its appointment does not adversely affect the then
current rating of the Certificates and has provided to the Depositor in writing
and in form and substance reasonably satisfactory to the Depositor, all
information reasonably requested by
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the Depositor in order to comply with its reporting obligation under Item 6.02
of Form 8-K with respect to a replacement Trustee.
Upon acceptance of appointment by a successor trustee as provided in this
Section 8.08, the Depositor shall mail notice of the succession of such trustee
hereunder to all Holders of Certificates. If the Depositor fails to mail such
notice within 10 days after acceptance of appointment by the successor trustee,
the successor trustee shall cause such notice to be mailed at the expense of the
Depositor.
Section 8.09 Merger or Consolidation of the Trustee.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to the business of the Trustee, shall be the successor of
the Trustee hereunder, provided that such corporation shall be eligible under
Section 8.06 without the execution or filing of any paper or further act on the
part of any of the parties hereto, anything herein to the contrary
notwithstanding.
As a condition to the effectiveness of any merger or consolidation, at
least 15 calendar days prior to the effective date of any merger or
consolidation of the Trustee, the Trustee shall provide (x) written notice to
the Depositor of any successor pursuant to this Section and (y) in writing and
in form and substance reasonably satisfactory to the Depositor, all information
reasonably requested by the Depositor in order to comply with its reporting
obligation under Item 6.02 of Form 8-K with respect to a replacement Trustee.
Section 8.10 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or property securing any Mortgage Note may at the time be
located, the Servicer and the Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity and for the
benefit of the Certificateholders, such title to the Trust Fund or any part
thereof, whichever is applicable, and, subject to the other provisions of this
Section 8.10, such powers, duties, obligations, rights and trusts as the
Servicer and the Trustee may consider appropriate. If the Servicer shall not
have joined in such appointment within 15 days after the receipt by it of a
request to do so, or in the case an Event of Default shall have occurred and be
continuing, the Trustee alone shall have the power to make such appointment. No
co-trustee or separate trustee hereunder shall be required to meet the terms of
eligibility as a successor trustee under Section 8.06 and no notice to
Certificateholders of the appointment of any co-trustee or separate trustee
shall be required under Section 8.08.
Every separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(a) To the extent necessary to effectuate the purposes of this Section
8.10, all rights, powers, duties and obligations conferred or imposed upon the
Trustee, except for the obligation of the Trustee under this Agreement to
advance funds on behalf of the Servicer, shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly (it being understood that such separate trustee or co-trustee is not
authorized to act separately without the Trustee joining in such act), except to
the extent that under any law of any jurisdiction in which any particular act or
acts are to be performed (whether as Trustee hereunder or as successor to the
Servicer hereunder), the Trustee
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shall be incompetent or unqualified to perform such act or acts, in which event
such rights, powers, duties and obligations (including the holding of title to
the applicable Trust Fund or any portion thereof in any such jurisdiction) shall
be exercised and performed singly by such separate trustee or co-trustee, but
solely at the direction of the Trustee;
(b) No trustee hereunder shall be held personally liable because of any
act or omission of any other trustee hereunder and such appointment shall not,
and shall not be deemed to, constitute any such separate trustee or co-trustee
as agent of the Trustee;
(c) The Trustee may at any time accept the resignation of or remove any
separate trustee or co-trustee; and
(d) The Servicer, and not the Trustee, shall be liable for the payment of
reasonable compensation, reimbursement and indemnification to any such separate
trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be deemed
to have been given to each of the separate trustees and co-trustees, when and as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee and a copy thereof given to the
Servicer and the Depositor.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
Section 8.11 Tax Matters.
It is intended that the assets with respect to which one or more REMIC
elections pertaining to the Trust Fund is to be made, as set forth in the
Preliminary Statement, shall constitute, and that the conduct of matters
relating to such assets shall be such as to qualify such assets as, a "real
estate mortgage investment conduit" as defined in and in accordance with the
REMIC Provisions. In furtherance of such intention, the Trustee covenants and
agrees that it shall act as agent (and the Trustee is hereby appointed to act as
agent) on behalf of each REMIC created under this Agreement and that in such
capacity it shall:
(a) prepare and file in a timely manner, a U.S. Real Estate Mortgage
Investment Conduit Income Tax Return (Form 1066 or any successor form adopted by
the Internal Revenue Service) with respect to each REMIC created hereunder and
prepare and file with the Internal Revenue Service and applicable state or local
tax authorities income tax or information returns for each taxable year with
respect to each REMIC described in the Preliminary Statement, containing such
information and at the times and in the manner as may be required by the Code or
state or local tax laws, regulations, or rules, and furnish to
Certificateholders the schedules, statements or information at such times and in
such manner as may be required thereby;
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(b) within thirty days of the Closing Date, furnish to the Internal
Revenue Service, on Forms 8811 or as otherwise may be required by the Code, the
name, title, address, and telephone number of the person that the holders of the
Certificates may contact for tax information relating thereto, together with
such additional information as may be required by such Form, and update such
information at the time or times in the manner required by the Code;
(c) make an election that each REMIC created under this Agreement be
treated as a REMIC on the federal tax return for its first taxable year (and, if
necessary, under applicable state law);
(d) prepare and forward to the Certificateholders and to the Internal
Revenue Service and, if necessary, state tax authorities, all information
returns and reports as and when required to be provided to them in accordance
with the REMIC Provisions, including the calculations of any original issue
discount and of taxable income or net loss to the holders of the residual
interests in each REMIC created hereunder using the Prepayment Assumption (as
defined in the Prospectus Supplement). For purposes of calculating taxable
income or net loss to the holders of the residual interests in each such REMIC,
the Trustee also shall assume that the indices in respect of any adjustable rate
Mortgage Loans are static until the liquidation or purchase of the Mortgage
Loans in accordance with Section 9.01;
(e) provide information necessary for the computation of tax imposed on
the transfer of a Residual Certificate to a Person that is not a Permitted
Transferee, or an agent (including a broker, nominee or other middleman) of a
Person that is not a Permitted Transferee, or a pass-through entity in which a
Person that is not a Permitted Transferee is the record holder of an interest
(the reasonable cost of computing and furnishing such information may be charged
to the Person liable for such tax);
(f) to the extent that they are under its control, conduct matters
relating to such assets at all times that any Certificates are outstanding so as
to maintain the status as any REMIC created under this Agreement under the REMIC
Provisions;
(g) not knowingly or intentionally take any action or omit to take any
action that would cause the termination of the REMIC status of any REMIC created
under this Agreement;
(h) pay, from the sources specified in the third paragraph of this Section
8.11, the amount of any federal or state tax, including prohibited transaction
taxes as described below, imposed on any REMIC before its termination when and
as the same shall be due and payable (but such obligation shall not prevent the
Trustee or any other appropriate Person from contesting any such tax in
appropriate proceedings and shall not prevent the Trustee from withholding
payment of such tax, if permitted by law, pending the outcome of such
proceedings);
(i) ensure that federal, state or local income tax or information returns
shall be signed by the Trustee or such other person as may be required to sign
such returns by the Code or state or local laws, regulations or rules;
(j) maintain records relating to each REMIC created under this Agreement,
including the income, expenses, assets, and liabilities thereof and the fair
market value and adjusted basis of the assets determined at such intervals as
may be required by the Code, as may be necessary to prepare the foregoing
returns, schedules, statements or information; and
(k) as and when necessary and appropriate, represent each REMIC created
under this Agreement in any administrative or judicial proceedings relating to
an examination or audit by any governmental taxing authority, request an
administrative adjustment as to any taxable year of such REMIC, enter into
settlement agreements with any governmental taxing agency, extend any statute of
limitations relating to
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any tax item of such REMIC, and otherwise act on behalf of such REMIC in
relation to any tax matter or controversy involving it.
To enable the Trustee to perform its duties under this Agreement, the
Depositor shall provide to the Trustee within ten days after the Closing Date
all information or data that the Trustee requests in writing and determines to
be relevant for tax purposes to the valuations and offering prices of the
Certificates, including the price, yield, prepayment assumption, and projected
cash flows of the Certificates and the Mortgage Loans. Thereafter, the Depositor
shall provide to the Trustee promptly upon written request therefor any
additional information or data that the Trustee may, from time to time,
reasonably request to enable the Trustee to perform its duties under this
Agreement. The Depositor hereby indemnifies the Trustee for any losses,
liabilities, damages, claims, or expenses of the Trustee arising from any errors
or miscalculations of the Trustee that result from any failure of the Depositor
to provide, or to cause to be provided, accurate information or data to the
Trustee on a timely basis.
If any tax is imposed on "prohibited transactions" (as defined in section
860F(a)(2) of the Code) of any REMIC created under this Agreement, on the "net
income from foreclosure property" of any REMIC created under this Agreement as
defined in section 860G(c) of the Code, on any contribution to any REMIC created
under this Agreement after the Startup Day pursuant to section 860G(d) of the
Code, or any other tax is imposed, including any minimum tax imposed on any
REMIC created hereunder pursuant to sections 23153 and 24874 of the California
Revenue and Taxation Code, if not paid as otherwise provided for herein, the tax
shall be paid by (i) the Trustee, if any such other tax arises out of or results
from negligence of the Trustee in the performance of any of its obligations
under this Agreement, (ii) the Servicer or the Seller, in the case of any such
minimum tax, if such tax arises out of or results from a breach by the Servicer
or Seller of any of their obligations under this Agreement, (iii) the Seller, if
any such tax arises out of or results from the Seller's obligation to repurchase
a Mortgage Loan pursuant to Section 2.02 or 2.03, or (iv) in all other cases, or
if the Trustee, the Servicer, or the Seller fails to honor its obligations under
the preceding clauses (i), (ii), or (iii), any such tax will be paid with
amounts otherwise to be distributed to the Certificateholders, as provided in
Section 3.09(b).
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ARTICLE NINE
TERMINATION
Section 9.01 Termination upon Liquidation or Purchase of the Mortgage
Loans.
Subject to Section 9.03, the obligations and responsibilities of the
Depositor, the Servicer, and the Trustee created hereby shall terminate upon the
earlier of
(a) the purchase by the Servicer of all Mortgage Loans (and REO
Properties) at the price equal to the sum of
(i) 100% of the Stated Principal Balance of each Mortgage Loan
(other than in respect of a Delinquent Mortgage Loan or REO Property) plus
one month's accrued interest thereon at the applicable Adjusted Mortgage
Rate less any amounts collected by the Servicer representing principal and
interest due after the related Due Date,
(ii) the lesser of (x) the appraised value of any Delinquent
Mortgage Loan or REO Property as determined by the higher of two
appraisals completed by two independent appraisers selected by the
Servicer at the expense of the Servicer and (y) the Stated Principal
Balance of each such Delinquent Mortgage Loan or Mortgage Loan related to
such REO Property, in each case plus accrued and unpaid interest thereon
at the applicable Adjusted Net Mortgage Rate and
(iii) any costs and damages incurred by the Trust Fund in connection
with any violation by each Mortgage Loan of any predatory or abusive
lending law and
(b) the later of
(i) the maturity or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan and the disposition of all REO Property
and
(ii) the distribution to Certificateholders of all amounts required
to be distributed to them pursuant to this Agreement. In no event shall
the trusts created hereby continue beyond the expiration of 21 years from
the death of the survivor of the descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the
late Ambassador of the United States to the Court of St. James's, living
on the date of this Agreement.
The right to purchase all Mortgage Loans and REO Properties pursuant to
clause (a) above shall be conditioned upon the aggregate Stated Principal
Balance of those Mortgage Loans, at the time of any such repurchase, aggregating
less than ten percent (10%) of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-off Date. The first Distribution Date on which the
right to purchase all Mortgage Loans and REO Properties pursuant to clause (a)
above first becomes exercisable is referred to as the "Optional Termination
Date." The Servicer shall effect any such repurchase by depositing the purchase
price, as calculated above, as of the month preceding the date on which such
purchase price shall be distributed to Certificateholders into the Certificate
Account. With such repurchase, the Servicer shall acquire any rights or
potential rights of the Certificateholders or the Trustee to causes of action
against any Person relating to the Mortgage Loans or the origination of the
Mortgage Loans, including, without limitation, the right to enforce any breach
of a representation or warranty made at any time with respect to the Mortgage
Loans.
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Section 9.02 Final Distribution on the Certificates.
If on any Determination Date the Servicer determines that there are no
Outstanding Mortgage Loans and no other funds or assets in the Trust Fund other
than the funds in the Certificate Account, the Servicer shall direct the Trustee
promptly to send a final distribution notice to each Certificateholder. If the
Servicer elects to terminate the Trust Fund pursuant to clause (a) of Section
9.01, no later than the 15th day of the month preceding the month of the final
Distribution Date the Servicer shall notify the Depositor and the Trustee of the
date the Servicer intends to terminate the Trust Fund and of the applicable
repurchase price of the Mortgage Loans and REO Properties.
Notice of any termination of the Trust Fund specifying the Distribution
Date on which Certificateholders may surrender their Certificates for payment of
the final distribution and cancellation shall be given promptly by the Trustee
by letter to Certificateholders mailed not earlier than the 15th day and not
later than the last day of the month next preceding the month of such final
distribution. Any such notice shall specify (a) the Distribution Date upon which
final distribution on the Certificates will be made upon presentation and
surrender of Certificates at the office therein designated, (b) the amount of
such final distribution, (c) the location of the office or agency at which such
presentation and surrender must be made, and (d) that the Record Date otherwise
applicable to the Distribution Date is not applicable, distributions being made
only upon presentation and surrender of the Certificates at the office therein
specified. The Servicer will give such notice to each Rating Agency at the time
such notice is given to Certificateholders.
If this notice is given, the Servicer shall cause all funds in the
Certificate Account to be remitted to the Trustee for deposit in the
Distribution Account on the Business Day before the applicable Distribution Date
in an amount equal to the final distribution in respect of the Certificates.
Upon such final deposit with respect to the Trust Fund and the receipt by the
Trustee of a Request for Release therefor, the Trustee shall promptly release to
the Servicer the Mortgage Files for the Mortgage Loans.
Upon presentation and surrender of the Certificates, the Trustee shall
cause to be distributed to the Certificateholders of each Class, in each case on
the final Distribution Date and in the order set forth in Section 4.02, in
proportion to their respective Percentage Interests, with respect to
Certificateholders of the same Class, an amount equal to (i) as to each Class of
Regular Certificates, its Certificate Balance plus for each such Class accrued
interest thereon in the case of an interest-bearing Certificate and (ii) as to
the Residual Certificates, any amount remaining on deposit in the Distribution
Account (other than the amounts retained to meet claims) after application
pursuant to clause (i) above. Notwithstanding the reduction of the Certificate
Balance of any Class of Certificates to zero, such Class will be outstanding
hereunder solely for the purpose of receiving distributions and for no other
purpose until the termination of the respective obligations and responsibilities
of the Depositor, the Servicer and the Trustee hereunder in accordance with
Article Nine. The foregoing provisions are intended to distribute to each Class
of Regular Certificates any accrued and unpaid interest and principal to which
they are entitled based on the Pass-Through Rates and actual Class Certificate
Balances set forth in the Preliminary Statement upon liquidation of the Trust
Fund.
If any affected Certificateholder does not surrender its Certificates for
cancellation within six months after the date specified in the above mentioned
written notice, the Trustee shall give a second written notice to the remaining
Certificateholders to surrender their Certificates for cancellation and receive
the final distribution with respect thereto. If within six months after the
second notice all the applicable Certificates shall not have been surrendered
for cancellation, the Trustee may take appropriate steps, or may appoint an
agent to take appropriate steps, to contact the remaining Certificateholders
concerning surrender of their Certificates, and the cost thereof shall be paid
out of the funds and other assets which remain a part of the Trust Fund. If
within one year after the second notice all Certificates
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shall not have been surrendered for cancellation, then the Class A-R
Certificateholders shall be entitled to all unclaimed funds and other assets of
the Trust Fund which remain subject hereto.
Section 9.03 Additional Termination Requirements.
(a) If the Servicer exercises its purchase option with respect to the
Mortgage Loans as provided in Section 9.01, the Trust Fund shall be terminated
in accordance with the following additional requirements, unless the Trustee has
been supplied with an Opinion of Counsel, at the expense of the Servicer, to the
effect that the failure to comply with the requirements of this Section 9.03
will not (i) result in the imposition of taxes on "prohibited transactions" on
any REMIC created hereunder as defined in section 860F of the Code, or (ii)
cause any REMIC created under this Agreement to fail to qualify as a REMIC at
any time that any Certificates are outstanding:
(b) The Trustee shall sell all of the assets of the Trust Fund to the
Servicer, and, within 90 days of such sale, shall distribute to the
Certificateholders the proceeds of such sale in complete liquidation of each
REMIC created under this Agreement.
(c) The Trustee shall attach a statement to the final federal income tax
return for each REMIC created under this Agreement stating that pursuant to
Treasury Regulation ss. 1.860F-1, the first day of the 90-day liquidation period
for such REMIC was the date on which the Trustee sold the assets of the Trust
Fund to the Servicer.
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ARTICLE TEN
MISCELLANEOUS PROVISIONS
Section 10.01 Amendment.
This Agreement may be amended from time to time by the Depositor, the
Servicer and the Trustee without the consent of any of the Certificateholders
(i) to cure any ambiguity or mistake, (ii) to correct any defective provision in
this Agreement or to supplement any provision in this Agreement which may be
inconsistent with any other provision in this Agreement, (iii) to conform this
Agreement to the Prospectus Supplement, (iv) to add to the duties of the
Depositor, the Seller or the Servicer, (v) to modify, alter, amend, add to or
rescind any of the terms or provisions contained in this Agreement to comply
with any rules or regulations promulgated by the Commission from time to time,
(vi) to add any other provisions with respect to matters or questions arising
under this Agreement, or (vii) to modify, alter, amend, add to, or rescind any
of the terms or provisions contained in this Agreement.
No action pursuant to clauses (v), (vi) or (vii) above may, as evidenced
by an Opinion of Counsel (which Opinion of Counsel shall not be an expense of
the Trustee or the Trust Fund), adversely affect in any material respect the
interests of any Certificateholder. The amendment shall not be deemed to
adversely affect in any material respect the interests of the Certificateholders
if the Person requesting the amendment obtains a letter from each Rating Agency
stating that the amendment would not result in the downgrading, qualification or
withdrawal of the respective ratings then assigned to the Certificates. Any such
letter in and of itself will not represent a determination as to the materiality
of any amendment and will represent a determination only as to the credit issues
affecting any rating. Each party to this Agreement agrees that it will cooperate
with each other party in amending this Agreement pursuant to clause (v) above.
The Trustee, the Depositor, and the Servicer also may at any time and from
time to time amend this Agreement without the consent of the Certificateholders
to modify, eliminate or add to any of its provisions to the extent necessary or
helpful to (i) maintain the qualification of any REMIC created under this
Agreement as a REMIC under the Code, (ii) avoid or minimize the risk of the
imposition of any tax on any REMIC created under this Agreement pursuant to the
Code that would be a claim at any time before the final redemption of the
Certificates, or (iii) comply with any other requirements of the Code, if the
Trustee has been provided an Opinion of Counsel, which opinion shall be an
expense of the party requesting such opinion but in any case shall not be an
expense of the Trustee or the Trust Fund, to the effect that the action is
necessary or helpful for one of the foregoing purposes.
This Agreement may also be amended from time to time by the Depositor, the
Servicer, and the Trustee with the consent of the Holders of Certificates
evidencing Percentage Interests aggregating not less than 51% of each Class of
Certificates adversely affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Agreement or of modifying in any manner the rights of the Holders of
Certificates. As long as any Voting Rights are held by parties other than the
Seller, its Affiliates, or its agents, as the Seller shall certify to the
Trustee upon any such entity obtaining such ownership, Voting Rights of
Certificates held by the Seller, its Affiliates or its agents will be excluded
from participating in such voting arrangements, and excluded from determining
the 51% threshold. No amendment shall
(i) reduce in any manner the amount of, or delay the timing of, payments
required to be distributed on any Certificate without the consent of the Holder
of such Certificate,
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(ii) amend, modify, add to, rescind, or alter in any respect Section
10.13, notwithstanding any contrary provision of this Agreement, without the
consent of the Holders of Certificates evidencing Percentage Interests
aggregating not less than 66 2/3% (provided, however, that no Certificates held
by the Seller, the Depositor or any Affiliate thereby shall be given effect for
the purpose of calculating any such aggregation of Percentage Interests), or
(iii) reduce the aforesaid percentages of Certificates the Holders of
which are required to consent to any such amendment, without the consent of the
Holders of all such Certificates then outstanding.
Notwithstanding any contrary provision of this Agreement, the Trustee
shall not consent to any amendment to this Agreement unless (i) it shall have
first received an Opinion of Counsel, which opinion shall not be an expense of
the Trustee or the Trust Fund, to the effect that such amendment will not cause
the imposition of any tax on any REMIC created under this Agreement or the
Certificateholders or cause any REMIC created hereunder to fail to qualify as a
REMIC at any time that any Certificates are outstanding and (ii) because the
Trust Fund is required to be a Qualifying Special Purpose Entity (as that term
is defined in Statement of Financial Accounting Standards No. 140 ("SFAS 140"),
in order for the Seller to continue to account for the transfer of the Mortgage
Loans under this Agreement as a sale under SFAS 140, prior to the parties hereto
entering into such an amendment, the Trustee shall receive an Officer's
Certificate, which shall not be an expense of the Trustee or the Trust Fund, to
the effect that such amendment would not "significantly change" (within the
meaning of SFAS 140) the permitted activities of the Trust Fund so as to cause
the Trust Fund to fail to qualify as a Qualifying Special Purpose Entity.
Promptly after the execution of any amendment to this Agreement requiring
the consent of Certificateholders, the Trustee shall furnish written
notification of the substance or a copy of such amendment to each
Certificateholder and each Rating Agency.
It shall not be necessary for the consent of Certificateholders under this
Section 10.01 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
Nothing in this Agreement shall require the Trustee to enter into an
amendment without receiving an Opinion of Counsel (which Opinion shall not be an
expense of the Trustee or the Trust Fund), satisfactory to the Trustee that (i)
such amendment is permitted and is not prohibited by this Agreement and that all
requirements for amending this Agreement have been complied with; and (ii)
either (A) the amendment does not adversely affect in any material respect the
interests of any Certificateholder or (B) the conclusion set forth in the
preceding clause (A) is not required to be reached pursuant to this Section
10.01.
Section 10.02 Recordation of Agreement; Counterparts.
This Agreement is subject to recordation in all appropriate public offices
for real property records in all the counties or other comparable jurisdictions
in which any or all of the properties subject to the Mortgages are situated, and
in any other appropriate public recording office or elsewhere, such recordation
to be effected by the Servicer at its expense, but only upon receipt of an
Opinion of Counsel to the effect that such recordation materially and
beneficially affects the interests of the Certificateholders.
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For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 10.03 Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
SUBSTANTIVE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO
BE PERFORMED IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES HERETO AND THE CERTIFICATEHOLDERS SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
Section 10.04 Intention of Parties.
It is the express intent of the parties hereto that the conveyance (i) of
the Mortgage Loans by the Seller to the Depositor and (ii) of the Trust Fund by
the Depositor to the Trustee each be, and be construed as, an absolute sale
thereof. It is, further, not the intention of the parties that such conveyances
be deemed a pledge thereof. However, if, notwithstanding the intent of the
parties, the assets are held to be the property of the Seller or Depositor, as
the case may be, or if for any other reason this Agreement is held or deemed to
create a security interest in either such assets, then (i) this Agreement shall
be deemed to be a security agreement within the meaning of the UCC and (ii) the
conveyances provided for in this Agreement shall be deemed to be an assignment
and a grant (i) by the Seller to the Depositor or (ii) by the Depositor to the
Trustee, for the benefit of the Certificateholders, of a security interest in
all of the assets transferred, whether now owned or hereafter acquired.
The Seller and the Depositor for the benefit of the Certificateholders
shall, to the extent consistent with this Agreement, take such actions as may be
necessary to ensure that, if this Agreement were deemed to create a security
interest in the Trust Fund, such security interest would be deemed to be a
perfected security interest of first priority under applicable law and will be
maintained as such throughout the term of the Agreement. The Depositor shall
arrange for filing any Uniform Commercial Code continuation statements in
connection with any security interest granted or assigned to the Trustee for the
benefit of the Certificateholders.
Section 10.05 Notices.
(a) The Trustee shall use its best efforts to promptly provide notice to
each Rating Agency with respect to each of the following of which it has actual
knowledge:
1. Any material change or amendment to this Agreement;
2. The occurrence of any Event of Default that has not been cured;
3. The resignation or termination of the Servicer or the Trustee and the
appointment of any successor;
4. The repurchase or substitution of Mortgage Loans pursuant to Section
2.03; and
5. The final distribution to Certificateholders.
In addition, the Trustee shall promptly furnish to each Rating Agency
copies of the following:
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1. Each report to Certificateholders described in Section 4.06;
2. Each annual statement as to compliance described in Section 3.17;
3. Each annual independent public accountants' servicing report described
in Section 11.07; and
4. Any notice of a purchase of a Mortgage Loan pursuant to Section 2.02,
2.03 or 3.11.
(b) All directions, demands and notices hereunder shall be in writing and
shall be deemed to have been duly given when delivered to (a) in the case of the
Depositor, IndyMac MBS, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Secondary Marketing Transaction Management; (b) in the case of the
Servicer, IndyMac Bank, F.S.B., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention: Secondary Marketing, Transaction Management or such other
address as may be hereafter furnished to the Depositor and the Trustee by the
Servicer in writing; (c) in the case of the Trustee to the Corporate Trust
Office, Deutsche Bank National Trust Company, ▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Trust Administration IN07A1, Series
2007-AR1, or such other address as the Trustee may hereafter furnish to the
Depositor or Servicer and (d) in the case of each of the Rating Agencies, the
address specified therefor in the definition corresponding to the name of such
Rating Agency. Notices to Certificateholders shall be deemed given when mailed,
first class postage prepaid, to their respective addresses appearing in the
Certificate Register.
Section 10.06 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
Section 10.07 Assignment
Notwithstanding anything to the contrary contained in this Agreement,
except as provided in Section 6.02, this Agreement may not be assigned by the
Servicer without the prior written consent of the Trustee and Depositor.
Section 10.08 Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the trust created by this Agreement, nor entitle
such Certificateholder's legal representative or heirs to claim an accounting or
to take any action or commence any proceeding in any court for a petition or
winding up of the trust created hereby, or otherwise affect the rights,
obligations and liabilities of the parties to this Agreement or any of them.
No Certificateholder shall have any right to vote (except as provided in
this Agreement) or in any manner otherwise control the operation and management
of the Trust Fund, or the obligations of the parties to this Agreement, nor
shall anything herein set forth or contained in the terms of the Certificates be
construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third party because of any action taken by the parties to
this Agreement pursuant to any provision of this Agreement.
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No Certificateholder shall have any right by virtue or by availing itself
of any provisions of this Agreement to institute any suit, action or proceeding
in equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee a written notice of an Event
of Default and of the continuance thereof, as provided in this Agreement, and
unless the Holders of Certificates evidencing not less than 25% of the Voting
Rights evidenced by the Certificates shall also have made written request to the
Trustee to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses, and liabilities to be incurred therein
or thereby, and the Trustee, for 60 days after its receipt of such notice,
request and offer of indemnity shall have neglected or refused to institute any
such action, suit or proceeding; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing itself or
themselves of any provisions of this Agreement to affect, disturb or prejudice
the rights of the Holders of any other of the Certificates, or to obtain or seek
to obtain priority over or preference to any other such Holder or to enforce any
right under this Agreement, except in the manner herein provided and for the
common benefit of all Certificateholders. For the protection and enforcement of
this Section 10.08, each Certificateholder and the Trustee shall be entitled to
any relief that can be given either at law or in equity. As long as any Voting
Rights are held by parties other than the Seller, its Affiliates, or its agents,
Voting Rights of Certificates held by the Seller, its Affiliates or its agents
as the Seller shall certify to the Trustee upon any entity obtaining such
ownership, will be excluded from participating in such voting arrangements, and
excluded from determining the 25% threshold.
Section 10.09 Inspection and Audit Rights.
The Servicer agrees that, on reasonable prior notice, it will permit any
representative of the Depositor or the Trustee during the Servicer's normal
business hours, to examine all the books of account, records, reports and other
papers of the Servicer relating to the Mortgage Loans, to make copies and
extracts therefrom, to cause such books to be audited by independent certified
public accountants selected by the Depositor or the Trustee and to discuss its
affairs, finances and accounts relating to the Mortgage Loans with its officers,
employees and independent public accountants (and by this provision the Servicer
hereby authorizes said accountants to discuss with such representative such
affairs, finances and accounts), all at such reasonable times and as often as
may be reasonably requested. Any out-of-pocket expense incident to the exercise
by the Depositor or the Trustee of any right under this Section 10.09 shall be
borne by the party requesting such inspection; all other such expenses shall be
borne by the Servicer.
Section 10.10 Certificates Nonassessable and Fully Paid.
It is the intention of the Depositor that Certificateholders shall not be
personally liable for obligations of the Trust Fund, that the interests in the
Trust Fund represented by the Certificates shall be nonassessable for any reason
whatsoever, and that the Certificates, upon due authentication thereof by the
Trustee pursuant to this Agreement, are and shall be deemed fully paid.
Section 10.11 Official Record.
The Seller agrees that this Agreement is and shall remain at all times
before the time at which this Agreement terminates an official record of the
Seller as referred to in Section 13(e) of the Federal Deposit Insurance Act.
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Section 10.12 Protection of Assets.
(a) Except for transactions and activities entered into in connection with
the securitization that is the subject of this Agreement, the trust created by
this Agreement is not authorized and has no power to:
(1) borrow money or issue debt;
(2) merge with another entity, reorganize, liquidate or sell assets;
(3) engage in any business or activities.
(b) Each party to this Agreement agrees that it will not file an
involuntary bankruptcy petition against the Trustee or the Trust Fund or
initiate any other form of insolvency proceeding until after the Certificates
have been paid in full.
Section 10.13 Qualifying Special Purpose Entity.
Notwithstanding any contrary provision of this Agreement, the Trust Fund
shall not hold any property or engage in any activity that would disqualify the
Trust Fund from being a qualifying special purpose entity under generally
accepted accounting principles.
ARTICLE ELEVEN
EXCHANGE ACT REPORTING
Section 11.01 Filing Obligations.
The Servicer, the Trustee and the Seller shall reasonably cooperate with
the Depositor in connection with the satisfaction of the Depositor's reporting
requirements under the Exchange Act with respect to the Trust Fund. In addition
to the information specified below, if so requested by the Depositor for the
purpose of satisfying its reporting obligation under the Exchange Act, the
Servicer, the Trustee and the Seller shall provide the Depositor with (a) such
information which is available to such Person without unreasonable effort or
expense and within such timeframe as may be reasonably requested by the
Depositor to comply with the Depositor's reporting obligations under the
Exchange Act and (b) to the extent such Person is a party (and the Depositor is
not a party) to any agreement or amendment required to be filed, copies of such
agreement or amendment in ▇▇▇▇▇-compatible form.
Section 11.02 Form 10-D Filings.
(a) In accordance with the Exchange Act, unless no reporting obligation
under the Exchange Act exists at such time with respect to the Trust Fund, the
Trustee shall prepare for filing and file within 15 days after each Distribution
Date (subject to permitted extensions under the Exchange Act) with the
Commission with respect to the Trust Fund, a Form 10-D with copies of the
Monthly Report and, to the extent delivered to the Trustee, no later than five
calendar days following the Distribution Date, such other information identified
by the Depositor or the Servicer, in writing, to be filed with the Commission
(such other information, the "Additional Designated Information"). If the
Depositor or Servicer directs that any Additional Designated Information is to
be filed with any Form 10-D, the Depositor or Servicer, as the case may be,
shall specify the Item on Form 10-D to which such information is responsive and,
with respect to any Exhibit to be filed on Form 10-D, the Exhibit number. Any
information to be filed on Form 10-D shall be delivered to the Trustee in
▇▇▇▇▇-compatible form or as otherwise agreed upon by the Trustee and the
Depositor or the Servicer, as the case may be, at the Depositor's expense, and
any
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necessary conversion to ▇▇▇▇▇-compatible format will be at the Depositor's
expense. At the reasonable request of, and in accordance with the reasonable
directions of, the Depositor or the Servicer, subject to the two preceding
sentences, the Trustee shall prepare for filing and file an amendment to any
Form 10-D previously filed with the Commission with respect to the Trust Fund.
The Depositor shall sign the Form 10-D filed on behalf of the Trust Fund.
The Trustee shall prepare each Form 10-D and, no later than five Business
Days prior to the date on which such Form 10-D is required to be filed, deliver
a copy of such Form 10-D to the Depositor for review. No later than the Business
Day following the receipt thereof, the Depositor shall notify the Trustee of any
changes to be made to the Form 10-D. The Trustee shall make any changes thereto
requested by the Depositor and deliver the final Form 10-D to the Depositor for
signature no later than three Business Days prior to the date on which such Form
10-D must be filed by the Trustee in accordance with this Section 11.02. The
Depositor shall execute the final Form 10-D and deliver the same to the Trustee
via electronic mail (▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇.▇▇▇) or facsimile no later than the
Business Day following receipt of the same (which, unless not received within
such time frame from the Trustee, shall be no later than two Business Days prior
to the date on which the Form 10-D is required to be filed), with an original
executed hard copy to follow by overnight courier.
(b) No later than each Distribution Date, any party responsible for
providing Additional Designated Information shall notify the Depositor and the
Trustee of any Form 10-D Disclosure Item, together with a description of any
such Form 10-D Disclosure Item in form and substance reasonably acceptable to
the Depositor. In addition to such information as the Servicer and the Trustee
are obligated to provide pursuant to other provisions of this Agreement, if so
requested by the Depositor, each of the Servicer and the Trustee shall provide
such information which is available to the Servicer and the Trustee, as
applicable, without unreasonable effort or expense regarding the performance or
servicing of the Mortgage Loans (in the case of the Trustee, based on the
information provided by the Servicer) as is reasonably required to facilitate
preparation of distribution reports in accordance with Item 1121 of Regulation
AB. Such information shall be provided concurrently with the Remittance Reports
in the case of the Servicer and the Monthly Statement in the case of the
Trustee, commencing with the first such report due not less than five Business
Days following such request.
(c) The Trustee shall not have any responsibility to file any items (other
than those generated by it) that have not been received in a format suitable (or
readily convertible into a format suitable) for electronic filing via the ▇▇▇▇▇
system and shall not have any responsibility to convert any such items to such
format (other than those items generated by it or that are readily convertible
to such format). The Trustee shall have no liability to the Certificateholders,
the Trust Fund, the Servicer or the Depositor with respect to any failure to
properly prepare or file any of Form 10-D to the extent that such failure is not
the result of any negligence, bad faith or willful misconduct on its part. The
Trustee will not have any duty to verify the accuracy or sufficiency of any
information to be included in any Form 10-D not provided by it. The Trustee
shall have no liability with respect to any failure to properly prepare and file
such periodic reports resulting from or relating to the Trustee's inability or
failure to obtain any information not resulting from its own negligence or
willful misconduct.
Section 11.03 Form 8-K Filings.
The Servicer shall prepare and file on behalf of the Trust Fund any Form
8-K required by the Exchange Act. Each Form 8-K must be signed by the Servicer.
Any reporting party identified on Exhibit T shall promptly notify the Depositor
and the Servicer (if the notifying party is not the Servicer), but in no event
later than one (1) Business Day after its occurrence, of any Reportable Event of
which it has actual knowledge. Each Person shall be deemed to have actual
knowledge of any such event to the extent that it relates to such Person or any
action or failure to act by such Person.
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Section 11.04 Form 10-K Filings.
Prior to (x) March 31, 2008 and (y) unless and until a Form 15 Suspension
Notice shall have been filed, March 31st of each year thereafter (or, in either
case, such earlier date as may be required by the Exchange Act), the Trustee
shall, subject to the provisions of this Section 11.04, file a Form 10-K, with
respect to the Trust Fund. The Trustee shall prepare and file on behalf of the
Trust Fund a Form 10-K, in form and substance as required by the Exchange Act.
The Trustee shall prepare each Form 10-K and, no later than 5 Business Days
prior to the date on which such Form 10-K is required to be filed, deliver a
copy of such Form 10-K to the Depositor for review. No later than the Business
Day following the receipt thereof, the Depositor shall notify the Trustee of any
changes to be made to the Form 10-K. The Trustee shall make any changes thereto
requested by the Depositor and deliver the final Form 10-K to the Depositor for
signature no later than three Business Days prior to the date on which such Form
10-K must be filed by the Trustee in accordance with this Section 11.04. The
Depositor shall execute the final Form 10-K and deliver the same to the Trustee
via electronic mail (▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇.▇▇▇) or facsimile no later than
Business Day following receipt of the same (which, unless not received within
such time frame from the Trustee, shall be no later than two Business Days prior
to the date on which the From 10-K is required to be filed), with an original
executed hard copy to follow by overnight mail. Such Form 10-K shall include the
Assessment of Compliance, Attestation Report, Annual Compliance Statements and
other documentation provided by the Servicer pursuant to Sections 3.17 and
11.07, a certification in the form attached hereto as Exhibit O-1 (the
"Depositor Certification"), which shall be signed by the senior officer of the
Depositor in charge of securitization, and an accountant's report described
under Section 11.07. Each Form 10-K shall also include any ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Certification required to be included therewith, as described in Section 11.05.
If the Item 1119 Parties listed on Exhibit T have changed since the
Closing Date, no later than March 1 of each year, the Depositor shall provide
each of the Servicer and the Trustee via electronic mail
(▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇.▇▇▇) with an updated Exhibit T setting forth the Item
1119 Parties.
As to each item of information required to be included in any Form 10-D,
Form 8-K or Form 10-K, the Trustee's or Depositor's obligation to include the
information in the applicable report is subject to receipt from the entity that
is indicated in Exhibit Q as the responsible party for providing that
information, if other than the Trustee or the Depositor, as applicable, as and
when required as described above. Each of the Trustee, the Servicer and the
Depositor, as applicable, hereby agree to notify and provide to the Trustee and
the Depositor all information that is required to be included in any Form 10-D,
Form 8-K or Form 10-K, with respect to which that entity is indicated in Exhibit
Q as the responsible party for providing that information. In the case of
information to be included in the From 10-D, such information shall be delivered
to the Trustee (with a copy to the Depositor) no later than 5 calendar days
following each Distribution Date. In the case of information to be included in
the Form 8-K, such information shall be delivered to the Depositor no later than
no later 2 Business Days following the occurrence of a reportable event. In the
case of information to be included in the From 10-K, such information, other
than the documentation provided pursuant to Sections 3.17 and 11.07, shall be
delivered to the Trustee no later than (x) March 1, 2008 (with a 15-day cure
period) and (y) unless and until a Form 15 Suspension Notice shall have been
filed, March 1st of each year thereafter. The Servicer shall be responsible for
determining the pool concentration applicable to any subservicer or originator
at any time, for purposes of disclosure as required by Items 1117 and 1119 of
Regulation AB. The Trustee shall provide electronic or paper copies of all Form
10-D, 8-K and 10-K filings free of charge to any Certificateholder upon request.
The Trustee shall sign a certification (in the form attached hereto as
Exhibit O-2) for the benefit of the Depositor and its officers, directors and
Affiliates. The Trustee's certification shall be delivered to the Depositor by
no later than March 18th of each year (or if such day is not a Business Day, the
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immediately preceding Business Day) and the Depositor shall deliver the
Depositor Certification to the Trustee for filing no later than March 20th of
each year (or if such day is not a Business Day, the immediately preceding
Business Day).
The Trustee shall indemnify and hold harmless the Depositor and its
officers, directors and Affiliates from and against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments and other costs and expenses arising out of or based upon (i) a
breach of the Trustee's obligations under this Section 11.04 and Section 11.07
or (ii) any material misstatement or omission contained in any information
provided by the Trustee including, without limitation, in the certification
provided by the Trustee in the form of Exhibit O-2 or the assessment of
compliance provided pursuant to Section 11.07. If the indemnification provided
for herein is unavailable or insufficient to hold harmless the Depositor, then
the Trustee, in connection with (i) a breach of the Trustee's obligations under
this Section 11.04 or Section 11.07 or (ii) any material misstatement or
omission contained in any information provided by the Trustee including, without
limitation, in the certification provided by the Trustee in the form of Exhibit
O-2, or in the assessment of compliance or attestation report provided pursuant
to Section 11.07, agrees that it shall contribute to the amount paid or payable
by the Depositor as a result of the losses, claims, damages or liabilities of
the Depositor in such proportion as is appropriate to reflect the relative fault
of the Depositor on the one hand and the Trustee on the other. This
indemnification shall survive the termination of this Agreement or the
termination of any party to this Agreement.
The Servicer shall indemnify and hold harmless the Depositor, the Trustee
and their respective officers, directors and Affiliates from and against any
actual losses, damages, penalties, fines, forfeitures, reasonable and necessary
legal fees and related costs, judgments and other costs and expenses that such
Person may sustain based upon (i) a breach of the Servicer's obligations under
Sections 3.17, 11.07 or 11.04 or (ii) any material misstatement or omission
contained in any information provided by the Servicer including, without
limitation, in the information provided pursuant to Sections 3.17 and 11.07.
This indemnification shall survive the termination of this Agreement or the
termination of any party to this Agreement.
The Depositor shall indemnify and hold harmless the Servicer, the Trustee
and their respective officers, directors and Affiliates from and against any
actual losses, damages, penalties, fines, forfeitures, reasonable and necessary
legal fees and related costs, judgments and other costs and expenses that such
Person may sustain based upon (i) a breach of the Depositor's obligations under
this Section 11.04 or (ii) any material misstatement or omission contained in
any information provided by the Depositor.
The Trustee will have no duty or liability to verify the accuracy or
sufficiency of any information not prepared by it included in any Form 10-D,
Form 10-K or Form 8-K. The Trustee shall have no liability with respect to any
failure to properly prepare or file any Form 10-D or Form 10-K resulting from or
relating to the Trustee's inability or failure to receive any information in a
timely manner from the party responsible for delivery of such information. The
Trustee shall have no liability with respect to any failure to properly file any
Form 10-D or 10-K resulting from or relating to the Depositor's failure to
timely comply with the provisions of this section. Nothing herein shall be
construed to require the Trustee or any officer, director or Affiliate thereof
to sign any Form 10-D, Form 10-K or Form 8-K. Copies of all reports filed by the
Trustee under the Exchange Act shall be sent to the Depositor electronically or
at the address set forth in Section 10.05. Fees and expenses incurred by the
Trustee in connection with this Section 11.04 shall not be reimbursable from the
Trust Fund.
Upon any filing with the Commission, the Trustee shall promptly deliver to
the Depositor a copy of any executed report, statement or information.
107
To the extent that, following the Closing Date, the Depositor certifies
that reports and certifications differing from those required under this Section
11.04 are necessary to comply with the reporting requirements under the Exchange
Act, the parties hereto hereby agree that each will reasonably cooperate to
amend the provisions of this Section 11.04 in order to comply with such amended
reporting requirements and such amendment of this Section 11.04. Any such
amendment may result in the reduction of the reports executed by and filed on
behalf of the Depositor under the Exchange Act. Notwithstanding the foregoing,
the Trustee shall not be obligated to enter into any amendment pursuant to this
Section that adversely affects its obligations and immunities under this
Agreement.
Each of the parties acknowledges and agrees that the purpose of Sections
3.17, 11.07 and this Section 11.04 of this Agreement is to facilitate compliance
by the Depositor with the provisions of Regulation AB. Therefore, each of the
parties agree that (a) the obligations of the parties hereunder shall be
interpreted in such a manner as to accomplish that purpose, (b) the parties'
obligations hereunder will be supplemented and modified as necessary to be
consistent with any such amendments, interpretive advice or guidance in respect
of the requirements of Regulation AB, (c) the parties shall comply with
reasonable requests made by the Depositor for delivery of additional or
different information as the Depositor may determine in good faith is necessary
to comply with the provisions of Regulation AB, and (d) no amendment of this
Agreement shall be required to effect any such changes in the parties'
obligations as are necessary to accommodate evolving interpretations of the
provisions of Regulation AB.
Section 11.05 ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification.
Each Form 10-K shall include a certification (the "▇▇▇▇▇▇▇▇-▇▇▇▇▇
Certification") required by Rules 13a-14(d) and 15d-14(d) under the Exchange Act
(pursuant to Section 302 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and
regulations of the Commission promulgated thereunder (including any
interpretations thereof by the Commission's staff)). No later than March 15 of
each year, beginning in 2008, the Servicer and the Trustee shall (unless such
person is the Certifying Person), and the Servicer shall cause each Reporting
Subcontractor and the Trustee shall cause each Reporting Subcontractor to,
provide to the Person who signs the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification (the
"Certifying Person") a certification (each, a "Performance Certification"), in
the form attached hereto as Exhibit R on which the Certifying Person, the entity
for which the Certifying Person acts as an officer, and such entity's officers,
directors and Affiliates (collectively with the Certifying Person,
"Certification Parties") can reasonably rely. The senior officer in charge of
the servicing function of the Servicer shall serve as the Certifying Person on
behalf of the Trust Fund. Neither the Servicer nor the Depositor will request
delivery of a certification under this clause unless the Trustee is required
under the Exchange Act to file an annual report on Form 10-K with respect to the
Trust Fund. In the event that prior to the filing date of the Form 10-K in March
of each year, the Servicer or the Depositor has actual knowledge of information
material to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification, the Servicer or the Depositor, as
the case may be, shall promptly notify the Servicer and the Trustee. The
respective parties hereto agree to cooperate with all reasonable requests made
by any Certifying Person or Certification Party in connection with such Person's
attempt to conduct any due diligence that such Person reasonably believes to be
appropriate in order to allow it to deliver any ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification or
portion thereof with respect to the Trust Fund.
Section 11.06 Form 15 Filing.
Prior to January 30 of the first year in which the Depositor is able to do
so under applicable law, the Trustee on behalf of the Depositor shall file a
Form 15 relating to the automatic suspension of reporting in respect of the
Trust Fund under the Exchange Act.
108
Section 11.07 Report on Assessment of Compliance and Attestation.
(a) On or before March 15 of each calendar year, commencing in 2008,
unless no reporting obligation under the Exchange Act exists at such time with
respect to the Trust Fund:
(i) The Servicer shall deliver to the Trustee and the Servicer (with
a copy to the Depositor) a report (in form and substance reasonably
satisfactory to the Trustee) regarding the Servicer's or the Trustee's, as
applicable, assessment of compliance with the Servicing Criteria during
the immediately preceding calendar year, as required under Rules 13a-18
and 15d-18 of the Exchange Act and Item 1122 of Regulation AB. Such report
shall be signed by an authorized officer of such Person and shall address
each of the Servicing Criteria applicable to each party specified on a
certification delivered to the Trustee substantially in the form of
Exhibit S. To the extent any of the Servicing Criteria are not applicable
to such Person, with respect to asset-backed securities transactions taken
as a whole involving such Person and that are backed by the same asset
type backing the Certificates, such report shall include such a statement
to that effect. The Trustee and the Servicer, and each of their respective
officers and directors shall be entitled to rely upon each such servicing
criteria assessment.
(ii) The Servicer shall deliver to the Trustee, and the Trustee
shall provide on its own behalf, a report of a registered public
accounting firm reasonably acceptable to the Trustee that attests to, and
reports on, the assessment of compliance made by Servicer or the Trustee,
as applicable, and delivered pursuant to the preceding paragraphs. Such
attestation shall be in accordance with Rules 1-02(a)(3) and 2-02(g) of
Regulation S-X under the Securities Act and the Exchange Act, including,
without limitation that in the event that an overall opinion cannot be
expressed, such registered public accounting firm shall state in such
report why it was unable to express such an opinion. Such report must be
available for general use and not contain restricted use language. To the
extent any of the Servicing Criteria are not applicable to such Person,
with respect to asset-backed securities transactions taken as a whole
involving such Person and that are backed by the same asset type backing
the Certificates, such report shall include such a statement to that
effect.
(iii) The Servicer shall cause each Reporting Subcontractor to
deliver to the Trustee (with a copy to the Depositor) an assessment of
compliance and accountant's attestation as and when provided in paragraphs
(a) and (b) of this Section 11.07.
(iv) The Trustee shall cause each Reporting Subcontractor to deliver
to the Trustee and the Servicer (with a copy to the Depositor) an
assessment of compliance and accountant's attestation as and when provided
in paragraphs (a) and (b) of this Section.
(v) The Servicer shall execute (and the Servicer shall cause each
Reporting Subcontractor to execute) a reliance certificate to enable the
Certification Parties to rely upon each (A) annual compliance statement
provided pursuant to Section 3.17, (B) annual report on assessments of
compliance with servicing criteria provided pursuant to this Section 11.07
and (C) accountant's report provided pursuant to this Section 11.07 and
shall include a certification that each such annual compliance statement
or report discloses any deficiencies or defaults described to the
registered public accountants of such Person to enable such accountants to
render the certificates provided for in this Section 11.07.
(vi) The Trustee shall execute (and the Trustee shall cause each
Reporting Subcontractor to execute) a reliance certificate to enable the
Certification Parties to rely upon each (A) annual report on assessments
of compliance with servicing criteria provided pursuant to
109
this Section 11.07 and (C) accountant's report provided pursuant to
this Section 11.07 and shall include a certification that each such report
discloses any deficiencies or defaults described to the registered public
accountants of such Person to enable such accountants to render the
certificates provided for in this Section 11.07.
(b) In the event the Servicer, the Trustee or Reporting Subcontractor is
terminated or resigns during the term of this Agreement, such Person shall
provide documents and information required by this Section 11.07 with respect to
the period of time it was subject to this Agreement or provided services with
respect to the Trust Fund, the Certificates or the Mortgage Loans.
(c) An assessment of compliance provided by a Subcontractor pursuant to
Section 11.07(a)(iii) or (iv) need not address any elements of the Servicing
Criteria other than those specified by the Servicer or the Trustee, as
applicable, pursuant to Section 11.07(a)(i).
Section 11.08 Use of Subcontractors.
(a) [Reserved].
(b) It shall not be necessary for the Servicer or the Trustee to seek the
consent of the Depositor or any other party hereto to the utilization of any
Subcontractor. The Servicer or the Trustee, as applicable, shall promptly upon
request provide to the Trustee and the Depositor (or any designee of the
Depositor, such as the Servicer or administrator) a written description (in form
and substance satisfactory to the Depositor) of the role and function of each
Subcontractor utilized by such Person, specifying (i) the identity of each such
Subcontractor, (ii) which (if any) of such Subcontractors are "participating in
the servicing function" within the meaning of Item 1122 of Regulation AB, and
(iii) which elements of the Servicing Criteria will be addressed in assessments
of compliance provided by each Subcontractor identified pursuant to clause (ii)
of this paragraph.
As a condition to the utilization of any Subcontractor determined to be a
Reporting Subcontractor, the Servicer or the Trustee, as applicable, shall cause
any such Subcontractor used by such Person for the benefit of the Depositor to
comply with the provisions of Sections 11.07 and 11.09 of this Agreement to the
same extent as if such Subcontractor were the Servicer (except with respect to
the Servicer's duties with respect to preparing and filing any Exchange Act
Reports or as the Certifying Person) or the Trustee, as applicable. The Servicer
or the Trustee, as applicable, shall be responsible for obtaining from each
Subcontractor and delivering to the Trustee and the Servicer, any assessment of
compliance and attestation required to be delivered by such Subcontractor under
Section 11.05 and Section 11.07, in each case as and when required to be
delivered.
Section 11.09 Amendments.
In the event the parties to this Agreement desire to further clarify or
amend any provision of this Article 11, this Agreement shall be amended to
reflect the new agreement between the parties covering matters in this Article
11 pursuant to Section 10.01, which amendment shall not require any Opinion of
Counsel or Rating Agency confirmations or the consent of any Certificateholder.
If, during the period that the Depositor is required to file Exchange Act
Reports with respect to the Trust Fund, the Servicer is no longer an Affiliate
of the Depositor, the Depositor shall assume the obligations and
responsibilities of the Servicer in this Article 11 with respect to the
preparation and filing of the Exchange Act Reports and/or acting as the
Certifying Person, if the Depositor has received indemnity from such successor
Servicer satisfactory to the Depositor, and such Servicer has agreed to provide
a ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification to the Depositor substantially in the form of
Exhibit U.
110
* * * * * *
111
IN WITNESS WHEREOF, the Depositor, the Trustee, and the Seller and
Servicer have caused their names to be signed hereto by their respective
officers thereunto duly authorized as of the day and year first above written.
INDYMAC MBS, INC.
as Depositor
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Associate
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
INDYMAC BANK, F.S.B.
as Seller and Servicer
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
STATE OF CALIFORNIA )
: ss.:
COUNTY OF Los Angeles )
On this 27th day of February, 2007, before me, personally appeared ▇▇▇▇
▇▇▇▇▇▇▇▇, known to me to be a Vice President of IndyMac MBS, Inc., one of the
entities that executed the within instrument, and also known to me to be the
person who executed it on behalf of said entity, and acknowledged to me that
such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------
Notary Public
[NOTARIAL SEAL]
1
STATE OF CALIFORNIA )
: ss.:
COUNTY OF Orange )
On this 26th day of February, 2007, before me, personally appeared
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, known to me to be an Associate and a
Vice President, respectively, of Deutsche Bank National Trust Company, one of
the entities that executed the within instrument, and also known to me to be the
person who executed it on behalf of said entity, and acknowledged to me that
such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇
----------------------
Notary Public
[NOTARIAL SEAL]
2
STATE OF CALIFORNIA )
: ss.:
COUNTY OF Los Angeles )
On this 27th day of February, 2007, before me, personally appeared ▇▇▇▇
▇▇▇▇▇▇▇▇, known to me to be a Vice President of IndyMac Bank, F.S.B., one of the
entities that executed the within instrument, and also known to me to be the
person who executed it on behalf of said entity, and acknowledged to me that
such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------
Notary Public
[NOTARIAL SEAL]
3
Schedule I
MORTGAGE LOAN SCHEDULE [DELIVERED AT CLOSING TO TRUSTEE]
S-I-1
Schedule II
INDYMAC MBS, INC. MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-AR1
Representations and Warranties of the Seller/Servicer
Indy Mac Bank, F.S.B. ("IndyMac") hereby makes the representations and
warranties set forth in this Schedule II to the Depositor and the Trustee, as
of the Closing Date. Capitalized terms used but not otherwise defined in this
Schedule II shall have the meanings assigned thereto in the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement") relating to the
above-referenced Series, among IndyMac, as seller and servicer, IndyMac MBS,
Inc., as depositor, and Deutsche Bank National Trust Company, as trustee.
(1) IndyMac is duly organized as a federally insured savings bank
and is validly existing and in good standing under the laws of the
United States of America and is duly authorized and qualified to
transact any business contemplated by the Pooling and Servicing
Agreement to be conducted by IndyMac in any state in which a Mortgaged
Property is located or is otherwise not required under applicable law to
effect such qualification and, in any event, is in compliance with the
doing business laws of any such state, to the extent necessary to ensure
its ability to enforce each Mortgage Loan, to service the Mortgage Loans
in accordance with the Pooling and Servicing Agreement and to perform
any of its other obligations under the Pooling and Servicing Agreement
in accordance with the terms thereof.
(2) IndyMac has the full corporate power and authority to sell and
service each Mortgage Loan, and to execute, deliver and perform, and to
enter into and consummate the transactions contemplated by the Pooling
and Servicing Agreement and has duly authorized by all necessary
corporate action on the part of IndyMac the execution, delivery and
performance of the Pooling and Servicing Agreement; and the Pooling and
Servicing Agreement, assuming the due authorization, execution and
delivery thereof by the other parties thereto, constitutes a legal,
valid and binding obligation of IndyMac, enforceable against IndyMac in
accordance with its terms, except that (a) the enforceability thereof
may be limited by bankruptcy, insolvency, moratorium, receivership and
other similar laws relating to creditors' rights generally and (b) the
remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought.
(3) The execution and delivery of the Pooling and Servicing
Agreement by IndyMac, the sale and servicing of the Mortgage Loans by
IndyMac under the Pooling and Servicing Agreement, the consummation of
any other of the transactions contemplated by the Pooling and Servicing
Agreement, and the fulfillment of or compliance with the terms thereof
are in the ordinary course of business of IndyMac and will not (A)
result in a material breach of any term or provision of the charter or
by-laws of IndyMac or (B) materially conflict with, result in a material
breach, violation or acceleration of, or result in a material default
under, any other material agreement or instrument to which IndyMac is a
party or by which it may be bound, or (C) constitute a material
violation of any statute, order or regulation applicable to IndyMac of
any court, regulatory body, administrative agency or governmental body
having jurisdiction over IndyMac (including the OTS, the Federal Deposit
Insurance Corporation or any other governmental entity having regulatory
authority over IndyMac); and IndyMac is not in breach or violation of
any material indenture or other material agreement or instrument, or in
violation of any statute, order or regulation of any court, regulatory
body, administrative agency or
S-II-1
governmental body having jurisdiction over it (including the OTS, the
Federal Deposit Insurance Corporation or any other governmental entity
having regulatory authority over IndyMac) which breach or violation may
materially impair IndyMac's ability to perform or meet any of its
obligations under the Pooling and Servicing Agreement.
(4) IndyMac is an approved servicer of conventional mortgage loans
for FNMA or FHLMC or is a mortgagee approved by the Secretary of Housing
and Urban Development pursuant to Sections 203 and 211 of the National
Housing Act.
(5) No litigation is pending or, to the best of IndyMac's
knowledge, threatened against IndyMac that would prohibit the execution
or delivery of, or performance under, the Pooling and Servicing
Agreement by IndyMac.
(6) IndyMac is a member of MERS in good standing, and will comply
in all material respects with the rules and procedures of MERS in
connection with the servicing of the MERS Mortgage Loans for as long as
such Mortgage Loans are registered with MERS.
(7) Notwithstanding any federal or state law to the contrary, the
Servicer shall not impose any Prepayment Charge at any time when the
mortgage is accelerated as a result of the borrower's default in making
the scheduled payments.
S-II-2
Schedule III
INDYMAC MBS, INC.
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-AR1
Representations and Warranties as to the Mortgage Loans
IndyMac Bank, F.S.B. ("IndyMac") hereby makes the representations and
warranties set forth in this Schedule III to the Depositor and the Trustee, as
of the Closing Date or if so specified in this Schedule III, as of the Cut-off
Date with respect to each Mortgage Loan. Capitalized terms used but not
otherwise defined in this Schedule III shall have the meanings assigned to
them in the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement") relating to the above-referenced Series, among IndyMac, as seller
and servicer, IndyMac MBS, Inc., as depositor, and Deutsche Bank National
Trust Company, as trustee.
(1) The information set forth on Schedule I to the Pooling and
Servicing Agreement with respect to each Mortgage Loan is true and
correct in all material respects as of the Closing Date.
(2) All regularly scheduled monthly payments due with respect to
each Mortgage Loan up to and including the Due Date before the Cut-off
Date have been made; and as of the Cut-off Date, no Mortgage Loan had a
regularly scheduled monthly payment that was 60 or more days Delinquent
during the twelve months before the Cut-off Date.
(3) With respect to any Mortgage Loan that is not a Cooperative
Loan, each Mortgage is a valid and enforceable first lien on the
Mortgaged Property subject only to (a) the lien of nondelinquent current
real property taxes and assessments and liens or interests arising under
or as a result of any federal, state or local law, regulation or
ordinance relating to hazardous wastes or hazardous substances and, if
the related Mortgaged Property is a unit in a condominium project or
planned unit development, any lien for common charges permitted by
statute or homeowner association fees, (b) covenants, conditions and
restrictions, rights of way, easements and other matters of public
record as of the date of recording of such Mortgage, such exceptions
appearing of record being generally acceptable to mortgage lending
institutions in the area wherein the related Mortgaged Property is
located or specifically reflected in the appraisal made in connection
with the origination of the related Mortgage Loan, and (c) other matters
to which like properties are commonly subject which do not materially
interfere with the benefits of the security intended to be provided by
such Mortgage.
(4) Immediately before the assignment of the Mortgage Loans to the
Depositor, the Seller had good title to, and was the sole owner of, each
Mortgage Loan free and clear of any pledge, lien, encumbrance or
security interest and had full right and authority, subject to no
interest or participation of, or agreement with, any other party, to
sell and assign the same pursuant to the Pooling and Servicing
Agreement.
(5) As of the Closing Date, there was no delinquent tax or
assessment lien against the related Mortgaged Property.
(6) There is no valid offset, defense or counterclaim to any
Mortgage Note or Mortgage, including the obligation of the Mortgagor to
pay the unpaid principal of or interest on such Mortgage Note.
S-IV-1
(7) There are no mechanics' liens or claims for work, labor or
material affecting any Mortgaged Property which are or may be a lien
prior to or equal with, the lien of such Mortgage, except those which
are insured against by the title insurance policy referred to in item
(11) below.
(8) No Mortgaged Property has been materially damaged by water,
fire, earthquake, windstorm, flood, tornado or similar casualty
(excluding casualty from the presence of hazardous wastes or hazardous
substances, as to which the Seller makes no representation) so as to
affect adversely the value of the related Mortgaged Property as security
for the Mortgage Loan.
(9) Each Mortgage Loan at origination complied in all material
respects with applicable local, state and federal laws and regulations,
including usury, equal credit opportunity, real estate settlement
procedures, truth-in-lending, and disclosure laws, or any noncompliance
does not have a material adverse effect on the value of the related
Mortgage Loan.
(10) The Seller has not modified the Mortgage in any material
respect (except that a Mortgage Loan may have been modified by a written
instrument which has been recorded or submitted for recordation, if
necessary, to protect the interests of the Certificateholders and which
has been delivered to the Trustee); satisfied, cancelled or subordinated
such Mortgage in whole or in part; released the related Mortgaged
Property in whole or in part from the lien of such Mortgage; or executed
any instrument of release, cancellation, modification or satisfaction
with respect thereto.
(11) A lender's policy of title insurance together with a
condominium endorsement and extended coverage endorsement, if
applicable, in an amount at least equal to the Cut-off Date Principal
Balance of each such Mortgage Loan or a commitment (binder) to issue the
same was effective on the date of the origination of each Mortgage Loan
and each such policy is valid and remains in full force and effect.
(12) Each Mortgage Loan was originated (within the meaning of
Section 3(a)(41) of the Securities Exchange Act of 1934, as amended) by
an entity that satisfied at the time of origination the requirements of
Section 3(a)(41) of the Securities Exchange Act of 1934, as amended.
(13) All of the improvements which were included for the purpose
of determining the Appraised Value of the Mortgaged Property lie wholly
within the boundaries and building restriction lines of such property,
and no improvements on adjoining properties encroach upon the Mortgaged
Property, unless such failure to be wholly within such boundaries and
restriction lines or such encroachment, as the case may be, does not
have a material effect on the value of the Mortgaged Property.
(14) As of the date of origination of each Mortgage Loan, no
improvement located on or being part of the Mortgaged Property is in
violation of any applicable zoning law or regulation unless such
violation would not have a material adverse effect on the value of the
related Mortgaged Property. All inspections, licenses and certificates
required to be made or issued with respect to all occupied portions of
the Mortgaged Property and, with respect to the use and occupancy of the
same, including certificates of occupancy and fire underwriting
certificates, have been made or obtained from the appropriate
authorities, unless the lack thereof would not have a material adverse
effect on the value of the Mortgaged Property.
(15) The Mortgage Note and the related Mortgage are genuine, and
each is the legal, valid and binding obligation of the maker thereof,
enforceable in accordance with its terms and under applicable law.
A-2
(16) The proceeds of the Mortgage Loan have been fully disbursed
and there is no requirement for future advances thereunder.
(17) The related Mortgage contains customary and enforceable
provisions which render the rights and remedies of the holder thereof
adequate for the realization against the Mortgaged Property of the
benefits of the security, including, (i) in the case of a Mortgage
designated as a deed of trust, by trustee's sale, and (ii) otherwise by
judicial foreclosure.
(18) With respect to each Mortgage constituting a deed of trust, a
trustee, duly qualified under applicable law to serve as such, has been
properly designated and currently so serves and is named in such
Mortgage, and no fees or expenses are or will become payable by the
Certificateholders to the trustee under the deed of trust, except in
connection with a trustee's sale after default by the Mortgagor.
(19) At the Closing Date, the improvements upon each Mortgaged
Property are covered by a valid and existing hazard insurance policy
with a generally acceptable carrier that provides for fire and extended
coverage and coverage for such other hazards as are customarily required
by institutional single family mortgage lenders in the area where the
Mortgaged Property is located, and the Seller has received no notice
that any premiums due and payable thereon have not been paid; the
Mortgage obligates the Mortgagor thereunder to maintain all such
insurance including flood insurance at the Mortgagor's cost and expense.
Anything to the contrary in this item (19) notwithstanding, no breach of
this item (19) shall be deemed to give rise to any obligation of the
Seller to repurchase or substitute for such affected Mortgage Loan or
Loans so long as the Servicer maintains a blanket policy pursuant to the
second paragraph of Section 3.10(a) of the Pooling and Servicing
Agreement.
(20) If at the time of origination of each Mortgage Loan, the
related Mortgaged Property was in an area then identified in the Federal
Register by the Federal Emergency Management Agency as having special
flood hazards, a flood insurance policy in a form meeting the
then-current requirements of the Flood Insurance Administration is in
effect with respect to the Mortgaged Property with a generally
acceptable carrier.
(21) There is no proceeding pending or threatened for the total or
partial condemnation of any Mortgaged Property, nor is such a proceeding
currently occurring.
(22) There is no material event which, with the passage of time or
with notice and the expiration of any grace or cure period, would
constitute a material non-monetary default, breach, violation or event
of acceleration under the Mortgage or the related Mortgage Note; and the
Seller has not waived any material non-monetary default, breach,
violation or event of acceleration.
(23) Each Mortgage File contains an appraisal of the related
Mortgaged Property in a form acceptable to FNMA or FHLMC.
(24) Any leasehold estate securing a Mortgage Loan has a stated
term of not less than five years in excess of the term of the related
Mortgage Loan.
(25) Each Mortgage Loan was selected from among the outstanding
adjustable rate one- to four-family mortgage loans in the Seller's
portfolio at the Closing Date as to which the representations and
warranties made with respect to the Mortgage Loans set forth in this
Schedule III can be made. No such selection was made in a manner
intended to adversely affect the interests of the Certificateholders.
A-3
(26) With respect to Loan Group 1 and Loan Group 2, two Mortgage
Loans and one Mortgage Loan, respectively, are Cooperative Loans.
(27) None of the Mortgage Loans is a "high cost" loan, "covered"
loan or any other similarly designated loan as defined under any state,
local or federal law, as defined by applicable predatory and abusive
lending laws.
(28) No proceeds from any Mortgage Loan underlying the
Certificates were used to finance single-premium credit insurance
policies.
(29) None of the Mortgage Notes related to the Mortgage Loans
impose a Prepayment Charge on the related Mortgage Loan for a term in
excess of five years from the origination of the Mortgage Loan.
(30) Each Mortgage Loan was in compliance with the anti-predatory
lending eligibility for purchase requirements of ▇▇▇▇▇▇ Mae's Selling
Guide.
(31) Each Mortgage Loan has been underwritten and serviced
substantially in accordance with the Seller's guidelines, subject to
such variances as are reflected on the Mortgage Loan Schedule or that
the Seller has approved.
(32) No Mortgage Loan is a High Cost Loan or Covered Loan, as
applicable (as such terms are defined in the then-current version of
Standard & Poor's LEVELS(R) Glossary, which is now Version 5.7 Revised,
Appendix E) and no Mortgage Loan originated on or after Oct. 1, 2002
through March 6, 2003 is governed by the Georgia Fair Lending Act.
(33) The Pooling and Servicing Agreement creates a valid and
continuing "security interest" (as defined in Section 1-201(37) of the
UCC) in each Mortgage Note in favor of the Trustee, which security
interest is prior to all other liens and is enforceable as such against
creditors of and purchasers from the Depositor. Each Mortgage Note
constitutes "promissory notes" (as defined in Section 9-102(a)(65) of
the UCC). Immediately before the assignment of each Mortgage Note to the
Trustee, the Depositor had good and marketable title to such Mortgage
Note free and clear of any lien, claim, encumbrance of any Person. All
original executed copies of each Mortgage Note have been or shall be
delivered to the Trustee within five Business Days following the Closing
Date. Other than the security interest granted to the Trustee, the
Depositor has not pledged, assigned, sold, granted a security interest
in, or otherwise conveyed any Mortgage Note. The Depositor has not
authorized the filing of and is not aware of any financing statements
against the Depositor that include a description of any of the Mortgage
Notes. The Depositor is not aware of any judgment or tax liens filed
against the Depositor. None of the Mortgage Notes has any marks or
notations indicating that they have been pledged, assigned or otherwise
conveyed to any Person other than the Trustee.
(34) To the best of the Seller's knowledge, there was no fraud
involved in the origination of any Mortgage Loan by the mortgagee or by
the Mortgagor, any appraiser or any other party involved in the
origination of the Mortgage Loan.
(35) Each Mortgage Loan constitutes a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code.
A-4
(36) Each Mortgage Loan at the time it was made complied in all
material respects with applicable local, state, and federal laws,
including, but not limited to, all applicable predatory and abusive
lending laws.
(37) No Mortgage Loan is subject to the requirements of the Home
Ownership and Equity Protection Act of 1994.
(38) No Mortgage Loan is a "High-Cost Home Loan" as defined in any
of the following statutes: the Georgia Fair Lending Act, as amended (the
"Georgia Act"), the New York Banking Law 6-1, the Arkansas Home Loan
Protection Act effective July 16, 2003 (Act 1340 of 2003), the Kentucky
high-cost home loan statute effective June 24, 2003 (Ky. Rev. Stat.
Section 360.100), the New Jersey Home Ownership Act effective November
27, 2003 (N.J.S.A. 46:10B-22 et seq.), or the New Mexico Home Loan
Protection Act effective January 1, 2004 (N.M. Stat. ▇▇▇ ▇▇.▇▇. 58-21A-1
et seq.). No Mortgage Loan subject to the Georgia Act and secured by
owner occupied real property or an owner occupied manufactured home
located in the state of Georgia was originated (or modified) on or after
October 1, 2002 through and including March 6, 2003. No Mortgage Loan is
a "High-Risk Home Loan" as defined in the Illinois High-Risk Home Loan
Act effective January 1, 2004 (815 Ill. Comp. Stat. 137/1 et seq.). None
of the Mortgage Loans that are secured by property located in the State
of Illinois are in violation of the provisions of the Illinois Interest
Act (815 Ill. Comp. Stat. 205/1 et seq.).
(39) None of the Mortgage Loans is a "high cost" loan, "covered"
loan (excluding home loans defined as "covered home loans" in the New
Jersey Home Ownership Security Act of 2002 that were originated between
November 26, 2003 and July 7, 2004), "high risk home" or "predatory"
loan or any other similarly designated loan as defined under any state,
local or federal law, as defined by applicable predatory and abusive
lending laws.
A-5
SCHEDULE IV
[Reserved].
S-IV-1
SCHEDULE V
FORM OF MONTHLY REPORT
[On File with the Trustee]
S-V-1
EXHIBIT A
[FORM OF SENIOR CERTIFICATE (OTHER THAN NOTIONAL AMOUNT CERTIFICATES)]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
[UNTIL THIS CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING
UNDERWRITING, NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE
TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A
REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT, AND IS NOT
INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF, AN EMPLOYEE BENEFIT PLAN
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR
A PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE, OR AN OPINION OF
COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, UNTIL THIS CERTIFICATE
HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING, ANY PURPORTED
TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF A BENEFIT PLAN OR ARRANGEMENT
SUBJECT TO ERISA OR TO SECTION 4975 OF THE CODE WITHOUT THE OPINION OF COUNSEL
SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO
EFFECT.]
A-1
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Certificate
Balance of this
Certificate
("Denomination") : $
Initial Certificate
Balances of all
Certificates of this
Class : $
CUSIP :
Interest Rate : %
Maturity Date :
INDYMAC MBS, INC.
IndyMac INDX Mortgage Loan Trust 200_-_
Mortgage Pass-Through Certificates, Series 200_-_
Class [__]
evidencing a percentage interest in the distributions
allocable to the Certificates of the above-referenced Class with
respect to a Trust Fund consisting primarily of a pool of
conventional mortgage loans (the "Mortgage Loans") secured by
first liens on one- to four-family residential properties.
IndyMac MBS, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein or in the Agreement (defined below). Accordingly, the Certificate
Balance at any time may be less than the Certificate Balance as set forth
herein. This Certificate does not evidence an obligation of, or an interest
in, and is not guaranteed by the Depositor, the Seller, the Servicer or the
Trustee referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that ________________________________ is the registered
owner of the Percentage Interest evidenced by this Certificate (obtained by
dividing the denomination of this Certificate by the aggregate Initial
Certificate Balances of all Certificates of the Class to which this
Certificate belongs) in certain monthly distributions with respect to a Trust
Fund consisting primarily of the Mortgage Loans deposited by IndyMac MBS, Inc.
(the "Depositor"). The Trust Fund was created pursuant to a Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
"Agreement") among the Depositor, IndyMac Bank, F.S.B., as seller (in such
capacity, the "Seller") and as servicer (in such capacity, the "Servicer"),
and Deutsche Bank National Trust Company, as trustee (the "Trustee"). To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
A-2
[Until this certificate has been the subject of an ERISA-Qualifying
Underwriting, no transfer of a Certificate of this Class shall be made unless
the Trustee shall have received either (i) a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Trustee, to the effect that such transferee is not an
employee benefit plan subject to Section 406 of ERISA or Section 4975 of the
Code, or a person investing on behalf of or with plan assets of any such plan,
which representation letter shall not be an expense of the Trustee or the
Servicer, or (ii) in the case of any such Certificate presented for
registration in the name of an employee benefit plan subject to ERISA or
Section 4975 of the Code (or comparable provisions of any subsequent
enactments), or a trustee of any such plan or any other person acting on
behalf of any such plan, an Opinion of Counsel satisfactory to the Trustee to
the effect that the purchase and holding of such Certificate will not result
in a nonexempt prohibited transaction under Section 406 of ERISA or Section
4975 of the Code and will not subject the Trustee or the Servicer to any
obligation in addition to those undertaken in the Agreement, which Opinion of
Counsel shall not be an expense of the Trustee, the Servicer, or the Trust
Fund. Notwithstanding anything else to the contrary herein, until this
certificate has been the subject of an ERISA-Qualifying Underwriting, any
purported transfer of a Certificate of this Class to or on behalf of an
employee benefit plan subject to ERISA or to the Code without the opinion of
counsel satisfactory to the Trustee as described above shall be void and of no
effect.]
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
A-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________, 20__
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By ______________________
Countersigned:
By ___________________________
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
A-4
EXHIBIT B
[FORM OF SUBORDINATED CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN
CERTIFICATES AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
[THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE
WITHOUT REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION
EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH
THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.]
[UNTIL THIS CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING
UNDERWRITING, NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE
TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A
REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT, AND IS NOT
INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF, AN EMPLOYEE BENEFIT PLAN
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR
A PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE, OR AN OPINION OF
COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, UNTIL THIS CERTIFICATE
HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING, ANY PURPORTED
TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF A BENEFIT PLAN OR ARRANGEMENT
SUBJECT TO ERISA OR TO SECTION 4975 OF THE CODE WITHOUT THE OPINION OF COUNSEL
SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO
EFFECT.]
[NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED
UNLESS THE TRANSFEREE REPRESENTS TO THE TRUSTEE THAT SUCH TRANSFEREE IS NOT
AND IS NOT INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR, IF THE
CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING,
B-1
DELIVERS A REPRESENTATION IN ACCORDANCE WITH THE PROVISIONS OF THE
AGREEMENT REFERRED TO HEREIN, OR DELIVERS TO THE TRUSTEE AN OPINION OF COUNSEL
IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER
OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO
ERISA OR TO SECTION 4975 OF THE CODE WITHOUT THE OPINION OF COUNSEL
SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO
EFFECT.]
B-2
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Certificate
Balance of this
Certificate
("Denomination") : $
Initial Certificate
Balances of all
Certificates of this
Class : $
CUSIP :
INDYMAC MBS, INC.
IndyMac INDX Mortgage Loan Trust 200_-_
Mortgage Pass-Through Certificates, Series 200_-_
Class [___]
evidencing a percentage interest in the distributions
allocable to the Certificates of the above-referenced Class with
respect to a Trust Fund consisting primarily of a pool of
conventional mortgage loans (the "Mortgage Loans") secured by
first liens on one- to four-family residential properties.
IndyMac MBS, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as set forth
herein or in the Agreement (defined below). Accordingly, the Certificate
Balance at any time may be less than the Certificate Balance as set forth
herein. This Certificate does not evidence an obligation of, or an interest
in, and is not guaranteed by the Depositor, the Seller, the Servicer or the
Trustee referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that ________________________________ is the registered owner
of the Percentage Interest evidenced by this Certificate (obtained by dividing
the denomination of this Certificate by the aggregate Initial Certificate
Balances of the denominations of all Certificates of the Class to which this
Certificate belongs) in certain monthly distributions with respect to a Trust
Fund consisting primarily of the Mortgage Loans deposited by IndyMac MBS, Inc.
(the "Depositor"). The Trust Fund was created pursuant to a Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
"Agreement") among the Depositor, IndyMac Bank, F.S.B., as seller (in such
capacity, the "Seller"), and as servicer (in such capacity, the "Servicer"),
and Deutsche Bank National Trust Company, as trustee (the "Trustee"). To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
[No transfer of a Certificate of this Class shall be made unless such transfer
is made pursuant to an effective registration statement under the Securities
Act and any applicable state securities laws or is
B-3
exempt from the registration requirements under said Act and such laws. In the
event that a transfer is to be made in reliance upon an exemption from the
Securities Act and such laws, in order to assure compliance with the
Securities Act and such laws, the Certificateholder desiring to effect such
transfer and such Certificateholder's prospective transferee shall each
certify to the Trustee in writing the facts surrounding the transfer. In the
event that such a transfer is to be made within three years from the date of
the initial issuance of Certificates pursuant hereto, there shall also be
delivered (except in the case of a transfer pursuant to Rule 144A of the
Securities Act) to the Trustee an Opinion of Counsel that such transfer may be
made pursuant to an exemption from the Securities Act and such state
securities laws, which Opinion of Counsel shall not be obtained at the expense
of the Trustee, the Seller, the Servicer or the Depositor. The Holder hereof
desiring to effect such transfer shall, and does hereby agree to, indemnify
the Trustee and the Depositor against any liability that may result if the
transfer is not so exempt or is not made in accordance with such federal and
state laws.]
[Until this certificate has been the subject of an ERISA-Qualifying
Underwriting, no transfer of a Certificate of this Class shall be made unless
the Trustee shall have received either (i) a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Trustee, to the effect that such transferee is not an
employee benefit plan subject to Section 406 of ERISA or Section 4975 of the
Code, or a person investing on behalf of or with plan assets of any such plan,
which representation letter shall not be an expense of the Trustee or the
Servicer, or (ii) in the case of any such Certificate presented for
registration in the name of an employee benefit plan subject to ERISA or
Section 4975 of the Code (or comparable provisions of any subsequent
enactments), or a trustee of any such plan or any other person acting on
behalf of any such plan, an Opinion of Counsel satisfactory to the Trustee to
the effect that the purchase and holding of such Certificate will not result
in a nonexempt prohibited transaction under Section 406 of ERISA or Section
4975 of the Code and will not subject the Trustee or the Servicer to any
obligation in addition to those undertaken in the Agreement, which Opinion of
Counsel shall not be an expense of the Trustee, the Servicer, or the Trust
Fund. Notwithstanding anything else to the contrary herein, until this
certificate has been the subject of an ERISA-Qualifying Underwriting, any
purported transfer of a Certificate of this Class to or on behalf of an
employee benefit plan subject to ERISA or to the Code without the opinion of
counsel satisfactory to the Trustee as described above shall be void and of no
effect.]
[No transfer of a Certificate of this Class shall be made unless the Trustee
shall have received either (i) a representation [letter] from the transferee
of such Certificate, acceptable to and in form and substance satisfactory to
the Trustee, to the effect that such transferee is not an employee benefit
plan or other benefit plan subject to Section 406 of ERISA or Section 4975 of
the Code, or a person acting on behalf of or investing plan assets of any such
plan, which representation letter shall not be an expense of the Trustee or
the Servicer, (ii) if the purchaser is an insurance company and the
Certificate has been the subject of an ERISA-Qualifying Underwriting, a
representation that the purchaser is an insurance company which is purchasing
such Certificates with funds contained in an "insurance company general
account" (as such term is defined in Section V(e) of Prohibited Transaction
Class Exemption 95-60 ("PTCE 95-60")) and that the purchase and holding of
such Certificates are covered under Sections I and III of PTCE 95-60 or (iii)
in the case of any such Certificate presented for registration in the name of
an employee benefit plan subject to ERISA or Section 4975 of the Code (or
comparable provisions of any subsequent enactments), or a trustee of any such
plan or any other person acting on behalf of any such plan, an Opinion of
Counsel satisfactory to the Trustee to the effect that the purchase or holding
of such Certificate will not result in a nonexempt prohibited transaction
under ERISA or Section 4975 of the Code and will not subject the Trustee or
the Servicer to any obligation in addition to those undertaken in the
Agreement, which Opinion of Counsel shall not be an expense of the Trustee,
the Servicer or the Trust Fund. Notwithstanding anything else to the contrary
herein, any purported transfer of a Certificate of this Class to or on behalf
of an employee benefit plan subject to ERISA or to Section 4975 of the Code
B-4
without the opinion of counsel satisfactory to the Trustee as described above
shall be void and of no effect.]
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement or
be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
B-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________, 20__
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By ______________________
Countersigned:
By ___________________________
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
B-6
EXHIBIT C
[FORM OF CLASS A-R CERTIFICATE]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED
UNLESS THE PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN
ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED
UNLESS THE TRANSFEREE REPRESENTS TO THE TRUSTEE THAT SUCH TRANSFEREE IS NOT
AND IS NOT INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR, IF SUCH
TRANSFEREE IS AN INSURANCE COMPANY, DELIVERS A REPRESENTATION IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN, OR DELIVERS TO THE
TRUSTEE AN OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE
AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY
HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN
EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO SECTION 4975 OF THE CODE WITHOUT
THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE
VOID AND OF NO EFFECT.
C-1
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Certificate
Balance of this
Certificate
("Denomination") : $
Initial Certificate
Balances of all
Certificates of this
Class : $
CUSIP :
INDYMAC MBS, INC.
IndyMac INDX Mortgage Loan Trust 200_-_
Mortgage Pass-Through Certificates, Series 200_-_
evidencing the distributions allocable to the Class A-R
Certificates with respect to a Trust Fund consisting primarily of
a pool of conventional mortgage loans (the "Mortgage Loans")
secured by first liens on one- to four-family residential
properties.
IndyMac MBS, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as set forth
herein or in the Agreement (defined below). Accordingly, the Certificate
Balance at any time may be less than the Certificate Balance as set forth
herein. This Certificate does not evidence an obligation of, or an interest
in, and is not guaranteed by the Depositor, the Seller, the Servicer or the
Trustee referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that ________________________________ is the registered owner
of the Percentage Interest (obtained by dividing the denomination of this
Certificate by the aggregate Initial Certificate Balances of the denominations
of all Certificates of the Class to which this Certificate belongs) in certain
monthly distributions with respect to a Trust Fund consisting of the Mortgage
Loans deposited by IndyMac MBS, Inc. (the "Depositor"). The Trust Fund was
created pursuant to a Pooling and Servicing Agreement dated as of the Cut-off
Date specified above (the "Agreement") among the Depositor, IndyMac Bank,
F.S.B., as seller (in such capacity, the "Seller") and as servicer (in such
capacity, the "Servicer"), and Deutsche Bank National Trust Company, as
trustee (the "Trustee"). To the extent not defined herein, the capitalized
terms used herein have the meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the Trust Fund
will be made only upon presentment and surrender of this Class A-R Certificate
at the Corporate Trust Office.
No transfer of a Class A-R Certificate shall be made unless the Trustee shall
have received either (i) a representation letter from the transferee of such
Certificate, acceptable to and in form and substance
C-2
satisfactory to the Trustee, to the effect that such transferee is not an
employee benefit plan subject to Section 406 of ERISA or Section 4975 of the
Code, nor a person investing on behalf of or with plan assets of any such
plan, which representation letter shall not be an expense of the Trustee or
the Servicer, (ii) if the purchaser is an insurance company, a representation
that the purchaser is an insurance company which is purchasing such
Certificate with funds contained in an "insurance company general account" (as
such term is defined in Section V(e) of Prohibited Transaction Class Exemption
95-60 ("PTCE 95-60")) and that the purchase and holding of such Certificate
are covered under Sections I and III of PTCE 95-60 or (iii) in the case of any
such Certificate presented for registration in the name of an employee benefit
plan subject to ERISA or Section 4975 of the Code (or comparable provisions of
any subsequent enactments), or a trustee of any such plan or any other person
acting on behalf of any such plan, an Opinion of Counsel satisfactory to the
Trustee to the effect that the purchase or holding of such Class A-R
Certificate will not result in a nonexempt prohibited transaction under
Section 406 of ERISA or Section 4975 of the Code and will not subject the
Trustee or the Servicer to any obligation in addition to those undertaken in
the Agreement, which Opinion of Counsel shall not be an expense of the
Trustee, the Servicer or the Trust Fund. Notwithstanding anything else to the
contrary herein, any purported transfer of a Class A-R Certificate to or on
behalf of an employee benefit plan subject to ERISA or to Section 4975 of the
Code without the opinion of counsel satisfactory to the Trustee as described
above shall be void and of no effect.
Each Holder of this Class A-R Certificate will be deemed to have agreed to be
bound by the restrictions of the Agreement, including but not limited to the
restrictions that (i) each person holding or acquiring any Ownership Interest
in this Class A-R Certificate must be a Permitted Transferee, (ii) no
Ownership Interest in this Class A-R Certificate may be transferred without
delivery to the Trustee of (a) a transfer affidavit of the proposed transferee
and (b) a transfer certificate of the transferor, each of such documents to be
in the form described in the Agreement, (iii) each person holding or acquiring
any Ownership Interest in this Class A-R Certificate must agree to require a
transfer affidavit and to deliver a transfer certificate to the Trustee as
required pursuant to the Agreement, (iv) each person holding or acquiring an
Ownership Interest in this Class A-R Certificate must agree not to transfer an
Ownership Interest in this Class A-R Certificate if it has actual knowledge
that the proposed transferee is not a Permitted Transferee and (v) any
attempted or purported transfer of any Ownership Interest in this Class A-R
Certificate in violation of such restrictions will be absolutely null and void
and will vest no rights in the purported transferee.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement or
be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
C-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________, 20__
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By ______________________
Countersigned:
By ___________________________
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
C-4
EXHIBIT D
[FORM OF NOTIONAL AMOUNT CERTIFICATES].
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
[UNTIL THIS CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING
UNDERWRITING, NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE
TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A
REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AND IS NOT
INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF AN EMPLOYEE BENEFIT PLAN SUBJECT
TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR A PLAN
SUBJECT TO SECTION 4975 OF THE CODE, OR AN OPINION OF COUNSEL IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING
ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS
CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO
SECTION 4975 OF THE CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE
TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.]
THIS CERTIFICATE HAS NO PRINCIPAL BALANCE AND IS NOT ENTITLED TO ANY
DISTRIBUTIONS IN RESPECT OF PRINCIPAL.
D-1
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Notional Amount
of this Certificate
("Denomination") : $
Initial Notional Amount
of all Certificates of
this Class : $
CUSIP :
Interest Rate : %
Maturity Date :
INDYMAC MBS, INC.
Residential Asset Securitization Trust 200_-_
Mortgage Pass-Through Certificates, Series 200_-_
Class [__]
evidencing a percentage interest in the distributions
allocable to the Certificates of the above-referenced Class with
respect to a Trust Fund consisting primarily of a pool of
conventional mortgage loans (the "Mortgage Loans") secured by
first liens on one- to four-family residential properties.
IndyMac MBS, Inc., as Depositor
This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Seller, the Servicer or the
Trustee referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
D-2
This certifies that __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination
of this Certificate by the aggregate Initial Notional Amounts of all
Certificates of the Class to which this Certificate belongs) in certain
monthly distributions with respect to a Trust Fund consisting primarily of the
Mortgage Loans deposited by IndyMac MBS, Inc. (the "Depositor"). The Trust
Fund was created pursuant to a Pooling and Servicing Agreement dated as of the
Cut-off Date specified above (the "Agreement") among the Depositor, IndyMac
Bank, F.S.B., as seller (in such capacity, the "Seller") and as servicer (in
such capacity, the "Servicer"), and Deutsche Bank National Trust Company, as
trustee (the "Trustee"). To the extent not defined herein, the capitalized
terms used herein have the meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
[Until this certificate has been the subject of an ERISA-Qualifying
Underwriting, no transfer of a Certificate of this Class shall be made unless
the Trustee shall have received either (i) a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Trustee, to the effect that such transferee is not an
employee benefit plan subject to Section 406 of ERISA or Section 4975 of the
Code, nor a person investing on behalf of or with plan assets of any such
plan, which representation letter shall not be an expense of the Trustee or
the Servicer, or (ii) in the case of any such Certificate presented for
registration in the name of an employee benefit plan subject to ERISA or
Section 4975 of the Code (or comparable provisions of any subsequent
enactments), or a trustee of any such plan or any other person acting on
behalf of any such plan, an Opinion of Counsel satisfactory to the Trustee and
the Servicer to the effect that the purchase or holding of such Certificate
will not result in a nonexempt prohibited transaction under Section 406 of
ERISA or Section 4975 of the Code and will not subject the Trustee or the
Servicer to any obligation in addition to those undertaken in the Agreement,
which Opinion of Counsel shall not be an expense of the Trustee, the Servicer,
or the Trust Fund. Notwithstanding anything else to the contrary herein, until
this certificate has been the subject of an ERISA-Qualifying Underwriting, any
purported transfer of a Certificate of this Class to or on behalf of an
employee benefit plan subject to ERISA or to the Code without the opinion of
counsel satisfactory to the Trustee as described above shall be void and of no
effect.]
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
D-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________, 20__
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By ______________________
Countersigned:
By ___________________________
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
D-4
EXHIBIT E
[Form of Reverse of Certificates]
INDYMAC MBS, INC.
IndyMac INDX Mortgage Loan Trust 200_-_
Mortgage Pass-Through Certificates, Series 200_-_
This Certificate is one of a duly authorized issue of Certificates
designated as IndyMac MBS, Inc. Mortgage Pass-Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account
for payment hereunder and that the Trustee is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
applicable to each Distribution Date is the last Business Day of the month
next preceding the month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days
prior to the Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such
final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any
time by the Depositor, the Servicer and the Trustee with the consent of the
Holders of Certificates affected by such amendment evidencing the requisite
Percentage Interest, as provided in the Agreement. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
E-1
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office, accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar
duly executed by the holder hereof or such holder's attorney duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
in the Trust Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Servicer, the Seller and the Trustee and any agent of
the Depositor or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and neither
the Depositor, the Trustee, nor any such agent shall be affected by any notice
to the contrary.
On any Distribution Date on which the aggregate Stated Principal Balance
of the Mortgage Loans in the mortgage pool is less than 10% of the Cut-off
Date Pool Principal Balance, the Servicer will have the option to repurchase,
in whole, from the Trust Fund all remaining Mortgage Loans in the mortgage
pool and all property acquired in respect of the Mortgage Loans in the
mortgage pool at a purchase price determined as provided in the Agreement. In
the event that no such optional termination occurs, the obligations and
responsibilities created by the Agreement will terminate upon the later of the
maturity or other liquidation (or any advance with respect thereto) of the
last Mortgage Loan remaining in the Trust Fund or the disposition of all
property in respect thereof and the distribution to Certificateholders of all
amounts required to be distributed pursuant to the Agreement. In no event,
however, will the trust created by the Agreement continue beyond the
expiration of 21 years from the death of the last survivor of the descendants
living at the date of the Agreement of a certain person named in the
Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
E-2
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _____________________________________________________________
______________________________________________________________________________
___________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
______________________________________________________________________________
Dated:
____________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _______________________________________________
_____________________________________________________________________________,
for the account of __________________________________________________________,
account number , or, if mailed by check, to________
______________________________________________________________________________
_____________________________________________________________________________.
Applicable statements should be mailed to ____________________________________
______________________________________________________________________________
______________________________________________________________________________
This information is provided by ________________________________________,
the assignee named above, or ________________________________________________,
as its agent.
E-3
STATE OF CALIFORNIA )
: ss.:
COUNTY OF _____________ )
On the __th day of _____________, 20___ before me, a notary public in
and for said State, personally appeared _______________________________, known
to me who, being by me duly sworn, did depose and say that he executed the
foregoing instrument.
___________________________________
Notary Public
[Notarial Seal]
▇-▇
▇-▇
EXHIBIT E
[Form of Reverse of Certificates]
INDYMAC MBS, INC.
IndyMac INDX Mortgage Loan Trust 200_-_
Mortgage Pass-Through Certificates, Series 200_-_
This Certificate is one of a duly authorized issue of Certificates
designated as IndyMac MBS, Inc. Mortgage Pass-Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account
for payment hereunder and that the Trustee is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
applicable to each Distribution Date is the last Business Day of the month
next preceding the month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days
prior to the Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such
final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any
time by the Depositor, the Servicer and the Trustee with the consent of the
Holders of Certificates affected by such amendment evidencing the requisite
Percentage Interest, as provided in the Agreement. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
E-1
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office, accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar
duly executed by the holder hereof or such holder's attorney duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
in the Trust Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Servicer, the Seller and the Trustee and any agent of
the Depositor or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and neither
the Depositor, the Trustee, nor any such agent shall be affected by any notice
to the contrary.
On any Distribution Date on which the aggregate Stated Principal Balance
of the Mortgage Loans in the mortgage pool is less than 10% of the Cut-off
Date Pool Principal Balance, the Servicer will have the option to repurchase,
in whole, from the Trust Fund all remaining Mortgage Loans in the mortgage
pool and all property acquired in respect of the Mortgage Loans in the
mortgage pool at a purchase price determined as provided in the Agreement. In
the event that no such optional termination occurs, the obligations and
responsibilities created by the Agreement will terminate upon the later of the
maturity or other liquidation (or any advance with respect thereto) of the
last Mortgage Loan remaining in the Trust Fund or the disposition of all
property in respect thereof and the distribution to Certificateholders of all
amounts required to be distributed pursuant to the Agreement. In no event,
however, will the trust created by the Agreement continue beyond the
expiration of 21 years from the death of the last survivor of the descendants
living at the date of the Agreement of a certain person named in the
Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
E-2
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _____________________________________________________________
______________________________________________________________________________
___________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
______________________________________________________________________________
Dated:
____________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _______________________________________________
_____________________________________________________________________________,
for the account of __________________________________________________________,
account number , or, if mailed by check, to________
______________________________________________________________________________
_____________________________________________________________________________.
Applicable statements should be mailed to ____________________________________
______________________________________________________________________________
______________________________________________________________________________
This information is provided by ________________________________________,
the assignee named above, or ________________________________________________,
as its agent.
E-3
STATE OF CALIFORNIA )
: ss.:
COUNTY OF _____________ )
On the __th day of _____________, 20___ before me, a notary public in
and for said State, personally appeared _______________________________, known
to me who, being by me duly sworn, did depose and say that he executed the
foregoing instrument.
___________________________________
Notary Public
[Notarial Seal]
E-4
EXHIBIT F
[FORM OF CLASS P-[1][2] CERTIFICATE]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED
FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
[NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS
THE TRANSFEREE REPRESENTS TO THE TRUSTEE THAT SUCH TRANSFEREE IS NOT AND IS
NOT INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF AN EMPLOYEE BENEFIT PLAN
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR, IF THE
CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING, DELIVERS
A REPRESENTATION IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED
TO HEREIN, OR DELIVERS TO THE TRUSTEE AN OPINION OF COUNSEL IN ACCORDANCE WITH
THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING
ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR
ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO SECTION 4975 OF
THE CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS
DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.]
F-1
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Certificate Balance
of this Certificate
("Denomination") : $
Initial Certificate Balances
of all Certificates
of this Class : $
CUSIP :
Interest Rate :
Maturity Date :
INDYMAC MBS, INC.
IndyMac INDX Mortgage Loan Trust 200_-__
Mortgage Pass-Through Certificates, Series 200_-__
Class P-[1][2]
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to a Trust Fund
consisting primarily of a pool of conventional mortgage loans (the
"Mortgage Loans") secured by first liens on one- to four-family
residential properties.
Distributors in respect of this Certificate are distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Seller, the Servicer or the Trustee referred to below or any of
their respective affiliates. Neither this Certificate nor the Mortgage Loans
are guaranteed or insured by any governmental agency or instrumentality.
This certifies that ________________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination
of this Certificate by the aggregate of the denominations of all Certificates
of the Class to which this Certificate belongs) in certain monthly
distributions with respect to a Trust Fund consisting primarily of the
Mortgage Loans deposited by IndyMac MBS, Inc. (the "Depositor"). The Trust
Fund was created pursuant to a Pooling and Servicing Agreement dated as of the
Cut-off Date specified above (the "Agreement") among the Depositor, IndyMac
Bank, F.S.B., as seller and servicer (the "Seller" or the "Servicer", as
appropriate), and Deutsche Bank National Trust Company, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement. This Certificate is issued
F-2
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
The Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the Distribution Account may be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
advances made, or certain expenses incurred, with respect to the Mortgage
Loans.
This Certificate does not have a Certificate Balance or Pass-Through Rate and
will be entitled to distributions only to the extent set forth in the
Agreement. In addition, any distribution of the proceeds of any remaining
assets of the Trust will be made only upon presentment and surrender of this
Certificate at the Corporate Trust Office or the office or agency maintained
by the Trustee.
No transfer of a Certificate of this Class shall be made unless such
disposition is exempt from the registration requirements of the Securities Act
of 1933, as amended (the "1933 Act"), and any applicable state securities laws
or is made in accordance with the 1933 Act and such laws. In the event of any
such transfer, the Trustee shall require the transferor to execute a
transferor certificate (in substantially the form attached to the Pooling and
Servicing Agreement) and deliver either (i) an Investment Letter or the Rule
144A Letter, in either case substantially in the form attached to the
Agreement, or (ii) a written Opinion of Counsel to the Trustee that such
transfer may be made pursuant to an exemption, describing the applicable
exemption and the basis therefor, from the 1933 Act or is being made pursuant
to the 1933 Act, which Opinion of Counsel shall be an expense of the
transferor.
[No transfer of a Certificate of this Class shall be made unless the Trustee
shall have received either (i) a representation [letter] from the transferee
of such Certificate, acceptable to and in form and substance satisfactory to
the Trustee, to the effect that such transferee is not an employee benefit
plan or other benefit plan subject to Section 406 of ERISA or Section 4975 of
the Code, or a person acting on behalf of or investing plan assets of any such
plan, which representation letter shall not be an expense of the Trustee or
the Servicer, (ii) if the purchaser is an insurance company and the
Certificate has been the subject of an ERISA-Qualifying Underwriting, a
representation that the purchaser is an insurance company which is purchasing
such Certificates with funds contained in an "insurance company general
account" (as such term is defined in Section V(e) of Prohibited Transaction
Class Exemption 95-60 ("PTCE 95-60")) and that the purchase and holding of
such Certificates are covered under Sections I and III of PTCE 95-60 or (iii)
in the case of any such Certificate presented for registration in the name of
an employee benefit plan subject to ERISA or Section 4975 of the Code (or
comparable provisions of any subsequent enactments), or a trustee of any such
plan or any other person acting on behalf of any such plan, an Opinion of
Counsel satisfactory to the Trustee and the Servicer to the effect that the
purchase or holding of such Certificate will not result in a nonexempt
prohibited transaction under ERISA or Section 4975 of the Code and will not
subject the Trustee or the Servicer to any obligation in addition to those
undertaken in the Agreement, which Opinion of Counsel shall not be an expense
of the Trustee, the Servicer or the Trust Fund. Notwithstanding anything else
to the contrary herein, any purported transfer of a Certificate of this Class
to or on behalf of an employee benefit plan subject to ERISA or to Section
4975 of the Code without the opinion of counsel satisfactory to the Trustee as
described above shall be void and of no effect.]
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement or
be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
F-3
* * *
F-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: _______, ____
DEUTSCHE BANK NATIONAL TRUST
COMPANY,
as Trustee
By ____________________________________
Countersigned:
By ___________________________
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST
COMPANY, as Trustee
F-5
INDYMAC MBS, INC.
IndyMac INDX Mortgage Loan Trust 200_-__
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates designated
as IndyMac MBS, Inc. Mortgage Pass-Through Certificates, of the Series
specified on the face hereof (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that it
will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and reference is
made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made on the
25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
applicable to each Distribution Date is the last Business Day of the month
next preceding the month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days
prior to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such
final distribution.
The Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee with the consent of the Holders of
Certificates affected by such amendment evidencing the requisite Percentage
Interest, as provided in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of
such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of
the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office, accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar
duly executed by the holder hereof or such holder's attorney duly authorized
in writing, and thereupon one or more new Certificates of the same
F-6
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust Fund will be issued to the designated transferee or
transferees.
The Certificates are issuable only as registered Certificates without coupons
in denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Servicer, the Seller and the Trustee and any agent of the
Depositor or the Trustee may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and neither the Depositor,
the Trustee, nor any such agent shall be affected by any notice to the
contrary.
On any Distribution Date on which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 10% of the Cut-off Date Pool Principal
Balance, the Servicer will have the option to repurchase, in whole, from the
Trust Fund all remaining Mortgage Loans and all property acquired in respect
of the Mortgage Loans at a purchase price determined as provided in the
Agreement. In the event that no such optional termination occurs, the related
obligations and responsibilities created by the Agreement will terminate upon
the later of the maturity or other liquidation (or any advance with respect
thereto) of the last Mortgage Loan remaining in the Trust Fund or the
disposition of all property in respect thereof and the distribution to
Certificateholders of all amounts required to be distributed pursuant to the
Agreement. In no event, however, will the trust created by the Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants living at the date of the Agreement of a certain person
named in the Agreement.
Any term used herein that is defined in the Agreement shall have the meaning
assigned in the Agreement, and nothing herein shall be deemed inconsistent
with that meaning.
F-7
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_____________________________________________________________________________.
Dated:
____________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _______________________________________________
_____________________________________________________________________________,
for the account of __________________________________________________________,
account number , or, if mailed by check, to__________
_____________________________________________________________________________.
Applicable statements should be mailed to ___________________________________
_____________________________________________________________________________,
_____________________________________________________________________________.
This information is provided by ________________________________________,
the assignee named above, or ________________________________________________,
as its agent.
F-8
STATE OF ___________________ )
) ss.:
COUNTY OF __________________ )
On the __th day of ______________, 20___ before me, a notary
public in and for said State, personally appeared
________________________________, known to me who, being by me duly sworn, did
depose and say that he executed the foregoing instrument.
___________________________________
Notary Public
[Notarial Seal]
F-9
EXHIBIT G-1
FORM OF INITIAL CERTIFICATION OF TRUSTEE
[date]
[Depositor]
[Servicer]
[Seller]
_____________________
_____________________
Re: Pooling and Servicing Agreement among IndyMac MBS, Inc., as
Depositor, IndyMac Bank, F.S.B., as Seller and Servicer,
and Deutsche Bank National Trust Company, as Trustee,
Mortgage Pass-Through Certificates, Series 200 -
------------------------------------------------------------
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned,
as Trustee, hereby certifies that, as to each Mortgage Loan listed in the
Mortgage Loan Schedule (other than any Mortgage Loan listed in the attached
schedule), it has received:
(i) the original Mortgage Note, endorsed as provided in the following
form: "Pay to the order of ________, without recourse"; and
(ii) an executed assignment of the Mortgage (which may be included in a
blanket assignment or assignments); provided, however, that it has received no
assignment with respect to any Mortgage for which the Mortgaged Property is
located in the Commonwealth of Puerto Rico.
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face and to such Mortgage
Loan.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement. The Trustee makes no representations as to:
(i) the validity, legality, sufficiency, enforceability or genuineness of any
of the documents contained in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the Pooling and Servicing Agreement.
G-1-1
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By:_______________________________________
Name:
Title:
G-1-2
EXHIBIT G-2
FORM OF DELAY DELIVERY CERTIFICATION (INITIAL MORTGAGE LOANS)
[date]
[Depositor]
[Servicer]
[Seller]
_____________________
_____________________
Re: Pooling and Servicing Agreement among IndyMac MBS, Inc., as
Depositor, IndyMac Bank, F.S.B., as Seller and Servicer,
and Deutsche Bank National Trust Company, as Trustee,
Mortgage Pass-Through Certificates, Series 200 -
------------------------------------------------------------
Gentlemen:
Reference is made to the Initial Certification of Trustee relating to
the above-referenced series, with the schedule of exceptions attached thereto
(the "Schedule A"), delivered by the undersigned, as Trustee, on the Closing
Date in accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"). The undersigned
hereby certifies that, as to each Delay Delivery Mortgage Loan listed on
Schedule A attached hereto (other than any Mortgage Loan paid in full or
listed on Schedule B attached hereto) it has received:
(i) the original Mortgage Note, endorsed by the Seller or the
originator of such Mortgage Loan, without recourse in the
following form: "Pay to the order of _______________
without recourse", with all intervening endorsements that
show a complete chain of endorsement from the originator to
the Seller, or, if the original Mortgage Note has been lost
or destroyed and not replaced, an original lost note
affidavit from the Seller, stating that the original
Mortgage Note was lost or destroyed, together with a copy
of the Mortgage Note;
(ii) the original recorded Mortgage;
(iii) an executed assignment of the Mortgage to "Deutsche Bank National
Trust Company, as trustee under the Pooling and Servicing
Agreement dated as of February 1, 2007, without recourse" (each
such assignment, when duly and validly completed, to be in
recordable form and sufficient to effect the assignment of and
transfer to the assignee thereof, under the Mortgage to which such
assignment relates);
(iv) the original recorded assignment or assignments of the Mortgage
together with all interim recorded assignments of such Mortgage;
(v) the original or copies of each assumption, modification, written
assurance or substitution agreement, if any, with evidence of
recording thereon if recordation thereof is permissible under
applicable law; and
G-2-1
(vi) the original or duplicate original lender's title policy and all
riders, if any, thereto or, in the event such original title
policy has not been received from the insurer, any one of an
original title binder, an original preliminary title report or an
original title commitment, or a copy thereof certified by the
title company, with the original policy of title insurance to be
delivered within one year of the Closing Date.
In the event that in connection with any Mortgage Loan for which the
Seller cannot deliver the original recorded Mortgage or all interim recorded
assignments of the Mortgage satisfying the requirements of clause (ii), (iii)
or (iv), as applicable, the Trustee has received, in lieu thereof, a true and
complete copy of such Mortgage and/or such assignment or assignments of the
Mortgage, as applicable, each certified by the Seller, the applicable title
company, escrow agent or attorney, or the originator of such Mortgage Loan, as
the case may be, to be a true and complete copy of the original Mortgage or
assignment of Mortgage submitted for recording.
Based on its review and examination and only as to the foregoing
documents, (i) such documents appear regular on their face and related to such
Mortgage Loan, and (ii) the information set forth in items (i), (iv), (vi) and
(xv) (solely as of origination, not as of the Cut-off Date) of the definition
of the "Mortgage Loan Schedule" in Section 1.01 of the Pooling and Servicing
Agreement accurately reflects information set forth in the Mortgage File.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The Trustee makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File of any
of the Mortgage Loans identified on the [Mortgage Loan Schedule][Loan Number
and Borrower Identification Mortgage Loan Schedule] or (ii) the
collectability, insurability, effectiveness or suitability of any such
Mortgage Loan.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By:_______________________________________
Name:
Title:
G-2-2
EXHIBIT H
FORM OF FINAL CERTIFICATION OF TRUSTEE
[date]
[Depositor]
[Servicer]
[Seller]
_____________________
_____________________
Re: Pooling and Servicing Agreement among IndyMac MBS, Inc., as
Depositor, IndyMac Bank, F.S.B., as Seller and Servicer,
and Deutsche Bank National Trust Company, as Trustee,
Mortgage Pass-Through Certificates, Series 200 -
-------------------------------------------------
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned,
as Trustee, hereby certifies that as to each Mortgage Loan listed in the
Mortgage Loan Schedule (other than any Mortgage Loan paid in full or listed on
the attached Document Exception Report) it has received:
(i) The original Mortgage Note, endorsed in the form provided in Section
2.01(c) of the Pooling and Servicing Agreement, with all intervening
endorsements showing a complete chain of endorsement from the originator to
the Seller.
(ii) The original recorded Mortgage.
(iii) An executed assignment of the Mortgage in the form provided in
Section 2.01(c) of the Pooling and Servicing Agreement; provided, however,
that it has received no assignment with respect to any Mortgage for which the
Mortgaged Property is located in the Commonwealth of Puerto Rico, or, if the
Depositor has certified or the Trustee otherwise knows that the Mortgage has
not been returned from the applicable recording office, a copy of the
assignment of the Mortgage (excluding information to be provided by the
recording office).
(iv) The original or duplicate original recorded assignment or
assignments of the Mortgage showing a complete chain of assignment from the
originator to the Seller.
(v) The original or duplicate original lender's title policy and all
riders thereto or, any one of an original title binder, an original
preliminary title report or an original title commitment, or a copy thereof
certified by the title company.
Based on its review and examination and only as to the foregoing
documents, (a) such documents appear regular on their face and related to such
Mortgage Loan, and (b) the information set forth in items (i), (ii), (iii),
(iv), (vi) and (xv) (solely as of origination, not as of the Cut-off Date) of
the definition of the
H-1
"Mortgage Loan Schedule" in Section 1.01 of the Pooling and Servicing
Agreement accurately reflects information set forth in the Mortgage File.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement. The Trustee makes no representations as to:
(i) the validity, legality, sufficiency, enforceability or genuineness of any
of the documents contained in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan.
Notwithstanding anything herein to the contrary, the Trustee has made no
determination and makes no representations as to whether (i) any endorsement
is sufficient to transfer all right, title and interest of the party so
endorsing, as noteholder or assignee thereof, in and to that Mortgage Note or
(ii) any assignment is in recordable form or sufficient to effect the
assignment of and transfer to the assignee thereof, under the Mortgage to
which the assignment relates.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By:_______________________________________
Name:
Title:
H-2
EXHIBIT I
TRANSFER AFFIDAVIT
IndyMac MBS, Inc.
Mortgage Pass-Through Certificates
Series 200_-_
STATE OF CALIFORNIA )
: ss.:
COUNTY OF _____________ )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is an officer of ___________________, the proposed
Transferee of an Ownership Interest in a Class A-R Certificate (the
"Certificate") issued pursuant to the Pooling and Servicing Agreement, (the
"Agreement"), relating to the above-referenced Series, by and among IndyMac
MBS, Inc., as depositor (the "Depositor"), IndyMac Bank, F.S.B., as seller and
servicer and Deutsche Bank National Trust Company, as Trustee. Capitalized
terms used, but not defined herein or in Exhibit 1 hereto, shall have the
meanings ascribed to such terms in the Agreement. The Transferee has
authorized the undersigned to make this affidavit on behalf of the Transferee.
2. The Transferee is, as of the date hereof, and will be, as of the
date of the Transfer, a Permitted Transferee. The Transferee is acquiring its
Ownership Interest in the Certificate for its own account.
3. The Transferee has been advised of, and understands that (i) a tax
will be imposed on Transfers of the Certificate to Persons that are not
Permitted Transferees; (ii) such tax will be imposed on the transferor, or, if
such Transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability
for the tax if the subsequent Transferee furnished to such Person an affidavit
that such subsequent Transferee is a Permitted Transferee and, at the time of
Transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that a tax
will be imposed on a "pass-through entity" holding the Certificate if at any
time during the taxable year of the pass-through entity a Person that is not a
Permitted Transferee is the record holder of an interest in such entity. The
Transferee understands that such tax will not be imposed for any period with
respect to which the record holder furnishes to the pass-through entity an
affidavit that such record holder is a Permitted Transferee and the
pass-through entity does not have actual knowledge that such affidavit is
false. (For this purpose, a "pass-through entity" includes a regulated
investment company, a real estate investment trust or common trust fund, a
partnership, trust or estate, and certain cooperatives and, except as may be
provided in Treasury Regulations, persons holding interests in pass-through
entities as a nominee for another Person.)
5. The Transferee has reviewed the provisions of Section 5.02(c) of
the Agreement (attached hereto as Exhibit 2 and incorporated herein by
reference) and understands the legal consequences of the acquisition of an
Ownership Interest in the Certificate including, without limitation, the
restrictions on subsequent Transfers and the provisions regarding voiding the
Transfer and mandatory sales. The Transferee expressly agrees to be bound by
and to abide by the provisions of Section 5.02(c)
I-1
of the Agreement and the restrictions noted on the face of the Certificate.
The Transferee understands and agrees that any breach of any of the
representations included herein shall render the Transfer to the Transferee
contemplated hereby null and void.
6. The Transferee agrees to require a Transfer Affidavit from any
Person to whom the Transferee attempts to Transfer its Ownership Interest in
the Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee will not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Trustee a certificate substantially in the
form set forth as Exhibit J to the Agreement (a "Transferor Certificate") to
the effect that such Transferee has no actual knowledge that the Person to
which the Transfer is to be made is not a Permitted Transferee.
7. The Transferee does not have the intention to impede the
assessment or collection of any tax legally required to be paid with respect
to the Certificate.
8. The Transferee's taxpayer identification number is ___________.
9. The Transferee is a U.S. Person as defined in Code Section
7701(a)(30).
10. The Transferee is aware that the Certificate may be a "noneconomic
residual interest" within the meaning of proposed Treasury regulations
promulgated pursuant to the Code and that the transferor of a noneconomic
residual interest will remain liable for any taxes due with respect to the
income on such residual interest, unless no significant purpose of the
transfer was to impede the assessment or collection of tax.
11. The Transferee is not a foreign permanent establishment or fixed
base (within the meaning of an applicable income tax treaty) of a U.S.
taxpayer.
12. The Transferee will not transfer the Certificates, directly or
indirectly, to a foreign permanent establishment or fixed base (within the
meaning of an applicable income tax treaty) of the Transferee or another U.S.
taxpayer.
13. The Transferee will not cause income from the Certificates to be
attributable to a foreign permanent establishment or fixed base (within the
meaning of an applicable income tax treaty) of the Transferee or another U.S.
taxpayer.
14. Either:
(a) (i) At the time of the transfer, and at the close of each of
the Transferee's two fiscal years preceding the Transferee's fiscal year
of transfer, the Transferee's gross assets for financial reporting
purposes exceed $100 million and its net assets for financial reporting
purposes exceed $10 million. For purposes of the preceding sentence, the
gross assets and net assets of a Transferee do not include any
obligation of any Related Person, as defined below, or any other asset
if a principal purpose for holding or acquiring the other asset is to
permit the Transferee to satisfy the conditions of this paragraph 15(a);
(ii) The Transferee is an Eligible Corporation, as defined below, and
hereby agrees that any subsequent transfer of the interest will be to
another Eligible Corporation in a transaction that satisfies this
Transfer Affidavit, including this paragraph 15(a); and (iii) The
Transferee has not given the Transferor any reason to know that the
Transferee will not honor the restrictions on subsequent transfers of
the residual interest or that the Transferee cannot or will not pay any
taxes associated with the residual interest; or
I-2
(b)(i) The Transferee is a United States Person; (ii) The present
value of the anticipated tax liabilities associated with holding the
residual interest does not exceed the sum of: (A) The present value of
any consideration given to the Transferee to acquire the interest; (B)
The present value of the expected future distributions on the interest;
and (C) The present value of the anticipated tax savings associated with
holding the interest as any REMIC generates losses; and (iii) For
purposes of calculating the aforementioned present values: (A) The
transferee has assumed that it pays tax at a rate equal to the highest
rate of tax specified in Code Section 11(b)(1) (unless the Transferee
has been subject to the alternative minimum tax under Code Section 55 in
the preceding two years and will compute its taxable income in the
current taxable year using the alternative minimum tax rate, in which
case the Transferee can assume that it pays tax at the rate specified in
Code Section 55(b)(1)(B) provided the Transferee states in this Transfer
Affidavit that it is using such alternate rate and that has been subject
to the alternative minimum tax under Code Section 55 in the preceding
two years and will compute its taxable income in the current taxable
year using the alternative minimum tax rate):and (B) The Transferee uses
a discount rate equal to the Federal short-term rate prescribed by
section 1274(d) for the month of the transfer and the compounding period
used by the Transferee.
The term "Eligible Corporation" means any domestic C corporation (as
defined in section 1361(a)(2) of the Code) other than a corporation which is
exempt from, or is not subject to, tax under section 11 of the Code, an entity
described in section 851(a) or 856(a) of the Code, a REMIC; or an organization
to which part I, subchapter T, chapter 1, subtitle A of the Code applies. The
Term "Related Person" means any person that bears a relationship to the
Transferee enumerated in section 267(b) or 707(b)(1) of the Code, using "20
percent" instead of "50 percent" where it appears under the provisions; or is
under common control (within the meaning of section 52(a) and (b) of the Code)
with the Transferee.
15. Either (i) the Transferee is not an employee benefit plan that is
subject to ERISA or a plan that is subject to Section 4975 of the Code, and
the Transferee is not acting on behalf of or with plan assets of such a plan;
or (ii) the Transferee is an insurance company that is investing funds
contained in an "insurance company general account" (as such term is defined
in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")
and the purchase and holding of the Class A-R Certificate satisfy the
requirements for exemptive relief under Sections I and III of PTCE 95-60.
* * *
I-3
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by
its duly authorized officer and its corporate seal to be hereunto affixed,
duly attested, this ____ day of _________________, 20_.
_______________________________________
Print Name of Transferee
By:____________________________________
Name:
Title:
[Corporate Seal]
ATTEST:
[Assistant] Secretary
Personally appeared before me the above-named ____________, known or
proved to me to be the same person who executed the foregoing instrument and
to be the ____________________ of the Transferee, and acknowledged that he
executed the same as his free act and deed and the free act and deed of the
Transferee.
Subscribed and sworn before me this _____ day of ________, 20_.
_______________________________
NOTARY PUBLIC
My Commission expires the ____ day
of _______________, 20_.
I-4
EXHIBIT 1
to EXHIBIT I
Certain Definitions
-------------------
"Ownership Interest": As to any Certificate, any ownership interest in
such Certificate, including any interest in such Certificate as the Holder
thereof and any other interest therein, whether direct or indirect, legal or
beneficial.
"Permitted Transferee": Any Person other than (i) the United States, any
State or political subdivision thereof, or any agency or instrumentality of
any of the foregoing, (ii) a foreign government, International Organization or
any agency or instrumentality of either of the foregoing, (iii) an
organization (except certain farmers' cooperatives described in Code Section
521) that is exempt from tax imposed by Chapter 1 of the Code (including the
tax imposed by Code Section 511 on unrelated business taxable income) on any
excess inclusions (as defined in Code Section 860E(c)(1)) with respect to any
Restricted Certificate, (iv) a rural electric and telephone cooperatives
described in Code Section 1381(a)(2)(c), (v) an "electing large partnership"
as defined in Code Section 775 of (vi) a Person that is not a U.S. Person, and
(vii) any other Person so designated by the Depositor based upon an Opinion of
Counsel that the Transfer of an Ownership Interest in a Residual Certificate
to such Person may cause any REMIC to fail to qualify as a REMIC at any time
that certain Certificates are Outstanding. The terms "United States," "State"
and "International Organization" shall have the meanings set forth in Code
Section 7701 or successor provisions. A corporation will not be treated as an
instrumentality of the United States or of any State or political subdivision
thereof if all of its activities are subject to tax, and, with the exception
of the FHLMC, a majority of its board of directors is not selected by such
governmental unit.
"Person": Any individual, corporation, partnership, joint venture,
limited liability company, bank, joint stock company, trust (including any
beneficiary thereof), unincorporated organization or government or any agency
or political subdivision thereof.
"Transfer": Any direct or indirect transfer or sale of any Ownership
Interest in a Certificate, including the acquisition of a Certificate by the
Depositor.
"Transferee": Any Person who is acquiring by Transfer any
Ownership Interest in a Certificate.
I-5
EXHIBIT 2
to EXHIBIT I
Section 5.02(c) of the Agreement
--
(c) Each Person who has or who acquires any Ownership Interest in
a Residual Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound by the following
provisions, and the rights of each Person acquiring any Ownership Interest in
a Residual Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest
in a Residual Certificate shall be a Permitted Transferee and
shall promptly notify the Trustee of any change or impending
change in its status as a Permitted Transferee.
(ii) No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and the
Trustee shall not register the Transfer of any Residual
Certificate unless, in addition to the certificates required to be
delivered to the Trustee under subparagraph (b) above, the Trustee
shall have been furnished with an affidavit (a "Transfer
Affidavit") of the initial owner or the proposed transferee in the
form attached hereto as Exhibit I.
(iii) Each Person holding or acquiring any Ownership
Interest in a Residual Certificate shall agree (A) to obtain a
Transfer Affidavit from any other Person to whom such Person
attempts to Transfer its Ownership Interest in a Residual
Certificate, (B) to obtain a Transfer Affidavit from any Person
for whom such Person is acting as nominee, trustee or agent in
connection with any Transfer of a Residual Certificate and (C) not
to Transfer its Ownership Interest in a Residual Certificate or to
cause the Transfer of an Ownership Interest in a Residual
Certificate to any other Person if it has actual knowledge that
such Person is not a Permitted Transferee.
(iv) Any attempted or purported Transfer of any Ownership
Interest in a Residual Certificate in violation of the provisions
of this Section 5.02(c) shall be absolutely null and void and
shall vest no rights in the purported Transferee. If any purported
transferee shall become a Holder of a Residual Certificate in
violation of the provisions of this Section 5.02(c), then the last
preceding Permitted Transferee shall be restored to all rights as
Holder thereof retroactive to the date of registration of Transfer
of such Residual Certificate. The Trustee shall be under no
liability to any Person for any registration of Transfer of a
Residual Certificate that is in fact not permitted by Section
5.02(b) and this Section 5.02(c) or for making any payments due on
such Certificate to the Holder thereof or taking any other action
with respect to such Holder under the provisions of this Agreement
so long as the Transfer was registered after receipt of the
Transfer Affidavit, Transferor Certificate and either the Rule
144A Letter or the Investment Letter. The Trustee shall be
entitled but not obligated to recover from any Holder of a
Residual Certificate that was in fact not a Permitted Transferee
at the time it became a Holder or, at such subsequent time as it
became other than a Permitted Transferee, all payments made on
such Residual Certificate at and after either such time. Any such
payments so recovered by the Trustee shall be paid and delivered
by the Trustee to the last preceding Permitted Transferee of such
Certificate.
I-6
(v) The Depositor shall use its best efforts to make
available, upon receipt of written request from the Trustee, all
information necessary to compute any tax imposed under Section
860E(e) of the Code as a result of a Transfer of an Ownership
Interest in a Residual Certificate to any Holder who is not a
Permitted Transferee.
I-7
EXHIBIT J
FORM OF TRANSFEROR CERTIFICATE
__________, 200__
IndyMac MBS, Inc.
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▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Secondary Marketing, Transaction Management
DB Services Tennessee
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▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Transfer Unit, [Series 200 -]
Re: IndyMac MBS, Inc.
Mortgage Pass-Through Certificates, Series 200 -, Class
-------------------------------------------------------
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we
certify that (a) we understand that the Certificates have not been registered
under the Securities Act of 1933, as amended (the "Act"), and are being
disposed by us in a transaction that is exempt from the registration
requirements of the Act, (b) we have not offered or sold any Certificates to,
or solicited offers to buy any Certificates from, any person, or otherwise
approached or negotiated with any person with respect thereto, in a manner
that would be deemed, or taken any other action which would result in, a
violation of Section 5 of the Act and (c) to the extent we are disposing of a
Class A-R Certificate, we have no knowledge the Transferee is not a Permitted
Transferee.
Very truly yours,
______________________________
Print Name of Transferor
By:___________________________
Authorized Officer
J-1
EXHIBIT K
FORM OF INVESTMENT LETTER (NON-RULE 144A)
__________, 200__
IndyMac MBS, Inc.
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▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Secondary Marketing, Transaction Management
DB Services Tennessee
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▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Transfer Unit, [Series 200 -]
Re: IndyMac MBS, Inc.
Mortgage Pass-Through Certificates, Series 200 -, ClassRU
Ladies and Gentlemen:
In connection with our acquisition of the above-referenced
Certificates we certify that (a) we understand that the Certificates are not
being registered under the Securities Act of 1933, as amended (the "Act"), or
any state securities laws and are being transferred to us in a transaction
that is exempt from the registration requirements of the Act and any such
laws, (b) we are an "accredited investor," as defined in Regulation D under
the Act, and have such knowledge and experience in financial and business
matters that we are capable of evaluating the merits and risks of investments
in the Certificates, (c) we have had the opportunity to ask questions of and
receive answers from the Depositor concerning the purchase of the Certificates
and all matters relating thereto or any additional information deemed
necessary to our decision to purchase the Certificates, (d) either (i) we are
not an employee benefit plan that is subject to the Employee Retirement Income
Security Act of 1974, as amended, or a plan or arrangement that is subject to
Section 4975 of the Internal Revenue Code of 1986, as amended, nor are we
acting on behalf of any such plan or arrangement or using the assets of any
such plan or arrangement to effect such acquisition or (ii) [in the case of a
Certificate that has been the subject of an ERISA-Qualifying Underwriting] we
are an insurance company which is purchasing such Certificates with funds
contained in an "insurance company general account" (as such term is defined
in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE
95-60")) and the purchase and holding of such Certificates are covered under
Sections I and III of PTCE 95-60, (e) we are acquiring the Certificates for
investment for our own account and not with a view to any distribution of such
Certificates (but without prejudice to our right at all times to sell or
otherwise dispose of the Certificates in accordance with clause (g) below),
(f) we have not offered or sold any Certificates to, or solicited offers to
buy any Certificates from, any person, or otherwise approached or negotiated
with any person with respect thereto, or taken any other action which would
result in a violation of Section 5 of the Act, (g) we will not sell, transfer
or otherwise dispose of any Certificates unless (1) such sale, transfer or
other disposition is made pursuant to an effective registration statement
under the Act or is exempt from such registration requirements, and if
requested, we will at our expense provide an opinion of counsel satisfactory
to the addressees of this Certificate that such sale, transfer or other
disposition may be made pursuant to an exemption from the Act, (2) the
purchaser or transferee of such Certificate has executed and delivered to you
a certificate to substantially the same effect as this certificate, and (3)
the purchaser or transferee has otherwise complied
K-1
with any conditions for transfer set forth in the Pooling and Servicing
Agreement and (h) if we are a corporation purchasing the Certificates in the
State of California, we have a net worth of at least $14,000,000 according to
our most recent audited financial statements.
Very truly yours,
______________________________
Print Name of Transferee
By:___________________________
Authorized Officer
K-2
EXHIBIT L
FORM OF RULE 144A LETTER
____________, 200__
IndyMac MBS, Inc.
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▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Secondary Marketing, Transaction Management
DB Services Tennessee
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Transfer Unit, [Series 200 -]
Re: IndyMac MBS, Inc.
Mortgage Pass-Through Certificates, Series 200 -, Class
-------------------------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above-referenced
Certificates we certify that (a) we understand that the Certificates are not
being registered under the Securities Act of 1933, as amended (the "Act"), or
any state securities laws and are being transferred to us in a transaction
that is exempt from the registration requirements of the Act and any such
laws, (b) we have such knowledge and experience in financial and business
matters that we are capable of evaluating the merits and risks of investments
in the Certificates, (c) we have had the opportunity to ask questions of and
receive answers from the Depositor concerning the purchase of the Certificates
and all matters relating thereto or any additional information deemed
necessary to our decision to purchase the Certificates, (d) either (i) we are
not an employee benefit plan that is subject to the Employee Retirement Income
Security Act of 1974, as amended, or a plan or arrangement that is subject to
Section 4975 of the Internal Revenue Code of 1986, as amended, nor are we
acting on behalf of any such plan or arrangement or using the assets of any
such plan or arrangement to effect such acquisition, or (ii) [in the case of a
Certificate that has been the subject of an ERISA-Qualifying Underwriting] we
are purchasing the Certificates with funds contained in an "insurance company
general account" (as defined in Section V(e) of Prohibited Transaction Class
Exemption 95-60 ("PTCE 95-60")) and our purchase and holding of the
Certificates satisfy the requirements for exemptive relief under Sections I
and III of PTCE 95-60, (e) we have not, nor has anyone acting on our behalf
offered, transferred, pledged, sold or otherwise disposed of the Certificates,
any interest in the Certificates or any other similar security to, or
solicited any offer to buy or accept a transfer, pledge or other disposition
of the Certificates, any interest in the Certificates or any other similar
security from, or otherwise approached or negotiated with respect to the
Certificates, any interest in the Certificates or any other similar security
with, any person in any manner, or made any general solicitation by means of
general advertising or in any other manner, or taken any other action, that
would constitute a distribution of the Certificates under the Act or that
would render the disposition of the Certificates a violation of Section 5 of
the Act or require registration pursuant thereto, nor will act, nor has
authorized or will authorize any person to act, in such manner with respect to
the Certificates, (f) we are a "qualified institutional buyer" as that term is
defined in Rule 144A under the Act ("Rule 144A") and have completed either of
the forms of certification to that effect attached hereto as Annex 1 or Annex
2, (g) we are aware that the sale to us is being made in reliance on Rule
144A, (h) we are acquiring the Certificates
L-1
for our own account or for resale pursuant to Rule 144A and further,
understand that such Certificates may be resold, pledged or transferred only
(A) to a person reasonably believed to be a qualified institutional buyer that
purchases for its own account or for the account of a qualified institutional
buyer to whom notice is given that the resale, pledge or transfer is being
made in reliance on Rule 144A, or (B) pursuant to another exemption from
registration under the Act and (i) if we are a corporation purchasing the
Certificates in the State of California, we have a net worth of at least
$14,000,000 according to our most recent audited financial statements.
Very truly yours,
________________________
Print Name of Transferee
By:_______________________
Authorized Officer
L-2
ANNEX 1 TO EXHIBIT L
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A") because (i) the Buyer owned
and/or invested on a discretionary basis $ (1) in securities (except for the
excluded securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance with Rule 144A
and (ii) the Buyer satisfies the criteria in the category marked below.
___ Corporation, etc. The Buyer is a corporation (other than
a bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or
charitable organization described in Section 501(c)(3) of the
Internal Revenue Code of 1986, as amended.
___ Bank. The Buyer (a) is a national bank or banking
institution organized under the laws of any State, territory or
the District of Columbia, the business of which is substantially
confined to banking and is supervised by the State or territorial
banking commission or similar official or is a foreign bank or
equivalent institution, and (b) has an audited net worth of at
least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto.
___ Savings and Loan. The Buyer (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised
and examined by a State or Federal authority having supervision
over any such institutions or is a foreign savings and loan
association or equivalent institution and (b) has an audited net
worth of at least $25,000,000 as demonstrated in its latest annual
financial statements, a copy of which is attached hereto.
___ Broker-dealer. The Buyer is a dealer registered pursuant
to Section 15 of the Securities Exchange Act of 1934.
___ Insurance Company. The Buyer is an insurance company
whose primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the
__________________
(1) Buyer must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Buyer is a dealer, and, in that case,
Buyer must own and/or invest on a discretionary basis at least
$10,000,000 in securities.
L-3
insurance commissioner or a similar official or agency of a
State, territory or the District of Columbia.
___ State or Local Plan. The Buyer is a plan established and
maintained by a State, its political subdivisions, or any agency
or instrumentality of the State or its political subdivisions, for
the benefit of its employees.
___ ERISA Plan. The Buyer is an employee benefit plan within
the meaning of Title I of the Employee Retirement Income Security
Act of 1974.
___ Investment Advisor. The Buyer is an investment advisor
registered under the Investment Advisors Act of 1940.
___ Small Business Investment Company. Buyer is a small
business investment company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small Business
Investment Act of 1958.
___ Business Development Company. Buyer is a business
development company as defined in Section 202(a)(22) of the
Investment Advisors Act of 1940.
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer
is a dealer, (iii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iv) bank deposit notes and certificates of deposit,
(v) loan participations, (vi) repurchase agreements, (vii) securities owned
but subject to a repurchase agreement and (viii) currency, interest rate and
commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Buyer, the Buyer used
the cost of such securities to the Buyer and did not include any of the
securities referred to in the preceding paragraph, except (i) where the Buyer
reports its securities holdings in its financial statements on the basis of
their market value, and (ii) no current information with respect to the cost
of those securities has been published. If clause (ii) in the preceding
sentence applies, the securities may be valued at market. Further, in
determining such aggregate amount, the Buyer may have included securities
owned by subsidiaries of the Buyer, but only if such subsidiaries are
consolidated with the Buyer in its financial statements prepared in accordance
with generally accepted accounting principles and if the investments of such
subsidiaries are managed under the Buyer's direction. However, such securities
were not included if the Buyer is a majority-owned, consolidated subsidiary of
another enterprise and the Buyer is not itself a reporting company under the
Securities Exchange Act of 1934, as amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the
Certificates are relying and will continue to rely on the statements made
herein because one or more sales to the Buyer may be in reliance on Rule 144A.
6. Until the date of purchase of the Rule 144A Securities, the
Buyer will notify each of the parties to which this certification is made of
any changes in the information and conclusions herein. Until such notice is
given, the Buyer's purchase of the Certificates will constitute a
reaffirmation of this certification as of the date of such purchase. In
addition, if the Buyer is a bank or savings and loan is provided above, the
Buyer agrees that it will furnish to such parties updated annual financial
statements promptly after they become available.
L-4
____________________________________
Print Name of Buyer
By:_________________________________
Name:
Title:
____________________________________
Date:
L-5
ANNEX 2 TO EXHIBIT L
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Transferees That are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A") because Buyer is part of a
Family of Investment Companies (as defined below), is such an officer of the
Adviser.
2. In connection with purchases by Buyer, the Buyer is a
"qualified institutional buyer" as defined in SEC Rule 144A because (i) the
Buyer is an investment company registered under the Investment Company Act of
1940, as amended and (ii) as marked below, the Buyer alone, or the Buyer's
Family of Investment Companies, owned at least $100,000,000 in securities
(other than the excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year. For purposes of determining the amount of
securities owned by the Buyer or the Buyer's Family of Investment Companies,
the cost of such securities was used, except (i) where the Buyer or the
Buyer's Family of Investment Companies reports its securities holdings in its
financial statements on the basis of their market value, and (ii) no current
information with respect to the cost of those securities has been published.
If clause (ii) in the preceding sentence applies, the securities may be valued
at market.
___ The Buyer owned $ in securities (other than the
excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
___ The Buyer is part of a Family of Investment Companies
which owned in the aggregate $ in securities (other than the
excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers that are affiliated (by virtue
of being majority owned subsidiaries of the same parent or because one
investment adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) securities issued or guaranteed
by the U.S. or any instrumentality thereof, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v) repurchase agreements,
(vi) securities owned but subject to a repurchase agreement and (vii)
currency, interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates are relying and will continue to rely on the statements
made herein because one or more sales to the Buyer will be in reliance on Rule
144A. In addition, the Buyer will only purchase for the Buyer's own account.
L-6
6. Until the date of purchase of the Certificates, the undersigned
will notify the parties listed in the Rule 144A Transferee Certificate to
which this certification relates of any changes in the information and
conclusions herein. Until such notice is given, the Buyer's purchase of the
Certificates will constitute a reaffirmation of this certification by the
undersigned as of the date of such purchase.
____________________________________
Print Name of Buyer
By:_________________________________
Name:
Title:
____________________________________
Date:
L-7
EXHIBIT M
REQUEST FOR RELEASE
(for Trustee)
IndyMac MBS, Inc.
Mortgage Pass-Through Certificates
Series 200_-_
Loan Information
----------------
Name of
Mortgagor:
Servicer
Loan No.: ____________________________
Trustee
-------
Name: ____________________________
Address: ____________________________
____________________________
Trustee
Mortgage File No.:
The undersigned Servicer hereby acknowledges that it has received from
Deutsche Bank National Trust Company, as Trustee for the Holders of Mortgage
Pass-Through Certificates, of the above-referenced Series, the documents
referred to below (the "Documents"). All capitalized terms not otherwise
defined in this Request for Release shall have the meanings given them in the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement")
relating to the above-referenced Series among the Trustee, IndyMac Bank,
F.S.B., as Seller and Servicer and IndyMac MBS, Inc., as Depositor.
( ) Mortgage Note dated ___________, 20_, in the original principal sum of
$_________, made by _________________. payable to, or endorsed to the
order of, the Trustee.
( ) Mortgage recorded on _________________ as instrument no.
_____________________ in the County Recorder's Office of the County of
__________________, State of _______________ in book/reel/docket
________________ of official records at page/image _______________.
( ) Deed of Trust recorded on __________________ as instrument no.
_________________ in the County Recorder's Office of the County of
_______________, State of _______________ in book/reel/docket
_______________ of official records at page/image _______________.
( ) Assignment of Mortgage or Deed of Trust to the Trustee, recorded on
________________- as instrument no. ____________ in the County
Recorder's Office of the County of _________, State of ________________
in book/reel/docket _______________ of official records at page/image
______________.
M-1
( ) Other documents, including any amendments, assignments or other
assumptions of the Mortgage Note or Mortgage.
( )
( )
( )
( )
The undersigned Servicer hereby acknowledges and agrees as follows:
(1) The Servicer shall hold and retain possession of the
Documents in trust for the benefit of the Trustee, solely for the
purposes provided in the Agreement.
(2) The Servicer shall not cause or knowingly permit the
Documents to become subject to, or encumbered by, any claim,
liens, security interest, charges, writs of attachment or other
impositions nor shall the Servicer assert or seek to assert any
claims or rights of setoff to or against the Documents or any
proceeds thereof.
(3) The Servicer shall return each and every Document
previously requested from the Mortgage File to the Trustee when
the need therefor no longer exists, unless the Mortgage Loan
relating to the Documents has been liquidated and the proceeds
thereof have been remitted to the Certificate Account and except
as expressly provided in the Agreement.
(4) The Documents and any proceeds thereof, including any
proceeds of proceeds, coming into the possession or control of the
Servicer shall at all times be earmarked for the account of the
Trustee, and the Servicer shall keep the Documents and any
proceeds separate and distinct from all other property in the
Servicer's possession, custody or control.
INDYMAC BANK, F.S.B.
By: _________________
Name:
Title:
Date: , 20
M-2
EXHIBIT N
REQUEST FOR RELEASE OF DOCUMENTS
To: Deutsche Bank National Trust Company
Attn: Mortgage Custody Services
Re: The Pooling and Servicing Agreement dated February 1, 2007 among
IndyMac Bank, F.S.B. as Servicer, Inc, IndyMac MBS, Inc. and Deutsche
Bank National Trust Company, as Trustee
------------------------------------------------------------
Ladies and Gentlemen:
In connection with the administration of the Mortgage Loans held by you
as Trustee for IndyMac MBS, Inc., we request the release of the Mortgage Loan
File for the Mortgage Loan(s) described below, for the reason indicated.
FT Account #: Pool #:
Mortgagor's Name, Address and Zip Code:
--------------------------------------
Mortgage Loan Number:
---------------------
Reason for Requesting Documents (check one)
-------------------------------
_______1. Mortgage Loan paid in full (IndyMac hereby certifies that all
amounts have been received.)
_______2. Mortgage Loan Liquidated (IndyMac hereby certifies that all
proceeds of foreclosure, insurance, or other liquidation have
been finally received.)
_______3. Mortgage Loan in Foreclosure.
_______4. Other (explain): ____________________________________
If item 1 or 2 above is checked, and if all or part of the Mortgage File
was previously released to us, please release to us our previous receipt on
file with you, as well as an additional documents in your possession relating
to the above-specified Mortgage Loan. If item 3 or 4 is checked, upon return
of all of the above documents to you as Trustee, please acknowledge your
receipt by signing in the space indicated below, and returning this form.
N-1
INDYMAC BANK, F.S.B.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
By:________________________
Name:______________________
Title:____________________
Date:______________________
TRUSTEE CONSENT TO RELEASE AND
ACKNOWLEDGEMENT OF RECEIPT
By:________________________
Name:______________________
Title:____________________
Date:______________________
Q-2
EXHIBIT O-1
-----------
FORM OF CERTIFICATION TO BE PROVIDED BY THE DEPOSITOR WITH FORM 10-K
Re: IndyMac MBS, Inc.
IndyMac INDX Mortgage Loan Trust 200 - , Series 200 -
---------------------------------------------------------
I, [identify the certifying individual], certify that:
1. I have reviewed this report on Form 10-K and all reports on
Form 10-D required to be filed in respect of the period covered by this report
on Form 10-K of IndyMac INDX Mortgage Loan Trust 200 - , Series 200 - (the
"Exchange Act periodic reports");
2. Based on my knowledge, the Exchange Act periodic reports,
taken as a whole, does not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements made, in light
of the circumstances under which such statements were made, not misleading
with respect to the period covered by this report;
3. Based on my knowledge, the distribution, servicing and other
information required to be provided under Form 10-D for the period covered by
this report is included in the Exchange Act periodic reports;
4. Based on my knowledge and the servicer compliance statement
required in this report under Item 1123 of Regulation AB and except as
disclosed in the Exchange Act periodic reports, the servicer has fulfilled its
obligations under the servicing agreement in all material respects; and
5. All of the reports on assessment of compliance with
servicing criteria for asset-backed securities and their related attestation
reports on assessment of compliance with servicing criteria for asset-backed
securities required to be included in this report in accordance with Item 1122
of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 have been included
as an exhibit to this report, except as otherwise disclosed in this report.
Any material instances of noncompliance described in such reports have been
disclosed in this report on Form 10-K.
In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties: Deutsche
Bank National Trust Company.
Date: __________________
_____________________________________
[Signature]
[Title]
O-1-1
EXHIBIT O-2
-----------
TRUSTEE'S OFFICER'S CERTIFICATE
I, ____________________, a duly elected and acting officer of
Deutsche Bank National Trust Company (the "Trustee") hereby certify as
follows:
Reference is hereby made to the Pooling and Servicing Agreement
dated as of February 1, 2007 (the "Pooling Agreement") by and among IndyMac
Bank, F.S.B., as seller and servicer, IndyMac MBS, Inc., as depositor and
Deutsche Bank National Trust Company, as trustee, pursuant to which was
created the IndyMac INDX Mortgage Loan Trust 200 - , Series 200 - (the
"Trust"). Capitalized terms used herein but not defined shall have the
meanings assigned to them in the Pooling Agreement.
1. I am an authorized officer of the Trustee and I have
reviewed this annual report on Form 10-K and all reports on Form 10-D required
to be filed in respect of the period covered by this report on Form 10-K of
IndyMac INDX Mortgage Loan Trust 200 - , Series 200 - (the "Exchange Act
Periodic Reports");
2. For purposes of this certificate, "Relevant Information"
means the information in the report on assessment of the Trustee's compliance
with the servicing criteria set forth in Item 1122(d) of Reg AB (the
"Servicing Assessment"), the registered public accounting firm's attestation
provided in accordance with Rules 13a-18 and 15d-18 under the Exchange Act and
Section 1122(b) of Reg AB ( the "Attestation Report") applicable to the
Trustee and the Monthly Statements (excluding information provided, or based
on information provided, by the Servicer or any servicer) and those items in
Exhibit S attached to the Pooling and Servicing Agreement which indicate the
4.03 statement or the Trustee as the responsible party during the Relevant
Year. Based on my knowledge, the Relevant Information, taken as a whole, does
not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading with
respect to the period covered by this annual report; and
3. Based on my knowledge, the distribution information required
to be provided by the Trustee under the Pooling and Servicing Agreement is
included in the Monthly Statements.
4. I am responsible for reviewing the activities performed by
the Trustee, as servicer under the Pooling Agreement during the Relevant Year.
Based upon the review required by the Pooling Agreement and except as
disclosed in the Servicing Assessment or Attestation Report, to the best of my
knowledge, the Trustee has fulfilled its obligations under the Pooling
Agreement throughout the Relevant Year. Relevant Year shall mean 200__.
DATED as of _____________, 200____.
By: _____________________________
Name:
Title:
O-2-1
EXHIBIT P
[RESERVED]
P-1
EXHIBIT Q
FORM 10-D, FORM 8-K AND FORM 10-K
REPORTING RESPONSIBILITY
As to each item described below, the entity indicated as the Responsible Party
shall be primarily responsible for reporting the information to the Trustee
pursuant to Section 3.24(e). If the Trustee is indicated below as to any item,
then the Trustee is primarily responsible for obtaining that information.
Under Item 1 of Form 10-D: a) items marked "4.03 statement" are required to be
included in the periodic Distribution Date statement under Section 4.03,
provided by the Trustee based on information received from the Servicer; and
b) items marked "Form 10-D report" are required to be in the Form 10-D report
but not the 4.03 statement, provided by the party indicated. Information under
all other Items of Form 10-D is to be included in the Form 10-D report.
Form Item Description Responsible Party
---- ---- ----------- -----------------
-------------------------------------------------------------------------------
10-D Must be filed within 15 days of the distribution date for the
mortgage-backed securities.
-------------------------------------------------------------------------------
1 Distribution and Pool Performance
Information
-------------------------------------------------------------------------------
Item 1121(a) - Distribution and Pool
Performance Information
-------------------------------------------------------------------------------
(1) Any applicable record dates, 4.03 statement
accrual dates, determination dates for
calculating distributions and actual
distribution dates for the distribution
period.
-------------------------------------------------------------------------------
(2) Cash flows received and the sources 4.03 statement
thereof for distributions, fees and
expenses.
-------------------------------------------------------------------------------
(3) Calculated amounts and distribution 4.03 statement
of the flow of funds for the period
itemized by type and priority of
payment, including:
-------------------------------------------------------------------------------
(i) Fees or expenses accrued and 4.03 statement
paid, with an identification of the
general purpose of such fees and the
party receiving such fees or expenses.
-------------------------------------------------------------------------------
(ii) Payments accrued or paid 4.03 statement
with respect to enhancement or other
support identified in Item 1114 of
Regulation AB (such as insurance
premiums or other enhancement
maintenance fees), with an
identification of the general purpose
of such payments and the party
receiving such payments.
-------------------------------------------------------------------------------
(iii) Principal, interest and 4.03 statement
other distributions accrued and paid on
the mortgage-backed securities by type
and by class or series and any
principal or interest shortfalls or
carryovers.
-------------------------------------------------------------------------------
(iv) The amount of excess cash 4.03 statement
flow or excess spread and the
disposition of excess cash flow.
-------------------------------------------------------------------------------
(4) Beginning and ending principal 4.03 statement
balances of the mortgage-backed
securities.
-------------------------------------------------------------------------------
(5) Interest rates applicable to the 4.03 statement
pool assets and the mortgage-backed
securities, as applicable.
-------------------------------------------------------------------------------
(6) Beginning and ending balances of 4.03 statement
transaction accounts, such as reserve
accounts, and material
-------------------------------------------------------------------------------
Q-1
-------------------------------------------------------------------------------
account activity during the period.
-------------------------------------------------------------------------------
(7) Any amounts drawn on any credit 4.03 statement
enhancement or other support identified
in Item 1114 of Regulation AB, as
applicable, and the amount of coverage
remaining under any such enhancement,
if known and applicable.
-------------------------------------------------------------------------------
(8) Number and amount of pool assets at 4.03 statement
the beginning and ending of each
period, and updated pool composition Updated pool
information, such as weighted average composition
coupon, weighted average life, weighted information
average remaining term, pool factors fields to be as
and prepayment amounts. specified by
Depositor from
time to time
-------------------------------------------------------------------------------
(9) Delinquency and loss information 4.03 statement.
for the period.
In addition, describe any material Form 10-D
changes to the information specified in report: Servicer
Item 1100(b)(5) of Regulation AB
regarding the pool assets.
-------------------------------------------------------------------------------
(10) Information on the amount, terms 4.03 statement
and general purpose of any advances
made or reimbursed during the period,
including the general use of funds
advanced and the general source of
funds for reimbursements.
-------------------------------------------------------------------------------
(11) Any material modifications, Form 10-D
extensions or waivers to pool asset report: Servicer
terms, fees, penalties or payments
during the distribution period or that
have cumulatively become material over
time.
-------------------------------------------------------------------------------
(12) Material breaches of pool asset Form 10-D
representations or warranties or report: Trustee
transaction covenants. (based on actual
knowledge to the
extent not
notified by the
Servicer or the
Depositor)and
Depositor (to
the extent of
actual knowledge)
-------------------------------------------------------------------------------
(13) Information on ratio, coverage or 4.03 statement
other tests used for determining any
early amortization, liquidation or
other performance trigger and whether
the trigger was met.
-------------------------------------------------------------------------------
(14) Information regarding any new Form 10-D
issuance of mortgage-backed securities report: Depositor
backed by the same asset pool,
[information regarding] any pool asset Form 10-D
changes (other than in connection with report: Servicer
a pool asset converting into cash in
accordance with its terms), such as
additions or removals in connection
with a pre-funding or revolving period
and pool asset
-------------------------------------------------------------------------------
Q-2
-------------------------------------------------------------------------------
substitutions and repurchases (and
purchase rates, if applicable), and
cash flows available for future
purchases, such as the balances of any
pre-funding or revolving accounts, if
applicable.
Disclose any material changes in the
solicitation, credit-granting,
underwriting, origination, acquisition Form 10-D
or pool selection criteria or report: Servicer
procedures, as applicable, used to
originate, acquire or select the new
pool assets.
-------------------------------------------------------------------------------
Item 1121(b) - Pre-Funding or Revolving N/A
Period Information
Updated pool information as required
under Item 1121(b).
-------------------------------------------------------------------------------
2 Legal Proceedings
-------------------------------------------------------------------------------
Item 1117 - Legal proceedings pending
against the following entities, or
their respective property, that is
material to Certificateholders,
including proceedings known to be
contemplated by governmental
authorities:
Sponsor (Seller) Seller
Depositor Depositor
Trustee Trustee
Issuing entity Depositor
Servicer, affiliated Servicer, other Servicer
Servicer servicing 20% or more of pool
assets at time of report, other
material servicers
Originator of 20% or more of pool Seller
assets as of the Cut-off Date
Custodian Trustee
-------------------------------------------------------------------------------
3 Sales of Securities and Use of Proceeds
-------------------------------------------------------------------------------
Information from Item 2(a) of Part II
of Form 10-Q:
With respect to any sale of securities Depositor
by the sponsor, depositor or issuing
entity, that are backed by the same
asset pool or are otherwise issued by
the issuing entity, whether or not
registered, provide the sales and use
of proceeds information in Item 701 of
Regulation S-K. Pricing information
can be omitted if securities were not
registered.
-------------------------------------------------------------------------------
4 Defaults Upon Senior Securities
-------------------------------------------------------------------------------
Information from Item 3 of Part II of
Form 10-Q:
-------------------------------------------------------------------------------
Q-3
-------------------------------------------------------------------------------
Report the occurrence of any Event of
Default (after expiration of any grace Trustee
period and provision of any required
notice)
-------------------------------------------------------------------------------
5 Submission of Matters to a Vote of
Security Holders
-------------------------------------------------------------------------------
Information from Item 4 of Part II of Party submitting
Form 10-Q the matter to
Holders for vote
-------------------------------------------------------------------------------
6 Significant Obligors of Pool Assets
-------------------------------------------------------------------------------
Item 1112(b) - Significant Obligor N/A
Financial Information*
-------------------------------------------------------------------------------
*This information need only be reported
on the Form 10-D for the distribution
period in which updated information is
required pursuant to the Item.
-------------------------------------------------------------------------------
7 Significant Enhancement Provider
Information
-------------------------------------------------------------------------------
Item 1114(b)(2) - Credit Enhancement Depositor
Provider Financial Information*
Determining applicable disclosure
threshold
Obtaining required financial
information or effecting incorporation
by reference
-------------------------------------------------------------------------------
Item 1115(b) - Derivative Counterparty Depositor
Financial Information*
Determining current maximum probable
exposure
Determining current significance
percentage
Obtaining required financial
information or effecting incorporation
by reference
-------------------------------------------------------------------------------
*This information need only be reported
on the Form 10-D for the distribution
period in which updated information is
required pursuant to the Items.
-------------------------------------------------------------------------------
8 Other Information
-------------------------------------------------------------------------------
Disclose any information required to be The Responsible
reported on Form 8-K during the period Party for the
covered by the Form 10-D but not applicable Form
reported 8-K item as
indicated below
-------------------------------------------------------------------------------
9 Exhibits
-------------------------------------------------------------------------------
Distribution report Trustee
-------------------------------------------------------------------------------
Exhibits required by Item 601 of Depositor
Regulation S-K, such as material
agreements
-------------------------------------------------------------------------------
8-K Must be filed within four business days of an event reportable on
Form 8-K.
-------------------------------------------------------------------------------
1.01 Entry into a Material Definitive
Agreement
-------------------------------------------------------------------------------
Q-4
-------------------------------------------------------------------------------
Disclosure is required regarding entry Servicer; or any
into or amendment of any definitive of the following
agreement that is material to the that is a party
securitization, even if depositor is to the agreement
not a party. if Servicer is
not: Trustee,
Examples: servicing agreement, Sponsor,
custodial agreement. Depositor
Note: disclosure not required as to
definitive agreements that are fully
disclosed in the prospectus
-------------------------------------------------------------------------------
1.02 Termination of a Material Definitive
Agreement
-------------------------------------------------------------------------------
Disclosure is required regarding Servicer; or any
termination of any definitive of the following
agreement that is material to the that is a party
securitization (other than expiration to the agreement
in accordance with its terms), even if if Servicer is
depositor is not a party. not: Trustee,
Sponsor,
Examples: servicing agreement, Depositor
custodial agreement.
-------------------------------------------------------------------------------
1.03 Bankruptcy or Receivership
-------------------------------------------------------------------------------
Disclosure is required regarding the Depositor
bankruptcy or receivership, if known to
the Depositor, with respect to any of
the following:
Sponsor (Seller), Depositor, Servicer,
affiliated Servicer, other Servicer
servicing 20% or more of pool assets at
time of report, other material
servicers, Trustee, significant
obligor, credit enhancer (10% or more),
derivatives counterparty
-------------------------------------------------------------------------------
2.04 Triggering Events that Accelerate or
Increase a Direct Financial Obligation
or an Obligation under an Off-Balance
Sheet Arrangement
-------------------------------------------------------------------------------
Includes an early amortization, Servicer/Trustee
performance trigger or other event, (to the extent
including event of default, that would of actual
materially alter the payment knowledge)
priority/distribution of cash
flows/amortization schedule.
Disclosure will be made of events other
than waterfall triggers which are
disclosed in the 4.03 statement
-------------------------------------------------------------------------------
3.03 Material Modification to Rights of
Security Holders
-------------------------------------------------------------------------------
Disclosure is required of any material Trustee
modification to documents defining the
rights of Certificateholders, including
the Pooling and Servicing Agreement
-------------------------------------------------------------------------------
5.03 Amendments to Articles of Incorporation
or Bylaws; Change in Fiscal Year
-------------------------------------------------------------------------------
Disclosure is required of any amendment Depositor
"to the governing documents of the
issuing entity"
-------------------------------------------------------------------------------
Q-5
-------------------------------------------------------------------------------
5.06 Change in Shell Company Status
-------------------------------------------------------------------------------
[Not applicable to ABS issuers] Depositor
-------------------------------------------------------------------------------
6.01 ABS Informational and Computational
Material
-------------------------------------------------------------------------------
[Not included in reports to be filed Depositor
under Section 3.18]
-------------------------------------------------------------------------------
6.02 Change of Servicer or Trustee
-------------------------------------------------------------------------------
Requires disclosure of any removal, Trustee or
replacement, substitution or addition Servicer
of any servicer, affiliated servicer,
other servicer servicing 10% or more of
pool assets at time of report, other
material servicers, certificate
administrator or trustee. Reg AB
disclosure about any new servicer or
trustee is also required.
-------------------------------------------------------------------------------
6.03 Change in Credit Enhancement or Other
External Support
-------------------------------------------------------------------------------
Covers termination of any enhancement Depositor or
in manner other than by its terms, the Trustee
addition of an enhancement, or a
material change in the enhancement
provided. Applies to external credit
enhancements as well as derivatives.
Reg AB disclosure about any new
enhancement provider is also required.
-------------------------------------------------------------------------------
6.04 Failure to Make a Required Distribution Trustee
-------------------------------------------------------------------------------
6.05 Securities Act Updating Disclosure
-------------------------------------------------------------------------------
If any material pool characteristic Depositor
differs by 5% or more at the time of
issuance of the securities from the
description in the final prospectus,
provide updated Reg AB disclosure about
the actual asset pool.
-------------------------------------------------------------------------------
If there are any new servicers or Depositor
originators required to be disclosed
under Regulation AB as a result of the
foregoing, provide the information
called for in Items 1108 and 1110
respectively.
-------------------------------------------------------------------------------
7.01 Regulation FD Disclosure Depositor
-------------------------------------------------------------------------------
8.01 Other Events
-------------------------------------------------------------------------------
Any event, with respect to which Depositor
information is not otherwise called for
in Form 8-K, that the registrant deems
of importance to security holders.
-------------------------------------------------------------------------------
9.01 Financial Statements and Exhibits The Responsible
Party applicable
to reportable
event
-------------------------------------------------------------------------------
10-K Must be filed within 90 days of the fiscal year end for the
registrant.
-------------------------------------------------------------------------------
9B Other Information
-------------------------------------------------------------------------------
Disclose any information required to be The Responsible
reported on Form 8-K during the fourth Party for the
quarter covered by the Form 10-K but applicable Form
not reported 8-K item as
indicated above
-------------------------------------------------------------------------------
15 Exhibits and Financial Statement
Schedules
-------------------------------------------------------------------------------
Item 1112(b) - Significant Obligor Servicer
Financial Information
-------------------------------------------------------------------------------
Q-6
-------------------------------------------------------------------------------
Item 1114(b)(2) - Credit Enhancement
Provider Financial Information Depositor
Determining applicable disclosure
threshold
Obtaining required financial
information or effecting incorporation
by reference
-------------------------------------------------------------------------------
Item 1115(b) - Derivative Counterparty Depositor
Financial Information
Determining current maximum probable
exposure
Determining current significance
percentage
Obtaining required financial
information or effecting incorporation
by reference
-------------------------------------------------------------------------------
Item 1117 - Legal proceedings pending
against the following entities, or
their respective property, that is
material to Certificateholders,
including proceedings known to be
contemplated by governmental
authorities:
Sponsor (Seller) Seller
Depositor Depositor
Trustee Trustee
Issuing entity Depositor
Servicer, affiliated Servicer, other Servicer
Servicer servicing 20% or more of pool
assets at time of report, other
material servicers
Originator of 20% or more of pool Servicer
assets as of the Cut-off Date
-------------------------------------------------------------------------------
Item 1119 - Affiliations and
relationships between the following
entities, or their respective
affiliates, that are material to
Certificateholders:
Sponsor (Seller)
Seller
Depositor
Depositor
Trustee
Trustee (only as
Servicer, affiliated Servicer, other to affiliations
Servicer servicing 20% or more of pool between the
assets at time of report, other Trustee and such
material servicers other parties
listed)
Originator Servicer
-------------------------------------------------------------------------------
Q-7
-------------------------------------------------------------------------------
Credit Enhancer/Support Provider
Significant Obligor Depositor
Depositor
Servicer
-------------------------------------------------------------------------------
Item 1122 - Assessment of Compliance Each Party
with Servicing Criteria participating in
the servicing
function
-------------------------------------------------------------------------------
Item 1123 - Servicer Compliance Servicer
Statement
-------------------------------------------------------------------------------
Q-8
EXHIBIT R
FORM OF PERFORMANCE CERTIFICATION
(Trustee)
Re: The Pooling and Servicing Agreement dated as of February 1,
2007 (the "Pooling and Servicing Agreement") among IndyMac
MBS, Inc., as Depositor, IndyMac Bank, F.S.B., as Seller
and Servicer, and the undersigned, as Trustee (the
"Trustee")
I, ________________________________, the _______________________ of the
Trustee (the "Trustee"), certify to the Depositor and the Servicer, and their
officers, with the knowledge and intent that they will rely upon this
certification, that:
(i) I have reviewed the report on assessment of the Trustee's
compliance with the servicing criteria set forth in Item 1122(d) of
Regulation AB (the "Servicing Criteria"), provided in accordance with
Rules 13a-18 and 15d-18 under Securities Exchange Act of 1934, as
amended (the "Exchange Act") and Item 1122 of Regulation AB (the
"Servicing Assessment"), the registered public accounting firm's
attestation report provided in accordance with Rules 13a-18 and 15d-18
under the Exchange Act and Section 1122(b) of Regulation AB (the
"Attestation Report"), all reports on Form 10-D containing statements to
certificateholders filed in respect of the period included in the year
covered by the annual report of the Trust Fund (collectively, the
"Distribution Date Statements");
(ii) Assuming the accuracy and completeness of the information
delivered to the Trustee by the Servicer as provided in the Pooling and
Servicing Agreement and subject to paragraph (iv) below, to its
knowledge the distribution information determined by the Trustee and set
forth in the Distribution Date Statements contained in all Form 10-D's
included in the year covered by the annual report of such Trust on Form
10-K for the calendar year 200[ ], is complete and does not contain any
material misstatement of fact as of the last day of the period covered
by such annual report;
(iii) Based solely on the information delivered to the Trustee by
the Servicer as provided in the Pooling and Servicing Agreement, the
distribution information required under the Pooling and Servicing
Agreement to be contained in the Trust Fund's Distribution Date
Statements is included in such Distribution Date Statements;
(iv) The Trustee is not certifying as to the accuracy,
completeness or correctness of the information which it received from
the Servicer and did not independently verify or confirm the accuracy,
completeness or correctness of the information provided by the Servicer;
(v) I am responsible for reviewing the activities performed by
the Trustee as a person "performing a servicing function" under the
Pooling and Servicing Agreement, and based on my knowledge and the
compliance review conducted in preparing the Servicing Assessment and
except as disclosed in the Servicing Assessment or the Attestation
Report, the Trustee has fulfilled its obligations under the Pooling and
Servicing Agreement; and
(vi) The Servicing Assessment and Attestation Report required to
be provided by the Trustee and by Subcontractor, if any, pursuant to the
Pooling and Servicing Agreement, have been provided to the Servicer and
the Depositor. Any material instances of noncompliance described in such
reports have been disclosed to the Servicer and the Depositor. Any
material instance of noncompliance with the Servicing Criteria has been
disclosed in such reports.
R-1
Date: _________________________
By: ________________________________
Name:
Title:
R-2
EXHIBIT S
FORM OF SERVICING CRITERIA TO BE ADDRESSED IN
ASSESSMENT OF COMPLIANCE STATEMENT
Key:
X - obligation
Where there are multiple checks for criteria the attesting party will identify
in their management assertion that they are attesting only to the portion of
the distribution chain they are responsible for in the related transaction
agreements.
---------------------------------------------------------------------------------------------------
Reg AB
Reference Servicing Criteria Servicer Trustee Notes
---------------------------------------------------------------------------------------------------
1122(d)(1)(i) Policies and procedures X X
are instituted to monitor
any performance or other
triggers and events of
default in accordance with
the transaction agreements.
---------------------------------------------------------------------------------------------------
1122(d)(1)(ii) If any material servicing X X
activities are outsourced
to third parties, policies
and procedures are
instituted to monitor the
third party's performance
and compliance with such
servicing activities.
---------------------------------------------------------------------------------------------------
1122(d)(1)(iii) Any requirements in the NA
transaction agreements to
maintain a back-up
servicer for the Pool
Assets are maintained.
---------------------------------------------------------------------------------------------------
1122(d)(1)(iv) A fidelity bond and errors X
and omissions policy is in
effect on the party
participating in the
servicing function
throughout the reporting
period in the amount of
coverage required by and
otherwise in accordance
with the terms of the
transaction agreements.
---------------------------------------------------------------------------------------------------
S-1
---------------------------------------------------------------------------------------------------
Reg AB Primary
Reference Servicing Criteria Servicer Trustee Notes
---------------------------------------------------------------------------------------------------
1122(d)(2)(i) Payments on pool assets X X
are deposited into the
appropriate custodial bank
accounts and related bank
clearing accounts no more
than two business days
following receipt, or such
other number of days
specified in the
transaction agreements.
---------------------------------------------------------------------------------------------------
1122(d)(2)(ii) Disbursements made via X X
wire transfer on behalf of
an obligor or to an
investor are made only by
authorized personnel.
---------------------------------------------------------------------------------------------------
1122(d)(2)(iii) Advances of funds or X
guarantees regarding
collections, cash flows or
distributions, and any
interest or other fees
charged for such advances,
are made, reviewed and
approved as specified in
the transaction agreements.
---------------------------------------------------------------------------------------------------
1122(d)(2)(iv) The related accounts for X X
the transaction, such as
cash reserve accounts or
accounts established as a
form of over
collateralization, are
separately maintained
(e.g., with respect to
commingling of cash) as
set forth in the
transaction agreements.
---------------------------------------------------------------------------------------------------
1122(d)(2)(v) Each custodial account is X X
maintained at a federally
insured depository
institution as set forth
in the transaction
agreements. For purposes
of this criterion,
"federally insured
depository institution"
with respect to a foreign
financial institution
means a foreign financial
institution that meets the
requirements of Rule
13k-1(b)(1) of the
Securities Exchange Act.
---------------------------------------------------------------------------------------------------
1122(d)(2)(vi) Unissued checks are X
safeguarded so as to
prevent unauthorized
access.
---------------------------------------------------------------------------------------------------
1122(d)(2)(vii) Reconciliations are X X
prepared on a monthly
basis for all asset-backed
securities related bank
accounts, including
custodial accounts and
related bank clearing
accounts. These
reconciliations are (A)
mathematically accurate;
(B) prepared within 30
calendar days after the
bank statement cutoff
date, or such other number
of days specified in the
transaction agreements;
(C) reviewed and approved
by someone other than the
person who prepared the
reconciliation; and (D)
contain explanations for
reconciling items. These
reconciling items are
resolved within 90
calendar days of their
original identification,
or such other number of
days specified in the
transaction agreements.
---------------------------------------------------------------------------------------------------
S-2
---------------------------------------------------------------------------------------------------
Reg AB
Reference Servicing Criteria Servicer Trustee Notes
---------------------------------------------------------------------------------------------------
1122(d)(3)(i) Reports to investors, X X
including those to be
filed with the Commission,
are maintained in
accordance with the
transaction agreements and
applicable Commission
requirements.
Specifically, such reports
(A) are prepared in
accordance with timeframes
and other terms set forth
in the transaction
agreements; (B) provide
information calculated in
accordance with the terms
specified in the
transaction agreements;
(C) are filed with the
Commission as required by
its rules and regulations;
and (D) agree with
investors' or the
trustee's records as to
the total unpaid principal
balance and number of Pool
Assets serviced by the
Servicer.
---------------------------------------------------------------------------------------------------
1122(d)(3)(ii) Amounts due to investors X X
are allocated and remitted
in accordance with
timeframes, distribution
priority and other terms
set forth in the
transaction agreements.
---------------------------------------------------------------------------------------------------
1122(d)(3)(iii) Disbursements made to an X X
investor are posted within
two business days to the
Servicer's investor
records, or such other
number of days specified
in the transaction
agreements.
---------------------------------------------------------------------------------------------------
1122(d)(3)(iv) Amounts remitted to X X
investors per the investor
reports agree with
cancelled checks, or other
form of payment, or
custodial bank statements.
---------------------------------------------------------------------------------------------------
S-3
---------------------------------------------------------------------------------------------------
Reg AB
Reference Servicing Criteria Servicer Trustee Notes
---------------------------------------------------------------------------------------------------
1122(d)(4)(i) Collateral or security on X X
pool assets is maintained
as required by the
transaction agreements or
related pool asset
documents.
---------------------------------------------------------------------------------------------------
1122(d)(4)(ii) Pool assets and related X X
documents are safeguarded
as required by the
transaction agreements.
---------------------------------------------------------------------------------------------------
1122(d)(4)(iii) Any additions, removals or X X
substitutions to the asset
pool are made, reviewed
and approved in accordance
with any conditions or
requirements in the
transaction agreements.
---------------------------------------------------------------------------------------------------
1122(d)(4)(iv) Payments on pool assets, X
including any payoffs,
made in accordance with
the related pool asset
documents are posted to
the Servicer's obligor
records maintained no more
than two business days
after receipt, or such
other number of days
specified in the
transaction agreements,
and allocated to
principal, interest or
other items (e.g., escrow)
in accordance with the
related pool asset
documents.
---------------------------------------------------------------------------------------------------
1122(d)(4)(v) The Servicer's records X
regarding the pool assets
agree with the Servicer's
records with respect to an
obligor's unpaid principal
balance.
---------------------------------------------------------------------------------------------------
1122(d)(4)(vi) Changes with respect to X
the terms or status of an
obligor's pool assets
(e.g., loan modifications
or re-agings) are made,
reviewed and approved by
authorized personnel in
accordance with the
transaction agreements and
related pool asset
documents.
---------------------------------------------------------------------------------------------------
1122(d)(4)(vii) Loss mitigation or X
recovery actions (e.g.,
forbearance plans,
modifications and deeds in
lieu of foreclosure,
foreclosures and
repossessions, as
applicable) are initiated,
conducted and concluded in
accordance with the
timeframes or other
requirements established
by the transaction
agreements.
---------------------------------------------------------------------------------------------------
1122(d)(4)(viii) Records documenting X
collection efforts are
maintained during the
period a pool asset is
delinquent in accordance
with the transaction
agreements. Such records
are maintained on at least
a monthly basis, or such
other period specified in
the transaction
agreements, and describe
the entity's activities in
monitoring delinquent pool
assets including, for
example, phone calls,
letters and payment
rescheduling plans in
cases where delinquency is
deemed temporary (e.g.,
illness or unemployment).
---------------------------------------------------------------------------------------------------
1122(d)(4)(ix) Adjustments to interest X
rates or rates of return
for pool assets with
variable rates are
computed based on the
related pool asset
documents.
---------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------
Reg AB
---------------------------------------------------------------------------------------------------
S-4
---------------------------------------------------------------------------------------------------
Reference Servicing Criteria Servicer Trustee Notes
---------------------------------------------------------------------------------------------------
1122(d)(4)(x) Regarding any funds held X
in trust for an obligor
(such as escrow accounts):
(A) such funds are
analyzed, in accordance
with the obligor's pool
asset documents, on at
least an annual basis, or
such other period
specified in the
transaction agreements;
(B) interest on such funds
is paid, or credited, to
obligors in accordance
with applicable pool asset
documents and state laws;
and (C) such funds are
returned to the obligor
within 30 calendar days of
full repayment of the
related pool assets, or
such other number of days
specified in the
transaction agreements.
---------------------------------------------------------------------------------------------------
1122(d)(4)(xi) Payments made on behalf of X
an obligor (such as tax or
insurance payments) are
made on or before the
related penalty or
expiration dates, as
indicated on the
appropriate bills or
notices for such payments,
provided that such support
has been received by the
servicer at least 30
calendar days prior to
these dates, or such other
number of days specified
in the transaction
agreements.
---------------------------------------------------------------------------------------------------
1122(d)(4)(xii) Any late payment penalties X
in connection with any
payment to be made on
behalf of an obligor are
paid from the Servicer's
funds and not charged to
the obligor, unless the
late payment was due to
the obligor's error or
omission.
---------------------------------------------------------------------------------------------------
1122(d)(4)(xiii) Disbursements made on X
behalf of an obligor are
posted within two business
days to the obligor's
records maintained by the
servicer, or such other
number of days specified
in the transaction
agreements.
---------------------------------------------------------------------------------------------------
1122(d)(4)(xiv) Delinquencies, charge-offs X
and uncollectible accounts
are recognized and
recorded in accordance
with the transaction
agreements.
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1122(d)(4)(xv) Any external enhancement X (with X
or other support, respect
identified in Item to a
1114(a)(1) through (3) or swap
Item 1115 of Regulation disclosure
AB, is maintained as set event)
forth in the transaction
agreements.
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S-5
EXHIBIT T
[FORM OF] LIST OF ITEM 1119 PARTIES
ASSET BACKED CERTIFICATES
Series 200_-__
[Date]
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Party Contact Information
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T-1
EXHIBIT U
[FORM OF] ▇▇▇▇▇▇▇▇-▇▇▇▇▇ CERTIFICATION
(Replacement Servicer)
Re: Indymac INDX Mortgage Loan Trust 2007-AR1
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The undersigned Servicer hereby certifies to the Depositor and its
officers, directors and Affiliates (collectively, the "Certification Parties")
as follows, with the knowledge and intent that the Certification Parties will
rely on this Certification in connection with the certification concerning the
Trust Fund to be signed by an officer of the Depositor and submitted to the
Securities and Exchange Commission pursuant to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002:
1. I have reviewed the servicer compliance statement of the Servicer
provided in accordance with Item 1123 of Regulation AB (the "Compliance
Statement"), the report on assessment of the Servicer's compliance with the
servicing criteria set forth in Item 1122(d) of Regulation AB (the "Servicing
Criteria"), provided in accordance with Rules 13a-18 and 15d-18 under
Securities Exchange Act of 1934, as amended (the "Exchange Act") and Item 1122
of Regulation AB (the "Servicing Assessment"), the registered public
accounting firm's attestation report provided in accordance with Rules 13a-18
and 15d-18 under the Exchange Act and Section 1122(b) of Regulation AB (the
"Attestation Report"), and all servicing reports, officer's certificates and
other information relating to the servicing of the Mortgage Loans by the
Servicer during 200[ ] that were delivered by the Servicer to the Trustee
pursuant to the Agreement (collectively, the "Servicing Information");
2. Based on my knowledge, the Servicing Information, taken as a
whole, does not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made, in the light of
the circumstances under which such statements were made, not misleading with
respect to the period of time covered by the Servicing Information;
3. Based on my knowledge, all of the Servicing Information required
to be provided by the Servicer under the Agreement has been provided to the
Depositor or the Trustee, as applicable;
4. I am responsible for reviewing the activities performed by the
Servicer as servicer under the Servicing Agreement (the "Pooling and Servicing
Agreement") relating to the above-referenced Series, among IndyMac MBS, Inc.,
as Depositor, IndyMac Bank, F.S.B., as Seller and Servicer, and Deutsche Bank
National Trust Company, as Trustee and based on my knowledge and the
compliance review conducted in preparing the Compliance Statement and except
as disclosed in the Compliance Statement, the Pooling and Servicing Assessment
or the Attestation Report, the Servicer has fulfilled its obligations under
the Agreement in all material respects; and
5. The Compliance Statement required to be delivered by the Servicer
pursuant to the Pooling and Servicing Agreement, and the Servicing Assessment
and Attestation Report required to be provided by the Servicer and by any
Reporting Subcontractor pursuant to the Agreement, have been provided to the
Depositor. Any material instances of noncompliance described in such reports
have been disclosed to the Depositor. Any material instance of noncompliance
with the Servicing Criteria has been disclosed in such reports.
U-1
[SERVICER]
By:________________________________
Name:
Title:
Date: _________________________
U-2