EXHIBIT 99.1
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EXECUTION COPY
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INDYMAC MBS, INC.
Depositor
INDYMAC BANK, F.S.B.
Seller and Master Servicer
DEUTSCHE BANK NATIONAL TRUST COMPANY
Trustee
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POOLING AND SERVICING AGREEMENT
Dated as of November 1, 2002
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RESIDENTIAL ASSET SECURITIZATION TRUST
Series 2002-A15
MORTGAGE PASS-THROUGH CERTIFICATES
Series 2002-O
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TABLE OF CONTENTS
Page
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ARTICLE One Definitions ..................................................5
Section 1.01 Definitions.......................................5
Section 1.02 Rules of Construction............................32
ARTICLE Two Conveyance Of Mortgage Loans; Representations And Warranties....34
Section 2.01 Conveyance of Mortgage Loans.....................34
Section 2.02 Acceptance by the Trustee of the Mortgage Loans..37
Section 2.03 Representations, Warranties, and Covenants of the
Seller and the Master Servicer...................38
Section 2.04 Representations and Warranties of the
Depositor as to the Mortgage Loans...............41
Section 2.05 Delivery of Opinion of Counsel in Connection
with Substitutions and Repurchases...............42
Section 2.06 Execution and Delivery of Certificates...........42
Section 2.07 REMIC Matters....................................42
Section 2.08 Subsequent Transfers.............................42
Section 2.09 Mandatory Prepayment.............................45
ARTICLE Three Administration and Servicing of Mortgage Loans................46
Section 3.01 Master Servicer to Service Mortgage Loans........46
Section 3.02 Subservicing; Enforcement of the Obligations
of Subservicers..................................46
Section 3.03 Rights of the Depositor and the Trustee in
Respect of the Master Servicer...................47
Section 3.04 No Contractual Relationship Between Subservicers
and the Trustee..................................47
Section 3.05 Trustee to Act as Master Servicer................47
Section 3.06 Collection of Mortgage Loan Payments; Servicing
Accounts; Collection Account; Certificate Account;
Distribution Account; Pre-Funding Account;
Capitalized Interest Account.....................48
Section 3.07 Collection of Taxes, Assessments and Similar
Items; Escrow Accounts...........................51
Section 3.08 Access to Certain Documentation and Information
Regarding the Mortgage Loans.....................53
Section 3.09 Permitted Withdrawals from the Certificate
Account and the Distribution Account.............53
Section 3.10 Maintenance of Hazard Insurance; Maintenance
of Primary Insurance Policies....................54
Section 3.11 Enforcement of Due-On-Sale Clauses;
Assumption Agreements............................55
Section 3.12 Realization Upon Defaulted Mortgage Loans........57
Section 3.13 Trustee to Cooperate; Release of Mortgage Files..59
Section 3.14 Documents, Records and Funds in Possession of
the Master Servicer to be Held for the Trustee...59
Section 3.15 Servicing Compensation...........................60
Section 3.16 Access to Certain Documentation..................60
Section 3.17 Annual Statement as to Compliance................60
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Section 3.18 Annual Independent Public Accountants' Servicing
Statement; Financial Statements..................61
Section 3.19 Errors and Omissions Insurance; Fidelity Bonds...61
Section 3.20 Notification of Adjustments......................61
Section 3.21 Prepayment Charges...............................62
ARTICLE Four Distributions and Advances by the Master Servicer..............63
Section 4.01 Advances.........................................63
Section 4.02 Priorities of Distribution.......................63
Section 4.03 [Reserved].......................................66
Section 4.04 [Reserved].......................................66
Section 4.05 Allocation of Realized Losses....................66
Section 4.06 Monthly Statements to Certificateholders.........67
Section 4.07 [Reserved].......................................69
Section 4.08 Determination of Pass-Through Rates for LIBOR
Certificates.....................................69
ARTICLE Five The Certificates...............................................72
Section 5.01 The Certificates.................................72
Section 5.02 Certificate Register; Registration of Transfer
and Exchange of Certificates.....................72
Section 5.03 Mutilated, Destroyed, Lost or Stolen
Certificates.....................................76
Section 5.04 Persons Deemed Owners............................76
Section 5.05 Access to List of Certificateholders' Names
and Addresses....................................77
Section 5.06 Maintenance of Office or Agency..................77
ARTICLE Six The Depositor and the Master Servicer...........................78
Section 6.01 Respective Liabilities of the Depositor and the
Master Servicer..................................78
Section 6.02 Merger or Consolidation of the Depositor or the
Master Servicer..................................78
Section 6.03 Limitation on Liability of the Depositor,
the Seller, the Master Servicer, and Others......78
Section 6.04 Limitation on Resignation of the
Master Servicer..................................79
ARTICLE Seven Default.......................................................80
Section 7.01 Events of Default................................80
Section 7.02 Trustee to Act; Appointment of Successor.........81
Section 7.03 Notification to Certificateholders...............82
ARTICLE Eight Concerning the Trustee........................................83
Section 8.01 Duties of the Trustee............................83
Section 8.02 Certain Matters Affecting the Trustee............83
Section 8.03 Trustee Not Liable for Certificates or
Mortgage Loans...................................84
Section 8.04 Trustee May Own Certificates.....................85
Section 8.05 Trustee's Fees and Expenses......................85
Section 8.06 Eligibility Requirements for the Trustee.........86
Section 8.07 Resignation and Removal of the Trustee...........86
Section 8.08 Successor Trustee................................87
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Section 8.09 Merger or Consolidation of the Trustee...........87
Section 8.10 Appointment of Co-Trustee or Separate Trustee....87
Section 8.11 Tax Matters......................................88
Section 8.12 Periodic Filings.................................90
ARTICLE Nine Termination....................................................92
Section 9.01 Termination upon Liquidation or Purchase of the
Mortgage Loans...................................92
Section 9.02 Final Distribution on the Certificates...........92
Section 9.03 Additional Termination Requirements..............93
ARTICLE Ten Miscellaneous Provisions........................................95
Section 10.01 Amendment........................................95
Section 10.02 Recordation of Agreement; Counterparts...........96
Section 10.03 Governing Law....................................96
Section 10.04 Intention of Parties.............................96
Section 10.05 Notices..........................................97
Section 10.06 Severability of Provisions.......................98
Section 10.07 Assignment.......................................98
Section 10.08 Limitation on Rights of Certificateholders.......98
Section 10.09 Inspection and Audit Rights......................99
Section 10.10 Certificates Nonassessable and Fully Paid........99
Section 10.11 Official Record..................................99
Section 10.12 Protection of Assets.............................99
Section 10.13 Qualifying Special Purpose Entity................99
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SCHEDULES
Schedule I: Mortgage Loan Schedule..............................S-I-1
Schedule II: Representations and Warranties of the
Seller/Master Servicer..............................S-II-1
Schedule III: Representations and Warranties as to the
Mortgage Loans......................................S-III-1
Schedule IV: [Reserved]..........................................S-IV-1
EXHIBITS
Exhibit A: Form of Senior Certificate..............................A-1
Exhibit B: Form of Subordinated Certificate........................B-1
Exhibit C: Form of Class A-R Certificate...........................C-1
Exhibit D: Form of Notional Amount Certificate.....................D-1
Exhibit E Form of Reverse of Certificates.........................E-1
Exhibit F: [Reserved]..............................................F-1
Exhibit G: Form of Initial Certification of Trustee ...............G-1
Exhibit G-1: Form of Delay Delivery Certification..................G-1-1
Exhibit H: Form of Final Certification of Trustee..................H-1
Exhibit I: Form of Transfer Affidavit..............................I-1
Exhibit J: Form of Transferor Certificate..........................J-1
Exhibit K: Form of Investment Letter (Non-Rule 144A)...............K-1
Exhibit L: Form of Rule 144A Letter................................L-1
Exhibit M: Form of Request for Release (for Trustee)...............M-1
Exhibit N: Request for Release of Documents........................N-1
Exhibit O: Form of Trustee Certification...........................O-1
Exhibit R: Form of Subsequent Transfer Agreement...................R-1
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THIS POOLING AND SERVICING AGREEMENT, dated as of November 1, 2002,
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 master servicer (in that
capacity, the "Master 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 will elect that the Trust Fund be treated for federal income tax
purposes as comprising one real estate mortgage investment conduit (the
"REMIC"). The REMIC will hold as assets all property of the Trust Fund and will
be evidenced by the Certificates which will represent the "regular interests"
in the REMIC and the Class A-R Certificate as the single "residual interest" in
the REMIC. The latest possible maturity date of the REMIC regular interests
created herein shall be the Latest Possible Maturity Date.
The REMIC
The following table sets forth characteristics of the Certificates,
together with minimum denominations and integral multiples in excess thereof in
which such Classes shall be issuable, except that one Residual Certificate
representing the Tax Matters Person Certificate may be issued in a different
amount:
1
============================ ========================= ================= ================== =====================
--------------------------- Initial Class Pass-Through Minimum Integral Multiples
Class Designation Certificate Balance Rate Denomination in Excess of Minimum
---------------------------- ------------------------- ----------------- ------------------ ---------------------
---------------------------- ------------------------- ----------------- ------------------ ---------------------
Class A-1 $198,666,000 6.00% $ 25,000 $1,000
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---------------------------- ------------------------- ----------------- ------------------ ---------------------
Class A-2 $20,000,000 8.50% $ 25,000 $1,000
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---------------------------- ------------------------- ----------------- ------------------ ---------------------
Class A-3 $100,000,000 5.50% $ 25,000 $1,000
---------------------------- ------------------------- ----------------- ------------------ ---------------------
---------------------------- ------------------------- ----------------- ------------------ ---------------------
Class A-4 $ 3,000,000 6.00% $ 1,000 $1,000
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---------------------------- ------------------------- ----------------- ------------------ ---------------------
Class A-5 $ 1,500,000 5.75% $ 1,000 $1,000
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---------------------------- ------------------------- ----------------- ------------------ ---------------------
Class A-6 $ 1,500,000 6.25% $ 1,000 $1,000
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Class A-7 $ 3,600,000 6.00% $ 1,000 $1,000
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---------------------------- ------------------------- ----------------- ------------------ ---------------------
Class A-8 $ 2,400,000 6.00% $ 1,000 $1,000
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Class A-9 $ 3,000,000 6.00% $ 1,000 $1,000
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Class A-10 $ 2,000,000 6.00% $ 1,000 $1,000
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---------------------------- ------------------------- ----------------- ------------------ ---------------------
Class A-11 $40,000,000 6.00% $ 25,000 $1,000
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Class PO $ 333,993 N/A $ 25,000 $1,000
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Class A-X Notional(1) Variable(2) $ 25,000 $1,000
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Class A-R $ 100 N/A $ 100 N/A
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Class B-1 $14,800,000 6.00% $ 25,000 $1,000
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Class B-2 $ 3,200,000 6.00% $ 25,000 $1,000
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Class B-3 $ 2,600,000 6.00% $ 25,000 $1,000
---------------------------- ------------------------- ----------------- ------------------ ---------------------
---------------------------- ------------------------- ----------------- ------------------ ---------------------
Class B-4 $ 1,200,000 6.00% $ 100,000 $1,000
---------------------------- ------------------------- ----------------- ------------------ ---------------------
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Class B-5 $ 1,000,000 6.00% $ 100,000 $1,000
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Class B-6 $ 1,199,907 6.00% $ 100,000 $1,000
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Class P $ 100 0%(3) $ 100 N/A
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1. The Class A-X Certificates will not be entitled to any principal but will
have a notional balance equal to the aggregate of the Stated Principal
Balances of the Non-Discount Mortgage Loans as of the first day of the
related Due Period. As of the Closing Date, the Notional Amount of the
Class A-X Certificates is $355,236,411.25.
2. The Pass-Through Rate of the Class A-X Certificates for any Distribution
Date will be equal to the excess of the weighted average of the Adjusted
Net Mortgage Rates of the Non-Discount Mortgage Loans over 6.00% per
annum. The Pass-Through Rate for the Class A-X Certificates for the first
Distribution Date is 0.62% per annum.
3. The Class P Certificate will not be entitled to any interest, but will be
entitled to 100% of any prepayment premiums paid on the Mortgage Loans.
Set forth below are designations of Classes or Components of Certificates to
the categories used herein:
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The foregoing provisions in the Preliminary Statement are intended to
cause all net interest and principal collections in respect of the Mortgage
Loans to be distributed from each Subsidiary REMIC to the Master REMIC and from
the Master REMIC to each Class of Certificates. The Preliminary Statement will
be interpreted and applied consistently with such intent.
Set forth below are designations of Classes of Certificates to the categories
used herein:
Accretion Directed Certificates.......................... None.
Accrual Certificates..................................... None.
Book-Entry Certificates.................................. All Classes of Certificates other than the Physical
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; until they have been the subject of an
ERISA-Qualifying Underwriting, the Class PO and
Class A-X Certificates; and Certificates of any
Class that ceases to satisfy the rating requirements
of the Underwriter's Exemption.
LIBOR Certificates....................................... None.
Non-Delay Certificates................................... None.
Notional Amount Certificates............................. Class A-X Certificates.
Offered Certificates..................................... All Classes of Certificates other than the Private
Certificates.
Physical Certificates.................................... Class A-X, Class PO, Class P and Class A-R
Certificates and the Private Certificates.
Planned Principal Classes................................ None.
Primary Planned Principal Classes........................ None.
Principal Only Certificates.............................. Class PO Certificates.
Private Certificates..................................... Class P, Class B-4, Class B-5 and Class B-6
Certificates.
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Rating Agencies.......................................... Fitch and S&P.
Regular Certificates..................................... All Classes of Certificates other than the Class A-R
Certificates.
Residual Certificate..................................... Class A-R Certificates.
Scheduled Principal Classes.............................. None.
Secondary Planned Principal Classes...................... None.
Senior Certificates...................................... Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class A-3, Class A-4, Class
A-5, Class A-6, Class A-7, Class A-8, Class A-9,
Class A-10, Class A-11, Class A-X, Class PO, Class
A-X and Class A-R Certificates.
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.
4
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: Not applicable.
Accretion Direction Rule: Not applicable.
Accrual Amount: Not applicable.
Accrual Certificates: Not applicable.
Accrual Termination Date: Not applicable.
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: Not applicable.
Advance: The payment required to be made by the Master 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 and net of any net proceeds in the case of any REO
Property) on the Mortgage Loans that were due during the related Due Period and
not received as of the close of business on the related Determination Date,
less the aggregate amount of any such delinquent payments that the Master
Servicer has determined would constitute a Nonrecoverable Advance if advanced.
Aggregate Subsequent Purchase Amount: With respect to any Subsequent
Transfer Date, the "Aggregate Subsequent Purchase Amount" identified in the
related Subsequent Transfer Agreement, which shall be an estimate of the
aggregate Stated Principal Balances of the Subsequent Mortgage Loans identified
in such Subsequent Transfer Agreement.
Aggregate Subsequent Transfer Amount: With respect to any Subsequent
Transfer Date, the aggregate Stated Principal Balances as of the related
Subsequent Cut-off Dates of the Subsequent Mortgage Loans conveyed on such
Subsequent Transfer Date, as listed on the revised Mortgage Loan Schedule
delivered pursuant to Section 2.01(f); provided, however, that such amount
shall not exceed the amount on deposit in the Pre-Funding Account.
Agreement: This Pooling and Servicing Agreement and all amendments and
supplements.
Allocable Share: As to any Distribution Date and any Mortgage Loan (i)
with respect to the Class A-X Certificates, (a) the ratio that the excess, if
any, of the Adjusted Net Mortgage Rate with
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respect to such Mortgage Loan over the Required Coupon bears to such
Adjusted Net Mortgage Rate or (b) if the Adjusted Net Mortgage Rate with
respect to such Mortgage Loan does not exceed the Required Coupon, zero; (ii)
with respect to the Class PO Certificates, zero and (iii) with respect to each
other Class of Certificates the product of (b) the lesser of (I) the ratio that
the Required Coupon bears to such Adjusted Net Mortgage Rate and (II) one,
multiplied by (b) the ratio that the amount calculated with respect to such
Distribution Date for such Class, 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 aggregate
amount calculated with respect to such Distribution Date for each such Class of
Certificates pursuant to clause (i) of the definition of Class Optimal Interest
Distribution Amount (without giving effect to any reduction of such amounts
pursuant to Section 4.02(d)).
Amount Available for Senior Principal: As to any Distribution Date,
the 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 Senior Certificates pursuant to
Section 4.02(a)(1)(ii).
Amount Held for Future Distribution: As to any Distribution Date, the
aggregate amount held in the Certificate Account at the close of business on
the related Determination Date on account of (i) Principal Prepayments and
Liquidation Proceeds received in the month of such Distribution Date and (ii)
all Scheduled Payments 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.
Available Funds: As to any Distribution Date, the sum of (a) the
aggregate amount held in the Certificate Account at the close of business on
the related Determination Date net of the Amount Held for Future Distribution
and net of amounts permitted to be withdrawn from the Certificate Account
pursuant to clauses (i) - (x), inclusive, of Section 3.09(a) and amounts
permitted to be withdrawn from the Distribution Account pursuant to clauses (i)
- (v), inclusive, of Section 3.09(b), (b) the amount of the related Advance,
(c) in connection with Defective Mortgage Loans, the aggregate of the Purchase
Prices and Substitution Adjustment Amounts deposited on the related
Distribution Account Deposit Date, (d) any amount deposited on the related
Distribution Account Deposit Date pursuant to Section 3.10, (e) for the
Distribution Dates during, and the Distribution Date immediately following the
end of, the Pre-Funding Period, any amounts withdrawn from the Capitalized
Interest Account in respect of the applicable Capitalized Interest Requirement
with respect to such Mortgage Loans, and (f) on the Distribution Date
immediately following the end of the Pre-Funding Period, any amounts remaining
in the Pre-Funding Account, excluding any reinvestment earnings. 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 the 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.
6
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
Master Servicer has notified the Trustee in writing that the Master 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 Master Servicer, in either case without giving effect to any Debt
Service Reduction or Deficient Valuation.
Bankruptcy Loss Coverage Amount: As of any Determination Date, 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 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.
Capitalized Interest Account: The separate Eligible Account designated
as such and created and maintained by the Trustee pursuant to Section 3.06(i)
hereof. The Capitalized Interest Account shall be treated as an "outside
reserve fund" under applicable Treasury regulations and shall not be part of
either REMIC. Except as provided in Section 3.06(i) hereof, any investment
earnings on the Capitalized Interest Account shall be treated as owned by the
Depositor and will be taxable to the Depositor.
Capitalized Interest Requirement: With respect to each Pre-Funding
Period Distribution Date the excess, if any, of (a) the sum of (1) the amount
calculated pursuant to clause (i) of the definition of Class Optimal Interest
Distribution Amount for each Class of Certificates, plus (2) the Trustee Fee
for such Distribution Date, over (b) with respect to each Mortgage Loan, (1)
1/12 of the product of the related Adjusted Mortgage Rate and the related
Stated Principal Balance as of the related Due Date (prior to giving effect to
any Scheduled Payment due on such Mortgage Loan on such Due Date) minus (2) any
related reductions required by Section 4.02(d) hereof. On the Closing Date, the
amount deposited in the Capitalized Interest Account shall be $516,545.71.
Certificate: Any one of the certificates issued by the Trust Fund and
executed by the Trustee in substantially the forms attached as exhibits.
Certificate Account: The separate Eligible Account or Accounts created
and maintained by the Master Servicer pursuant to Section 3.06(d) with a
depository institution in the name of the Master Servicer for the benefit of
the Trustee on behalf of Certificateholders and designated "IndyMac Bank,
F.S.B., in trust for the registered holders of Residential Asset Securitization
Trust 2002-A15, Mortgage Pass-Through Certificates, Series
2002-O."
Certificate Balance: With respect to any Certificate (other than the
Class A-X Certificates) at any date, 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 minus the sum of (i) all distributions
of
7
principal previously made with respect to that Certificate and (ii) all
Realized Losses allocated thereto and, in the case of any Subordinated
Certificates, all other reductions in Certificate Balance previously allocated
to that Certificate pursuant to Section 4.05.
Certificate Owner: With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of the Book-Entry Certificate.
Certificate Register: The register maintained pursuant to
Section 5.02.
Certificateholder or Holder: The person in whose name a Certificate is
registered in the Certificate Register, except that, solely for the purpose of
giving any consent pursuant to this Agreement, any Certificate registered in
the name of the Depositor or any affiliate of the Depositor is not Outstanding
and the Percentage Interest evidenced thereby shall not be taken into account
in determining whether the requisite amount of Percentage Interests necessary
to effect a consent has been obtained, 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.
Class: All Certificates bearing the same class designation as set
forth in the Preliminary Statement.
Class Certificate Balance: For any Class (other than the Class A-X
Certificates) 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 or Notional
Amount, as applicable, immediately prior to such Distribution Date, subject to
reduction pursuant to Section 4.02(d), and (ii) any Class Unpaid Interest
Amounts for such Class.
Class PO Deferred Amount: As to any Distribution Date, the aggregate
of the applicable PO Percentage of each Realized Loss, other than any Excess
Loss, on a Discount Mortgage Loan to be allocated to the Class PO Certificates
on such Distribution Date on or prior to the Senior Credit Support Depletion
Date or previously allocated to the Class PO Certificates and not yet paid to
the Holders of the Class PO Certificates.
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 of the Class Certificate Balances
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
8
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: November 26, 2002.
CMT Index: Not applicable.
Code: The Internal Revenue Code of 1986, including any successor or
amendatory provisions.
COFI: Not applicable.
COFI Certificates: Not applicable.
Collection Account: As defined in Section 3.06(c).
Compensating Interest: For any Distribution Date, 0.125% multiplied by
one-twelfth multiplied by the aggregate Stated Principal Balance of the
Mortgage Loans as of the first day of the prior month.
Co-op Shares: Shares issued by a Cooperative Corporation.
Cooperative Corporation: The entity that holds title (fee or an
acceptable leasehold estate) to the real property and improvements constituting
the Cooperative Property and that governs the Cooperative Property, which
Cooperative Corporation must qualify as a Cooperative Housing Corporation under
section 216 of the Code.
Cooperative Loan: Any Mortgage Loan secured by Co-op Shares and a
Proprietary Lease.
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: Mortgage Administration-IN0215
(IndyMac MBS, Inc., Residential Asset Securitization Trust 2002-A15, Mortgage
Pass-Through Certificates, Series 2002-O), and which is the address to which
notices to and correspondence with the Trustee should be directed.
Cut-off Date: In the case of any Initial Mortgage Loan, November 1,
2002, and in the case of any Subsequent Mortgage Loan, the later of (i)
December 1, 2002 and (ii) the origination date of such Mortgage Loan.
Cut-off Date Pool Principal Balance: $366,667,851.52.
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
9
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-1.
Delay Delivery Mortgage Loans: The Mortgage Loans identified on the
Mortgage Loan Schedule for which all or a portion of a related Mortgage File is
not delivered to the Trustee by the Closing Date or Subsequent Transfer Date,
as applicable. The Depositor shall deliver the Mortgage Files to the Trustee:
(A) for at least 70% of the Initial Mortgage Loans, not later than the
Closing Date and for 90% of the Subsequent Mortgage Loans, not later than the
related Subsequent Transfer Date, and
(B) for the remaining 30% of the Initial Mortgage Loans, not later
than five Business Days following the Closing Date and for the remaining 10% of
the Subsequent Mortgage Loans, not later than five Business Days following the
related Subsequent Transfer 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
Master 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.
10
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.
Discount Mortgage Loan: Any Mortgage Loan with an Adjusted Net
Mortgage Rate that is less than the Required Coupon.
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 Residential Asset
Securitization Trust 2002-A15, Mortgage Pass-Through Certificates, Series
2002-O." Funds in the Distribution Account shall be held in trust for the
Certificateholders for the uses and purposes set forth in this Agreement.
Distribution Account Deposit Date: As to any Distribution Date, 12:30
P.M. Pacific time on the Business Day preceding the Distribution Date.
Distribution Date: The 25th day of each calendar month after the
initial issuance of the Certificates, or if that day is not a Business Day, the
next Business Day, commencing in December 2002.
Due Date: For any Mortgage Loan, the first day of the month.
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.
Eligible Account: Any of
(i) an account maintained with a federal or state chartered depository
institution or trust company the short-term unsecured debt obligations of which
(or, in the case of a depository institution or trust company that is the
principal subsidiary of a holding company, the debt obligations of the holding
company, but only if ▇▇▇▇▇'▇ is not a Rating Agency) have the highest
short-term ratings of each Rating Agency at the time any amounts are held on
deposit therein, or
(ii) an account in a depository institution or trust company that is
insured by the FDIC or the SAIF (to the limits established by the FDIC or the
SAIF) and the uninsured deposits in which accounts are otherwise secured such
that, as evidenced by an Opinion of Counsel delivered to the Trustee and to
each Rating Agency, the Certificateholders have a claim on the funds in the
account or a perfected first priority security interest against any collateral
(which shall be limited to Permitted Investments) securing the funds in the
account that is superior to claims of any other depositors or creditors of the
depository institution or trust company in which the account is maintained, or
11
(iii) a trust account or accounts maintained with the trust department
of a federal or state chartered depository institution or trust company, acting
in its fiduciary capacity, or
(iv) any other account acceptable to each Rating Agency.
Eligible Accounts may bear interest, and may include, if otherwise qualified
under this definition, accounts maintained with the Trustee.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA-Qualifying Underwriting: A best efforts or firm commitment
underwriting or private placement that meets the requirements of the
Underwriter's Exemption.
ERISA-Restricted Certificate: As specified in the Preliminary
Statement.
Escrow Account: The Eligible Account or Accounts established and
maintained pursuant to Section 3.07(a).
Event of Default: As defined in Section 7.01.
Excess Loss: The amount of any (i) Fraud Loss realized after the Fraud
Loss Coverage Termination Date, (ii) Special Hazard Loss realized after the
Special Hazard Coverage Termination Date or (iii) Bankruptcy Loss 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 Master 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.
Expense Fees: The sum of the Servicing Fee and the Trustee Fee.
Expense Fee Rate: As to each Mortgage Loan, 0.257% per annum of the
Stated Principal Balance of each Mortgage Loan.
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 2002-O,
or any other address Fitch furnishes to the Depositor and the Master Servicer.
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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.
Fraud Loan: A Liquidated Mortgage Loan as to which a Fraud Loss has
occurred.
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.
Fraud Loss Coverage Amount: As of the Closing Date, $4,000,000.00,
subject to reduction from time to time, by the amount of Fraud Losses allocated
to the Certificates. In addition, on each anniversary of the Cut-off Date, the
Fraud Loss Coverage Amount will be reduced as follows: (a) on the first,
second, third, fourth and fifth anniversaries of the Cut-off Date, to an amount
equal to the lesser of (i) 1.00% of the then current Stated Principal Balance
of the Mortgage Loans in the case of the first, second and third anniversaries
and 0.50% of the current Stated Principal Balance of the Mortgage Loans in the
case of the fourth and fifth 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 sixth 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.
Gross Margin: 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: $100,000.
Initial Mortgage Loan: Such of the Mortgage Loans transferred and
assigned to the Trustee on the Closing Date pursuant to the provisions hereof,
as from time to time are held as a part of the Trust Fund (including any REO
Property), the Mortgage Loans so held being identified on the Mortgage Loan
Schedule as of the Closing Date, notwithstanding foreclosure or other
acquisition of title of the related Mortgaged Property.
Insurance Policy: For any Mortgage Loan included in the Trust Fund,
any insurance policy, including all riders and endorsements thereto in effect,
including any replacement policy or policies for any Insurance Policies.
Insurance Proceeds: Proceeds paid by an insurer pursuant to any
Insurance Policy, in each case other than any amount included in such Insurance
Proceeds in respect of Insured Expenses.
Insured Expenses: Expenses covered by an Insurance Policy or any other
insurance policy with respect to the Mortgage Loans.
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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 Settlement Rate: As defined in Section 4.08(a).
Last Scheduled Distribution Date: The Distribution Date in the month
immediately following the month of the latest scheduled maturity date for any
of the Mortgage Loans.
Latest Possible Maturity Date: The Distribution Date following the
third anniversary of the scheduled maturity date of the Mortgage Loan having
the latest scheduled maturity date as of the Cut-off Date.
Lender PMI Loans: Mortgage Loans with respect to which the lender
rather than the borrower acquired the primary mortgage guaranty insurance and
charged the related borrower an interest premium.
LIBOR: The London interbank offered rate for one month United States
dollar deposits calculated in the manner described in Section 4.08.
Liquidated Mortgage Loan: For any Distribution Date, a defaulted
Mortgage Loan (including any REO Property) that was liquidated in the calendar
month preceding the month of the Distribution Date and as to which the Master
Servicer has certified (in accordance with this Agreement) that it has received
all amounts it expects to receive in connection with the liquidation of the
Mortgage Loan, including the final disposition of an REO Property.
Liquidation Proceeds: Amounts, including Insurance Proceeds regardless
of when received, received in connection with the partial or complete
liquidation of defaulted Mortgage Loans, whether through trustee's sale,
foreclosure sale, or otherwise or amounts received in connection with any
condemnation or partial release of a Mortgaged Property, and any other proceeds
received in connection with an REO Property, less the sum of related
unreimbursed Servicing Fees, Servicing Advances, and Advances.
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.
Master Servicer: IndyMac Bank, F.S.B., a federal savings bank, and its
successors and assigns, in its capacity as master servicer under this
Agreement.
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Master Servicer Advance Date: As to any Distribution Date, 12:30 P.M.
Pacific time on the Business Day preceding the Distribution Date.
Modified Mortgage Loan: Any Mortgage Loan that the Master Servicer has
modified pursuant to Section 3.12.
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 Master 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 Loans: Such of the Mortgage Loans transferred and assigned to
the Trustee pursuant to this Agreement and any Subsequent Transfer 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, as amended to
reflect the addition of any Subsequent Mortgage Loans pursuant to the terms of
this Agreement and any Subsequent Transfer Agreement. The Mortgage Loan
Schedule shall be prepared by the Seller and shall set forth the following
information with respect to each Mortgage Loan:
(i) the loan number;
(ii) the Mortgagor's name and the street address of the
Mortgaged Property, including the zip code;
(iii) the maturity date;
(iv) the original principal balance;
(v) the Cut-off Date Principal Balance;
(vi) the first payment date of the Mortgage Loan;
(vii) the Scheduled Payment in effect as of the Cut-off
Date;
15
(viii) the Loan-to-Value Ratio at origination;
(ix) a code indicating whether the residential dwelling
at the time of origination was represented to be
owner-occupied;
(x) a code indicating whether the residential dwelling
is either (a) a detached single family dwelling, (b)
a dwelling in a PUD, (c) a condominium unit, (d) a
two- to four-unit residential property, or (e) a
Cooperative Unit;
(xi) the Mortgage Rate;
(xii) the purpose for the Mortgage Loan;
(xiii) the type of documentation program pursuant to which
the Mortgage Loan was originated;
(xiv) a code indicating whether the Mortgage Loan is a
borrower-paid mortgage insurance loan;
(xv) the Servicing Fee Rate;
(xvi) a code indicating whether the Mortgage Loan is a
Lender PMI Loan;
(xvii) the coverage amount of any mortgage insurance;
(xviii) with respect to the Lender PMI Loans, the interest
premium charged by the lender; and
(xix) a code indicating whether the Mortgage Loan is a
Delay Delivery Mortgage Loan.
The schedule shall also set forth the total of the amounts described under (v)
above for all of the Mortgage Loans.
Mortgage Note: The original executed note or other evidence of the
indebtedness of a Mortgagor under a Mortgage Loan.
Mortgage Rate: The annual rate of interest borne by a Mortgage Note
from time to time.
Mortgaged Property: The underlying property securing a Mortgage Loan,
which, with respect to a Cooperative Loan, is the related Co-op Shares and
Proprietary Lease.
Mortgagor: The obligors on a Mortgage Note.
National Cost of Funds Index: The National Monthly Median Cost of
Funds Ratio to SAIF-Insured Institutions published by the Office of Thrift
Supervision.
Net Prepayment Interest Shortfall: As to any Distribution Date, the
amount by which the aggregate of Prepayment Interest Shortfalls during the
related Prepayment Period exceeds an amount equal to the Compensating Interest
for such Distribution Date.
Non-Delay Certificates: As specified in the Preliminary Statement.
16
Non-Discount Mortgage Loan: Any Mortgage Loan with an Adjusted Net
Mortgage Rate that is greater than or equal to the Required Coupon.
Non-PO Formula Principal Amount: As to any Distribution Date, the sum
of the applicable Non-PO Percentage of (a) all monthly payments of principal
due on each Mortgage Loan on the related Distribution Date, (b) the principal
portion of the purchase price of each Mortgage Loan that was repurchased by the
Seller pursuant to this Agreement as of such Distribution Date, (c) the
Substitution Adjustment Amount in connection with any Deleted Mortgage Loan
received with respect to such Distribution Date, (d) any Insurance Proceeds or
Liquidation Proceeds allocable to recoveries of principal of Mortgage Loans
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 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 received, and (g) on the last
Pre-Funding Period Distribution Date the amounts remaining in the Pre-Funding
Account other than the Remaining PO Pre-Funding Amount.
Non-PO Percentage: As to any Discount Mortgage Loan, a fraction
(expressed as a percentage) the numerator of which is the Adjusted Net Mortgage
Rate of such Discount Loan and the denominator of which is the Required Coupon.
As to any Non-Discount Mortgage Loan, 100%.
Nonrecoverable Advance: Any portion of an Advance previously made or
proposed to be made by the Master Servicer, that, in the good faith judgment of
the Master Servicer, will not be ultimately recoverable by the Master Servicer
from the related Mortgagor, related Liquidation Proceeds or otherwise.
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 A-X Certificates and any
Distribution Date, an amount equal to the aggregate of the Stated Principal
Balances of the Non-Discount Mortgage Loans as of the first day of the related
Due Period. As of the Closing Date, the Notional Amount of the Class A-X
Certificates is $355,236,411.25.
Notional Amount Certificates: 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 Master Servicer, or (ii) if provided for in
this Agreement, signed by a Servicing Officer, as the case may be, and
delivered to the Depositor and the Trustee as required by this Agreement.
Opinion of Counsel: For the interpretation or application of the REMIC
Provisions, a written opinion of counsel who (i) is in fact independent of the
Depositor and the Master Servicer, (ii) does not have any direct financial
interest in the Depositor or the Master Servicer or in any affiliate of either,
and (iii) is not connected with the Depositor or the Master Servicer as an
officer, employee, promoter, underwriter, trustee, partner, director, or person
performing similar functions. Otherwise, a written
17
opinion of counsel who may be counsel for the Depositor or the Master
Servicer, including in-house counsel, reasonably acceptable to the Trustee.
Original Applicable Credit Support Percentage: With respect to each of
the following Classes of Subordinated Certificates, the corresponding
percentage described below, as of the Closing Date:
Class B-1 6.00%
Class B-2 2.30%
Class B-3 1.50%
Class B-4 0.85%
Class B-5 0.55%
Class B-6 0.30%
Original Mortgage Loan: The Mortgage Loan refinanced in connection
with the origination of a Refinance Loan.
Original Subordinated Principal Balance: The aggregate of the Class
Certificate Balances 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 and that did not become a
Liquidated Mortgage Loan before the Due Date.
Ownership Interest: As to any Residual Certificate, any ownership
interest in the Certificate including any interest in the Certificate as its
Holder and any other interest therein, whether direct or indirect, legal or
beneficial.
Pass-Through 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.
Permitted Investments: At any time, any of the following:
18
(i) obligations of the United States or any agency thereof backed by
the full faith and credit of the United States;
(ii) general obligations of or obligations guaranteed by any state of
the United States or the District of Columbia receiving the highest long-term
debt rating of each Rating Agency, or any lower rating that will not result in
the downgrading or withdrawal of the ratings then assigned to the Certificates
by the Rating Agencies, as evidenced by a signed writing delivered by each
Rating Agency;
(iii) commercial or finance company paper that is then receiving the
highest commercial or finance company paper rating of each Rating Agency, or
any lower rating that will not result in the downgrading or withdrawal of the
ratings then assigned to the Certificates by the Rating Agencies , as evidenced
by a signed writing delivered by each Rating Agency;
(iv) certificates of deposit, demand or time deposits, or bankers'
acceptances issued by any depository institution or trust company incorporated
under the laws of the United States or of any state thereof and subject to
supervision and examination by federal or state banking authorities, provided
that the commercial paper or long-term unsecured debt obligations of the
depository institution or trust company (or in the case of the principal
depository institution in a holding company system, the commercial paper or
long-term unsecured debt obligations of the holding company, but only if
▇▇▇▇▇'▇ is not a Rating Agency) are then rated one of the two highest long-term
and the highest short-term ratings of each Rating Agency for the securities, or
any lower rating that will not result in the downgrading or withdrawal of the
ratings then assigned to the Certificates by the Rating Agencies, as evidenced
by a signed writing delivered by each Rating Agency;
(v) demand or time deposits or certificates of deposit issued by any
bank or trust company or savings institution to the extent that the deposits
are fully insured by the FDIC;
(vi) guaranteed reinvestment agreements issued by any bank, insurance
company, or other corporation acceptable to the Rating Agencies at the time of
the issuance of the agreements, as evidenced by a signed writing delivered by
each Rating Agency;
(vii) repurchase obligations with respect to any security described in
clauses (i) and (ii) above, in either case entered into with a depository
institution or trust company (acting as principal) described in clause (iv)
above;
(viii) securities (other than stripped bonds, stripped coupons, or
instruments sold at a purchase price in excess of 115% of their face amount)
bearing interest or sold at a discount issued by any corporation incorporated
under the laws of the United States or any state thereof that, at the time of
the investment, have one of the two highest ratings of each Rating Agency
(except if the Rating Agency is Moody's the rating shall be the highest
commercial paper rating of Moody's for the securities), or any lower rating
that will not result in the downgrading or withdrawal of the ratings then
assigned to the Certificates by the Rating Agencies, as evidenced by a signed
writing delivered by each Rating Agency;
(ix) units of a taxable money-market portfolio having the highest
rating assigned by each Rating Agency (except (i) if Fitch is a Rating Agency
and has not rated the portfolio, the highest rating assigned by Moody's and
(ii) if S&P is a Rating Agency, "AAAm" or "AAAM-G" by S&P) and restricted to
obligations issued or guaranteed by the United States of 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
19
(x) any other investments bearing interest or sold at a discount
acceptable to each Rating Agency that will not result in the downgrading or
withdrawal of the ratings then assigned to the Certificates by the Rating
Agencies, as evidenced by a signed writing delivered by each Rating Agency.
No Permitted Investment may evidence the right to receive interest
only payments with respect to the obligations underlying the instrument. Any
Permitted Investment shall be relatively risk free and no options or voting
rights shall be exercised with respect to any Permitted Investment. No
Permitted Investment may be sold or disposed of before its maturity.
Permitted Transferee: Any person other than
(i) the United States, any State or political subdivision thereof, or
any agency or instrumentality of any of the foregoing,
(ii) a foreign government, International Organization, or any agency
or instrumentality of either of the foregoing,
(iii) an organization (except certain farmers' cooperatives described
in section 521 of the Code) that is exempt from tax imposed by Chapter 1 of the
Code (including the tax imposed by section 511 of the Code on unrelated
business taxable income) on any excess inclusions (as defined in section
860E(c)(1) of the Code) with respect to any Residual Certificate,
(iv) rural electric and telephone cooperatives described in section
1381(a)(2)(C) of the Code,
(v) an "electing large partnership" as defined in section 775 of the
Code,
(vi) a Person that is not a U.S. Person, and
(vii) any other Person so designated by the Depositor based on an
Opinion of Counsel that the Transfer of an Ownership Interest in a Residual
Certificate to the Person may cause either 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 Principal Classes: As specified in the Preliminary Statement.
PO Formula Principal Amount: As to any Distribution Date and the Class
PO Certificates, the sum of the applicable PO Percentage of (a) the principal
portion of each Scheduled Payment (without giving effect, prior to the
Bankruptcy Coverage Termination Date, to any reductions thereof caused by any
Debt Service Reductions or Deficient Valuations) due on each Mortgage Loan on
the related Due Date, (b) the Stated Principal Balance of each Mortgage Loan
that was repurchased by the Seller or the Master Servicer pursuant to this
Agreement as of such Distribution Date, (c) the Substitution Adjustment Amount
in connection with any Deleted Mortgage Loan received with respect to such
Distribution Date, (d) any Insurance Proceeds or Liquidation Proceeds allocable
to recoveries of principal of Mortgage Loans 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 that became a
Liquidated Mortgage Loan during the month preceding the calendar month of such
Distribution Date, the amount of
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Liquidation Proceeds allocable to principal received with respect to
such Mortgage Loan during the month preceding the month of such Distribution
Date, (f) all Principal Prepayments with respect to the Mortgage Loans received
during the related Prepayment Period, and (g) on the last Pre-Funding Period
Distribution Date, the Remaining PO Pre-Funding Amount.
PO Percentage: As to any Discount Mortgage Loan, a fraction (expressed
as a percentage) the numerator of which is the excess of the Required Coupon
over the Adjusted Net Mortgage Rate of such Discount Mortgage Loan and the
denominator of which is such Required Coupon. As to any Non-Discount Mortgage
Loan, 0%.
Pool Stated Principal Balance: As to any Distribution Date, the
aggregate of the Stated Principal Balances of the Mortgage Loans that were
Outstanding Mortgage Loans on the Due Date in the month preceding the month of
such Distribution Date.
Pre-Funding Amount: The amount deposited in the Pre-Funding Account on
the Closing Date, which shall equal $33,332,148.48, to purchase Subsequent
Mortgage Loans.
Pre-Funding Account: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 3.06(h) 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 MBS, Inc.,
Mortgage Pass-Through Certificates, Series 2002-O". Funds in the Pre-Funding
Account shall be held in trust for the Holders of the Certificates for the uses
and purposes set forth in this Agreement and shall not be a part of any REMIC
created hereunder; provided, however, that any investment income earned from
Permitted Investments made with funds in the Pre-Funding Account shall be for
the account of the Depositor.
Pre-Funding Period: The period from the Closing Date until the earlier
of (i) the date on which the amount on deposit in the Pre-Funding Account is
equal to or less than $100,000 and (ii) the close of business on December 30,
2002.
Pre-Funding Period Distribution Date: Each Distribution Date during
the Pre-Funding Period and, if the Pre-Funding Period ends after the
Distribution Date in a month, the immediately succeeding Distribution Date.
Prepayment Charge: As to a Mortgage Loan, any charge paid by a
Mortgagor in connection with certain partial prepayments and all prepayments in
full made within the related Prepayment Charge Period, the Prepayment Charges
with respect to each applicable Mortgage Loan so held by the Trust being
identified in the Prepayment Charge Schedule.
Prepayment Charge Period: As to any Mortgage Loan, the period of time
during which a Prepayment Charge may be imposed.
Prepayment Charge Schedule: As of any date, the list of Prepayment
Charges included in the Trust Fund on that date, (including the prepayment
charge summary attached thereto). The Prepayment Charge Schedule shall set
forth the following information with respect to each Prepayment Charge:
o the Mortgage Loan account number;
o a code indicating the type of Prepayment Charge;
o the state of origination in which the related Mortgage Property
is located;
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o the first date on which a monthly payment is or was due under the
related Mortgage Note;
o the term of the Prepayment Charge;
o the original principal amount of the related Mortgage Loan; and
o the Cut-off Date Principal Balance of the related Mortgage Loan.
The Prepayment Charge Schedule shall be amended from time to time by
the Master Servicer in accordance with this Agreement.
Prepayment Interest Shortfall: As to any Distribution Date, Mortgage
Loan, and Principal Prepayment, the excess of one month's interest at the
related Mortgage Rate (net of the Servicing Fee Rate) on the Principal
Prepayment over the amount of interest paid in connection with the Principal
Prepayment.
Prepayment Period: As to any Distribution Date, the prior calendar
month.
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 Only Certificates: As specified in the Preliminary
Statement.
Principal Prepayment: Any payment of principal by a Mortgagor on a
Mortgage Loan (including the Purchase Price of any Modified Mortgage Loan
purchased pursuant to Section 3.12) that is received in advance of its
scheduled Due Date and is not accompanied by an amount representing scheduled
interest due on any date in any month after the month of prepayment. The Master
Servicer shall apply partial Principal Prepayments in accordance with the
related Mortgage Note.
Principal Prepayment in Full: Any Principal Prepayment made by a
Mortgagor of the entire principal balance of a Mortgage Loan.
Priority Amount: For any Distribution Date, the sum of (i) the product
of (A) the Scheduled Principal Distribution Amount, (B) the Priority Percentage
and (C) the Shift Percentage and (ii) the product of (A) the Unscheduled
Principal Distribution Amount, (B) the Shift Percentage and (C) the Priority
Percentage.
Priority Percentage: For any Distribution Date, the percentage
equivalent of a fraction, the numerator of which is the Class Certificate
Balance of the Class A-11 Certificates immediately prior to such Distribution
Date, and the denominator of which is equal to the aggregate Class Certificate
Balance of the Certificates, other than the Class PO Certificates.
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 of the Class Certificate
Balances of the Subordinated Certificates.
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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 November 22,
2002 relating to the Offered Certificates.
PUD: Planned Unit Development.
Purchase Price: For any Modified Mortgage Loan or any Mortgage Loan
required to be purchased by the Seller pursuant to Section 2.02 or 2.03 or
purchased by the Master Servicer pursuant to Section 3.12, the sum of
(i) 100% of the unpaid principal balance of the Mortgage Loan on the
date of the purchase, and
(ii) accrued interest on the Mortgage Loan at the applicable Mortgage
Rate (or at the applicable Adjusted Net Mortgage Rate if (x) the purchaser is
the Master Servicer or (y) if the purchaser is the Seller and the Seller is the
Master Servicer) from the date through which interest was last paid by the
Mortgagor to the Due Date in the month in which the Purchase Price is to be
distributed to Certificateholders.
If the Mortgage Loan is a Modified Mortgage Loan, the interest
component of the Purchase Price shall be computed (i) on the basis of the
applicable Adjusted Net Mortgage Rate before giving effect to the related
modification and (ii) from the date to which interest was last paid to the date
on which the Modified Mortgage Loan is assigned to the Master Servicer pursuant
to Section 3.12.
Qualified Insurer: A mortgage guaranty insurance company duly
qualified as such under the laws of the state of its principal place of
business and each state having jurisdiction over the insurer in connection with
the insurance policy issued by the insurer, duly authorized and licensed in
such states to transact a mortgage guaranty insurance business in such states
and to write the insurance provided by the insurance policy issued by it,
approved as a FNMA- or FHLMC-approved mortgage insurer or having a claims
paying ability rating of at least "AA" or equivalent rating by a nationally
recognized statistical rating organization. Any replacement insurer with
respect to a Mortgage Loan must have at least as high a claims paying ability
rating as the insurer it replaces had on the Closing Date.
Rating Agency: Each of the Rating Agencies specified in the
Preliminary Statement. If any of them or a successor is no longer in existence,
"Rating Agency" shall be the nationally recognized statistical rating
organization, or other comparable Person, designated by the Depositor, notice
of which designation shall be given to the Trustee. References to a given
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
23
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 which 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.
Recognition Agreement: For any Cooperative Loan, an agreement between
the Cooperative Corporation and the originator of the Mortgage Loan which
establishes the rights of the originator in the Cooperative Property.
Record Date: 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 existing Mortgage Loan.
Regular Certificates: As specified in the Preliminary Statement.
Relief Act: The Soldiers' and Sailors' Civil Relief Act of 1940, as
amended.
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, 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.
Remaining Non-PO Pre-Funding Amount: With respect to the last
Pre-Funding Period Distribution Date, the excess of the amount on deposit in
the Pre-Funding Account on such date over the Remaining PO Pre-Funding Amount.
Remaining PO Pre-Funding Amount: With respect to the last Pre-Funding
Period Distribution Date, the excess of $27,831.74 over the product of the
applicable PO Percentage of the Stated Principal Balance of each Subsequent
Mortgage Loan as of the related Cut-off Date.
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.
Request for Release: The Request for Release submitted by the Master
Servicer to the Trustee, substantially in the form of Exhibits M and N, as
appropriate.
Required Coupon: 6.00% per annum.
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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.
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 Ratings Group, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Mortgage Surveillance Monitoring,
or any other address that S&P furnishes to the Depositor and the Master
Servicer.
Scheduled 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.
Scheduled Principal Distribution Amount: For any Distribution Date,
the Non-PO Percentage of all amounts described in clauses (a) through (d) of
the definition of Non-PO Formula Principal Amount for such Distribution Date;
provided, however, that if a Bankruptcy Loss that is an Excess Loss is
sustained with respect to a Mortgage Loan that is not a Liquidated Mortgage
Loan, the Scheduled Principal Distribution Amount will be reduced on the
related Distribution Date by the applicable Non-PO Percentage of the principal
portion of such Bankruptcy Loss.
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 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.
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Senior Percentage: As to any Distribution Date, the percentage
equivalent of a fraction the numerator of which is the aggregate of the Class
Certificate Balances of the Senior Certificates (other than the Class PO
Certificates) immediately before the Distribution Date and the denominator of
which is the aggregate of the applicable Non-PO Percentage of the Stated
Principal Balances of each Mortgage Loan as of such date.
Senior Prepayment Percentage: As to any Distribution Date during the
five years beginning on the first Distribution Date, 100%. The Senior
Prepayment Percentage for any Distribution Date occurring on or after the fifth
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 Senior Percentage plus 70% of the Subordinated Percentage for
such Distribution Date; for any Distribution Date in the second year
thereafter, the Senior Percentage plus 60% of the Subordinated Percentage for
such Distribution Date; for any Distribution Date in the third year thereafter,
the Senior Percentage plus 40% of the Subordinated Percentage for such
Distribution Date; for any Distribution Date in the fourth year thereafter, the
Senior Percentage plus 20% of the Subordinated Percentage for such Distribution
Date; and for any Distribution Date thereafter, the Senior Percentage for such
Distribution Date (unless on any Distribution Date the Senior Percentage
exceeds the initial Senior Percentage, in which case the Senior Prepayment
Percentage for such Distribution Date will once again equal 100%).
Notwithstanding the foregoing, no decrease in the Senior Prepayment Percentage
will occur unless both of the Senior Step Down Conditions are satisfied.
Senior Principal Distribution Amount: As to any Distribution Date, the
sum of (i) the Senior Percentage of all amounts described in clauses (a)
through (d) of the definition of Non-PO Formula Principal Amount for 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 Senior Percentage of the applicable
Non-PO Percentage of the Stated Principal Balance of such Mortgage Loan and (y)
either (A) the Senior Prepayment Percentage of the applicable Non-PO 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 Senior Prepayment
Percentage of the applicable Non-PO Percentage of the amounts described in
clause (f) of the definition of Non-PO Formula Principal Amount for such
Distribution Date; and (iv) the Remaining Non-PO Pre-Funding Amount; provided,
however, that if a Bankruptcy Loss that is an Excess Loss is sustained with
respect to a Mortgage Loan 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 Non-PO Percentage of the principal
portion of such Bankruptcy Loss.
Senior Step Down Conditions: As to any Distribution Date: (i) the
outstanding 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 or in respect of which there
is real estate owned property), as a percentage of the aggregate of the Class
Certificate Balances of the Subordinated Certificates, does not equal or exceed
50% of the Original Subordinated Principal Balance, and (ii) cumulative
Realized Losses on the Mortgage Loans do not exceed: (a) for the Distribution
Date on the fifth anniversary of the first Distribution Date, 30% of the
Original Subordinated Principal Balance, (b) for the Distribution Date on the
sixth anniversary of the first Distribution Date, 35% of the Original
Subordinated Principal Balance, (c) for the Distribution Date on the seventh
anniversary of the first Distribution Date, 40% of the Original Subordinated
Principal Balance, (d) for the Distribution Date on the eighth anniversary of
the first Distribution Date, 45% of the Original Subordinated Principal
Balance, and (e) for the Distribution Date on the ninth anniversary of the
first Distribution Date, 50% of the Original Subordinated Principal Balance.
26
Servicing Account: The separate Eligible Account or Accounts created
and maintained pursuant to Section 3.06(b).
Servicing Advances: All customary, reasonable, and necessary "out of
pocket" costs and expenses incurred in the performance by the Master Servicer
of its servicing obligations, including the cost of
(a) the preservation, restoration, and protection of a
Mortgaged Property,
(b) expenses reimbursable to the Master Servicer pursuant to
Section 3.12 and any enforcement or judicial proceedings, including
foreclosures,
(c) the maintenance and liquidation of any REO Property, and
(d) compliance with the obligations under Section 3.10; and
(e) reasonable compensation to the Master Servicer or its
affiliates for acting as broker in connection with the sale of
foreclosed Mortgaged Properties and for performing certain default
management and other similar services (including appraisal services)
in connection with the servicing of defaulted Mortgage Loans. For
purposes of 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 Fee: As to each Mortgage Loan and any Distribution Date, one
month's interest at the applicable Servicing Fee Rate on the Stated Principal
Balance of the Mortgage Loan, or, whenever a payment of interest accompanies a
Principal Prepayment in Full made by the Mortgagor, interest at the Servicing
Fee Rate on the Stated Principal Balance of the Mortgage Loan for the period
covered by the payment of interest, subject to reduction as provided in Section
3.15.
Servicing Fee Rate: For any Mortgage Loan, 0.25% per annum.
Servicing Officer: Any officer of the Master Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name and facsimile signature appear on a list of servicing officers furnished
to the Trustee by the Master Servicer on the Closing Date pursuant to this
Agreement, as the list may from time to time be amended.
Servicing Standard: That degree of skill and care exercised by the
Master Servicer with respect to mortgage loans comparable to the Mortgage Loans
serviced by the Master Servicer for itself or others.
Shift Percentage: For any Distribution Date occurring during the five
years beginning on the first Distribution Date, 0%. For any Distribution Date
occurring on or after the fifth anniversary of the first Distribution Date as
follows: for any Distribution Date in the first year thereafter, 30%; for any
Distribution Date in the second year thereafter, 40%; for any Distribution Date
in the third year thereafter, 60%; for any Distribution Date in the fourth year
thereafter, 80%; and for any Distribution Date thereafter, 100%.
Special Hazard Coverage Termination Date: The point in time at which
the Special Hazard Loss Coverage Amount is reduced to zero.
27
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 Master Servicer or any of their agents or employees
(without regard to any portion of the loss not covered by any errors
and omissions policy);
(c) errors in design, faulty workmanship or faulty materials,
unless the collapse of the property or a part thereof ensues and then
only for the ensuing loss;
(d) nuclear or chemical reaction or nuclear radiation or
radioactive or chemical contamination, all whether controlled or
uncontrolled, and whether such loss be direct or indirect, proximate
or remote or be in whole or in part caused by, contributed to or
aggravated by a peril covered by the definition of the term "Special
Hazard Loss";
(e) hostile or warlike action in time of peace and war,
including action in hindering, combating or defending against an
actual, impending or expected attack:
1. by any government or sovereign power, de jure or
de facto, or by any authority maintaining or using military,
naval or air forces; or
2. by military, naval or air forces; or
3. by an agent of any such government, power,
authority or forces;
(f) any weapon of war employing nuclear fission, fusion or
other radioactive force, whether in time of peace or war; or
(g) insurrection, rebellion, revolution, civil war, usurped
power or action taken by governmental authority in hindering,
combating or defending against such an occurrence, seizure or
destruction under quarantine or customs regulations, confiscation by
order of any government or public authority, or risks of contraband or
illegal transportation or trade.
Special Hazard Loss Coverage Amount: With respect to the first
Distribution Date, $3,670,377. 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.
28
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 any previous partial Principal
Prepayments and Liquidation Proceeds allocable to principal (other than with
respect to any Liquidated Mortgage Loan) and to the payment of principal due on
such Due Date and irrespective of any delinquency in payment by the related
Mortgagor.
Subordinated Certificates: As specified in the Preliminary Statement.
Subordinated Percentage: As to any Distribution Date, 100% minus the
Senior Percentage for such Distribution Date.
Subordinated Prepayment Percentage: As to any Distribution Date, 100%
minus the Senior Prepayment Percentage for such Distribution Date.
Subordinated Principal Distribution Amount: As to any Distribution
Date and the Subordinated Certificates, the sum of the following: (i) the
Subordinated Percentage of the applicable Non-PO Percentage of all amounts
described in clauses (a) through (d) of the definition of Non-PO Formula
Principal Amount with respect to 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 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, up to the Subordinated Percentage of the
applicable Non-PO Percentage of the Stated Principal Balance of such Mortgage
Loan, and (iii) the Subordinated Prepayment Percentage of the amounts described
in clause (f) of the definition of Non-PO Formula Principal Amount with respect
to such Distribution Date, reduced by the amount of any payments in respect of
Class PO Deferred Amounts for such Distribution Date.
Subsequent Mortgage Loan: Any Mortgage Loan, other than an Initial
Mortgage Loan, conveyed to the Trust Fund pursuant to Section 2.01 hereof and
to a Subsequent Transfer Agreement, which Mortgage Loan shall be listed on the
revised Mortgage Loan Schedule delivered pursuant to this Agreement and on
Schedule A to such Subsequent Transfer Agreement. When used with respect to a
single Subsequent Transfer Date, Subsequent Mortgage Loan shall mean a
Subsequent Mortgage Loan conveyed to the Trust Fund on that Subsequent Transfer
Date.
Subsequent Transfer Agreement: A Subsequent Transfer Agreement
substantially in the form of Exhibit R hereto, executed and delivered by the
Seller, the Master Servicer, the Depositor and the Trustee as provided in
Section 2.01 hereof.
Subsequent Transfer Date: For any Subsequent Transfer Agreement, the
date on which the related Subsequent Mortgage Loans are transferred to the
Trust Fund pursuant to such Subsequent Trust Agreement.
Subservicer: As defined in Section 3.02(a).
Substitute Mortgage Loan: A Mortgage Loan substituted by the Seller
for a Deleted Mortgage Loan that must, on the date of substitution, as
confirmed in a Request for Release, substantially in the form of Exhibit M,
29
(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 Loan and not more than 1% per
annum higher than the Deleted Mortgage Loan;
(iii) have a Loan-to-Value Ratio no higher than that of the Deleted
Mortgage Loan;
(iv) have a remaining term to maturity no greater than (and not more
than one year less than) that of the Deleted Mortgage Loan;
(v) not be a Cooperative Loan unless the Deleted Mortgage Loan was a
Cooperative Loan; and
(vi) comply with each representation and warranty in Section 2.03.
Substitution Adjustment Amount: As defined in Section 2.03.
Targeted Principal Classes: As specified in the Preliminary Statement.
Tax Matters Person: The person designated as "tax matters person" in
the manner provided under Treasury regulationss. 1.860F-4(d) and temporary
Treasury regulationss. 301.6231(a)(7)-1T. Initially, the Tax Matters Person
shall be the Trustee.
Tax Matters Person Certificate: The Class A-R Certificate with a
Denomination of $0.05.
Transfer: Any direct or indirect transfer or sale of any Ownership
Interest in a Residual Certificate.
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, the
Pre-Funding Account and the Capitalized Interest Account and all amounts
deposited therein pursuant to this Agreement (including amounts received from
the Seller on the Closing Date that will be deposited by the Trustee in the
Certificate Account pursuant to Section 2.01);
(iii) property that secured a Mortgage Loan and has been acquired by
foreclosure, deed-in-lieu of foreclosure, or otherwise;
(iv) the right to collect any amounts under any mortgage insurance
policies covering any Mortgage Loan and any collections received under any
mortgage insurance policies covering any Mortgage Loan; and
(v) all proceeds of the conversion, voluntary or involuntary, of any
of the foregoing.
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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 sum of (a) the Stated Principal Balance of
the Mortgage Loans immediately prior to such Distribution Date and (b) any
amounts remaining in the Pre-Funding Account (excluding any investment earnings
thereon) with respect to such Distribution Date.
Trustee Fee Rate: 0.007% 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.
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
Unscheduled Principal Distribution Amount: For any Distribution Date,
the applicable Non-PO Percentage of the sum of the amounts described in clauses
(e) and (f) of the definition of Non-PO Formula Principal Amount for such
Distribution Date.
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.
Unused Pre-Funding Amount: The Pre-Funding Amounts immediately after
the end of the Pre-Funding Period.
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Voting Rights: The portion of the voting rights of all of the
Certificates that is allocated to any Certificate. As of any date of
determination, (a) 1% of all Voting Rights shall be allocated to each Class of
Notional Amount Certificates (the Voting Rights to be allocated among the
holders of Certificates of each Class in accordance with their respective
Percentage Interests) and (b) the remaining Voting Rights shall be allocated
among Holders of the remaining Classes of Offered Certificates (other than the
Class A-R Certificates) in proportion to the Certificate Balances of the
respective Certificates on the date. The Class A-R Certificates shall have no
voting rights.
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
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accordance with generally accepted accounting principles. To the
extent that the definitions of accounting terms in this Agreement are
inconsistent with their meanings under generally accepted accounting
principles, the definitions contained in this Agreement shall control.
Capitalized terms used in this Agreement without definition that are defined in
the Uniform Commercial Code are used in this Agreement as defined in the
Uniform Commercial Code.
(g) In the computation of a period of time from a specified date to a later
specified date or an open-ended period, the words "from" and "beginning" mean
"from and including," the word "after" means "from but excluding," the words
"to" and "until" mean "to but excluding," and the word "through" means "to and
including." Likewise, in setting deadlines or other periods, "by" means "by."
The words "preceding," "following," and words of similar import, mean
immediately preceding or following. References to a month or a year refer to
calendar months and calendar years.
(h) Any reference to the enforceability of any agreement against a party means
that it is enforceable, subject as to enforcement against the party, to
applicable bankruptcy, insolvency, reorganization, and other similar laws of
general applicability relating to or affecting creditors' rights and to general
equity principles.
33
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 Initial Mortgage Loan listed in the
Mortgage Loan Schedule (except that, in the case of Initial 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 Initial Mortgage Loan that does not have a first
payment date on or before the Due Date in the month of the first Distribution
Date, or any Subsequent Mortgage Loan that does not have a first payment date
on or before the Due Date in the month after the related Subsequent Transfer
Date, the Seller shall deposit into the Distribution Account on or before the
first Distribution Account Deposit Date an amount equal to one month's interest
at the related Adjusted Net Mortgage Rate on the Cut-off Date Principal Balance
of such Mortgage Loan. If the Seller shall fail to deposit such amount by the
first Distribution Account Deposit Date, the Trustee shall deposit such amount.
Also on the Closing Date the Depositor shall deposit $200 into the Certificate
Account.
(b) The Depositor, concurrently with the execution and delivery of
this Agreement, hereby transfers to the Trustee for the benefit of the
Certificateholders, without recourse, all the interest of the Depositor in the
Trust Fund, together with the Depositor's right to require the Seller to cure
any breach of a representation or warranty made in this Agreement by the Seller
or to repurchase or substitute for any affected Mortgage Loan in accordance
with this Agreement.
(c) In connection with the transfer and assignment of each Initial
Mortgage Loan, the Depositor has delivered (or, in the case of the Delay
Delivery Mortgage Loans, will deliver to the Trustee within the time periods
specified in the definition of Delay Delivery Mortgage Loans), and, in
connection with the transfer and assignment of each Subsequent Mortgage Loan,
will deliver to the Trustee for the benefit of the Certificateholders the
following documents or instruments with respect to each Mortgage Loan so
assigned:
(i) The original Mortgage Note, endorsed by manual or facsimile
signature in blank in the following form: "Pay to the order of
without recourse," with all intervening endorsements showing a
complete chain of endorsement from the originator to the Person
endorsing the Mortgage Note (each endorsement being sufficient to
transfer all interest of the party so endorsing, as noteholder or
assignee thereof, in that Mortgage Note) or a lost note affidavit for
any Lost Mortgage Note from the Seller stating that the original
Mortgage Note was lost or destroyed, together with a copy of the
Mortgage Note.
(ii) Except as provided below, the original recorded Mortgage or
a copy of the Mortgage certified by the Seller (or, in the case of a
Mortgage for which the related Mortgaged Property is located in the
Commonwealth of Puerto Rico, a true copy of the Mortgage certified as
such by the applicable notary) as being a true and complete copy of
the Mortgage.
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(iii) A duly executed assignment of the Mortgage (which may be
included in a blanket assignment or assignments), together with,
except as provided below, all interim recorded assignments of the
mortgage (each assignment, when duly and validly completed, to be in
recordable form and sufficient to effect the assignment of and
transfer to its assignee of the Mortgage to which the assignment
relates). If the related Mortgage has not been returned from the
applicable public recording office, the assignment of the Mortgage
may exclude the information to be provided by the recording office.
The assignment of Mortgage need not be delivered in the case of a
Mortgage for which the related Mortgage Property is located in the
Commonwealth of Puerto Rico.
(iv) The original or copies of each assumption, modification,
written assurance, or substitution agreement.
(v) Except as provided below, the original or duplicate original
lender's title policy and all its riders.
(vi) The originals of the following documents for each
Cooperative Loan:
(A) the Co-op Shares, together with a stock power in blank;
(B) the executed Security Agreement;
(C) the executed Proprietary Lease;
(D) the executed Recognition Agreement;
(E) the executed UCC-1 financing statement that has been
filed in all 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 statements required by state law, evidencing a
complete and unbroken line from the mortgagee to the
Trustee with evidence of recording thereon (or
in a form suitable for recordation). If in connection
with any Mortgage Loan the Depositor cannot deliver
(a) the original recorded Mortgage,
(b) all interim recorded assignments, or
(c) the lender's title policy (together
with all its riders)
satisfying the requirements of clause (ii), (iii), or (v) above,
respectively, concurrently with the execution and delivery of this
Agreement (or any Subsequent Transfer Agreement, as applicable)
because any of them have not been returned from the applicable public
recording office in the case of clause (ii) or (iii) above, or because
the title policy has not been delivered to either the Master Servicer
or the Depositor by the applicable title insurer in the case of clause
(v) above, then the Depositor shall promptly deliver to the Trustee,
in the case of clause (ii) or (iii) above, the original Mortgage or
the interim assignment, as the case may be, with evidence of recording
indicated on it when it is received from the public recording office,
or a copy of it, certified, if appropriate, by the relevant recording
office and in the case of clause (v) alone, the original or a
35
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 Subsequent
Transfer Date, as applicable), or, in the case of clause (v) above, later than
120 days following the Closing Date (or Subsequent Transfer Date, as
applicable). If the Depositor is unable to deliver each Mortgage by that date
and each interim assignment because any documents have not been returned by the
appropriate recording office, or, in the case of each interim assignment,
because the related Mortgage has not been returned by the appropriate recording
office, the Depositor shall deliver the documents to the Trustee as promptly as
possible upon their receipt and, in any event, within 720 days following the
Closing Date (or Subsequent Transfer Date, as applicable).
The Depositor shall forward to the Trustee (a) from time to time
additional original documents evidencing an assumption or modification of a
Mortgage Loan and (b) any other documents required to be delivered by the
Depositor or the Master Servicer to the Trustee. If the original Mortgage is
not delivered and in connection with the payment in full of the related
Mortgage Loan the public recording office requires the presentation of a "lost
instruments affidavit and indemnity" or any equivalent document, because only a
copy of the Mortgage can be delivered with the instrument of satisfaction or
reconveyance, the Master Servicer shall execute and deliver the required
document to the public recording office. If a public recording office retains
the original recorded Mortgage or if a Mortgage is lost after recordation in a
public recording office, the Seller shall deliver to the Trustee a copy of the
Mortgage certified by the public recording office to be a true and complete
copy of the original recorded Mortgage.
As promptly as practicable after any transfer of a Mortgage Loan under
this Agreement (or Subsequent Transfer Agreement, as applicable), 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.
If any Mortgage Loans have been prepaid in full as of the Closing
Date, the Depositor, in lieu of delivering the above documents to the Trustee,
will deposit in the Certificate Account the portion of the prepayment that is
required to be deposited in the Certificate Account pursuant to Section 3.06.
Notwithstanding anything to the contrary in this Agreement, within
five Business Days after the Closing Date (in the case of Initial Mortgage
Loans), the Seller shall either
(x) deliver to the Trustee the Mortgage File as required
pursuant to this Section 2.01 for each Delay Delivery
Mortgage Loan or
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(y) (A) repurchase the Delay Delivery Mortgage Loan or (B)
substitute the Substitute Mortgage Loan for a Delay Delivery
Mortgage Loan, which repurchase or substitution shall be
accomplished in the manner and subject to the conditions in
Section 2.03 (treating each such Delay Delivery Mortgage Loan
as a Deleted Mortgage Loan for purposes of such Section
2.03);
provided, however, that if the Seller fails to deliver a Mortgage File for any
Delay Delivery Mortgage Loan within the period specified herein, the Seller
shall use its best reasonable efforts to effect a substitution, rather than a
repurchase of, such Deleted Mortgage Loan and provided further that the cure
period provided for in Section 2.02 or in Section 2.03 shall not apply to the
initial delivery of the Mortgage File for such Delay Delivery Mortgage Loan,
but rather the Seller shall have five (5) Business Days to cure such failure to
deliver. At the end of such period, the Trustee shall send a Delay Delivery
Certification for the Delay Delivery Mortgage Loans delivered during such
period in accordance with the provisions of Section 2.02.
(d) The Seller agrees to treat the transfer of the Mortgage Loans to
the Depositor as a sale for all tax, accounting, and regulatory purposes.
Section 2.02 Acceptance by the Trustee of the Mortgage Loans.
(a) The Trustee acknowledges receipt of the documents identified in
the Initial Certification in the form of Exhibit G and receipt of the
Pre-Funding Amounts, and declares that it holds and will hold such documents
and the other documents delivered to it constituting the Mortgage Files for the
Mortgage Loans, and that it holds or will hold such other assets as are
included in the Trust Fund, in trust for the exclusive use and benefit of all
present and future Certificateholders.
The Trustee acknowledges that it will maintain possession of the
related Mortgage Notes in the State of California, unless otherwise permitted
by the Rating Agencies. The Trustee agrees to execute and deliver on the
Closing Date to the Depositor, the Master Servicer and the Seller an Initial
Certification in the form of Exhibit G. Based on its review and examination,
and only as to the documents identified in such Initial Certification, the
Trustee acknowledges that such documents appear regular on their face and
relate to such Initial Mortgage Loans. The Trustee shall be under no duty or
obligation to inspect, review or examine said documents, instruments,
certificates or other papers to determine that the same are genuine,
enforceable or appropriate for the represented purpose or that they have
actually been recorded in the real estate records or that they are other than
what they purport to be on their face.
By the thirtieth day after the Closing Date (or if that day is not a
Business Day, the succeeding Business Day), the Trustee shall deliver to the
Depositor, the Master Servicer, and the Seller a Delay Delivery Certification
with respect to the Initial Mortgage Loans substantially in the form of Exhibit
G-1, with any applicable exceptions noted thereon.
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 Master 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
37
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 an Mortgage Loan pursuant to this
provision is required because of a delay in delivery of any documents by the
appropriate recording office, or there is a dispute between either the Master
Servicer or the Seller and the Trustee over the location or status of the
recorded document, then the substitution or purchase shall occur within 720
days from the Closing Date. In no other case may a substitution or purchase
occur more than 540 days from the Closing Date.
The Trustee shall deliver written notice to each Rating Agency within
270 days from the Closing Date indicating each Mortgage Loan (a) that has not
been returned by the appropriate recording office or (b) as to which there is a
dispute as to location or status of the Mortgage Loan. The notice shall be
delivered every 90 days thereafter until the related Mortgage Loan is returned
to the Trustee. Any substitution pursuant to (a) above or purchase pursuant to
(b) above shall not be effected before the delivery to the Trustee of the
Opinion of Counsel required by Section 2.05, and any substitution pursuant to
(a) above shall not be effected before the additional delivery to the Trustee
of a Request for Release substantially in the form of Exhibit N. No
substitution is permitted to be made in any calendar month after the
Determination Date for the month.
The Purchase Price for any Mortgage Loan shall be deposited by the
Seller in the Certificate Account by the Distribution Account Deposit Date for
the Distribution Date in the month following the month of repurchase and, upon
receipt of the deposit and certification with respect thereto in the form of
Exhibit O, the Trustee shall release the related Mortgage File to the Seller
and shall execute and deliver at the Seller's request any instruments of
transfer or assignment prepared by the Seller, in each case without recourse,
necessary to vest in the Seller, or a designee, the Trustee's interest in any
Mortgage Loan released pursuant hereto.
(b) The Trustee agrees to execute and deliver to the Depositor, the
Master Servicer and the Seller on the Subsequent Transfer Date an Initial
Certification in the form of Exhibit G acknowledging receipt of the documents
identified in such Initial Certification and declaring that it holds and will
hold such documents and the other documents delivered to it constituting the
Mortgage Files for the related Subsequent Mortgage Loans, and that it holds or
will hold such other assets as are included in the Trust Fund, in trust for the
exclusive use and benefit of all present and future Certificateholders. The
Trustee acknowledges that it will maintain possession of the related Mortgage
Notes in the State of California, unless otherwise permitted by the Rating
Agencies.
Based on its review and examination, and only as to the documents
identified in such Initial Certification, the Trustee acknowledges that such
documents appear regular on their face and relate to such Subsequent Mortgage
Loan. The Trustee shall be under no duty or obligation to inspect, review or
examine said documents, instruments, certificates or other papers to determine
that the same are genuine, enforceable or appropriate for the represented
purpose or that they have actually been recorded in the real estate records or
that they are other than what they purport to be on their face.
38
Not later than 90 days after the Subsequent Transfer Date, the Trustee
shall deliver to the Depositor, the Master Servicer, and the Seller a Final
Certification in the form of Exhibit H, with any applicable exceptions noted
thereon.
If, in the course of its review, the Trustee finds any document
constituting a part of a Subsequent Mortgage File that does not meet the
requirements of Section 2.01, the Trustee shall list such as an exception in
the Final Certification. The Trustee shall not make any determination as to
whether (i) any endorsement is sufficient to transfer all interest of the party
so endorsing, as Noteholder or assignee thereof, in that Mortgage Note or (ii)
any assignment is in recordable form or is sufficient to effect the assignment
of and transfer to the assignee thereof under the mortgage to which the
assignment relates. The Seller shall promptly correct the defect which
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 Subsequent Mortgage Loan a Substitute Mortgage Loan,
which substitution shall be accomplished pursuant to Section 2.03, or (b)
purchase the Subsequent Mortgage Loan from the Trustee within 90 days from the
date the Seller was notified of the defect in writing at the Purchase Price of
the Subsequent Mortgage Loan.
If the substitution or purchase of a Subsequent Mortgage Loan pursuant
to this provision is required because of a delay in delivery of any documents
by the appropriate recording office, or there is a dispute between either the
Master Servicer or the Seller and the Trustee over the location or status of
the recorded document, then the substitution or purchase shall occur within 720
days from the Subsequent Transfer Date. In no other case shall the substitution
or purchase occur more than 540 days from the Subsequent Transfer Date. The
Trustee shall deliver written notice to each Rating Agency within 270 days from
the Subsequent Transfer Date indicating each Subsequent Mortgage Loan (a) that
has not been returned by the appropriate recording office or (b) as to which
there is a dispute as to location or status of the Mortgage Loan.
The notice shall be delivered every 90 days thereafter until the
related Subsequent Mortgage Loan is returned to the Trustee. Any substitution
pursuant to (a) above or purchase pursuant to (b) above shall not be effected
before the delivery to the Trustee of the Opinion of Counsel required by
Section 2.05, and any substitution pursuant to (a) above shall not be effected
before the additional delivery to the Trustee of a Request for Release
substantially in the form of Exhibit N. No substitution is permitted to be made
in any calendar month after the Determination Date for the month. The Purchase
Price for any Subsequent Mortgage Loan shall be deposited by the Seller in the
Certificate Account by the Distribution Account Deposit Date for the
Distribution Date in the month following the month of repurchase and, upon
receipt of the deposit and certification with respect thereto in the form of
Exhibit N, the Trustee shall release the related Mortgage File to the Seller
and shall execute and deliver at the Seller's request any instruments of
transfer or assignment prepared by the Seller, in each case without recourse,
necessary to vest in the Seller, or a designee, the Trustee's interest in any
Subsequent Mortgage Loan released pursuant hereto.
The Trustee shall retain possession and custody of each related
Mortgage File in accordance with and subject to the terms and conditions set
forth herein. The Master Servicer shall promptly deliver to the Trustee, upon
the execution or receipt thereof, the originals of any other documents or
instruments constituting the Subsequent Mortgage File that has come into the
possession of the Master Servicer from time to time.
The obligation of the Seller to substitute for or to purchase any
Subsequent Mortgage Loan that does not meet the requirements of Section 2.01
shall constitute the sole remedy respecting the defect available to the
Trustee, the Depositor, and any Certificateholder against the Seller.
39
Section 2.03 Representations, Warranties, and Covenants of the Seller
and the Master Servicer.
(a) IndyMac, in its capacities as Seller and Master 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, or if so specified therein, as of the Initial Cut-off Date with
respect to the Initial Mortgage Loans and as of the related Subsequent Cut-off
Date with respect to the Subsequent Mortgage Loans.
(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 Initial Cut-off Date with respect to the
Initial Mortgage Loans and as of the related Subsequent Cut-off Date with
respect to the Subsequent Mortgage Loans.
(c) Upon discovery by any of the parties hereto of a breach of a
representation or warranty made pursuant to Section 2.03(b) that materially and
adversely affects the interests of the Certificateholders in any Mortgage Loan,
the party discovering such breach shall give prompt notice thereof to the other
parties The Seller covenants that within 90 days of the earlier of its
discovery or its receipt of written notice from any party of a breach of any
representation or warranty made pursuant to Section 2.03(b) which materially
and adversely affects the interests of the Certificateholders in any Mortgage
Loan, it shall cure such breach in all material respects, and if such breach is
not so cured, shall, (i) if the 90-day period expires before the second
anniversary of the Closing Date, remove the Mortgage Loan (a "Deleted Mortgage
Loan") from the Trust Fund and substitute in its place a Substitute Mortgage
Loan, in accordance with this Section 2.03; or (ii) repurchase the affected
Mortgage Loan or Mortgage Loans from the Trustee at the Purchase Price in the
manner set forth below. Any substitution pursuant to (i) above shall not be
effected before the delivery to the Trustee of the Opinion of Counsel required
by Section 2.05 and a Request for Release substantially in the form of Exhibit
N, and the Mortgage File for any Substitute Mortgage Loan. Anything to the
contrary in this Agreement notwithstanding, Seller shall have no obligation to
cure any breach or to repurchase or substitute for the affected Mortgage Loan
if the substance of the breach constitutes fraud in the origination of the
affected Mortgage Loan and the Seller, at the time of origination and on the
Closing Date, did not have actual knowledge of the fraud. The Seller shall
promptly reimburse the Master Servicer and the Trustee for any expenses
reasonably incurred by the Master Servicer or the Trustee in respect of
enforcing the remedies for the breach.
With respect to any Substitute Mortgage Loan or Loans, the Seller
shall deliver to the Trustee for the benefit of the Certificateholders the
Mortgage Note, the Mortgage, the related assignment of the Mortgage, and such
other documents and agreements as are required by Section 2.01, with the
Mortgage Note endorsed and the Mortgage assigned as required by Section 2.01.
No substitution is permitted to be made in any calendar month after the
Determination Date for such month. Scheduled Payments due with respect to
Substitute Mortgage Loans in the month of substitution shall not be part of the
Trust Fund and will be retained by the Seller on the next succeeding
Distribution Date. For the month of substitution, distributions to
Certificateholders will include the monthly payment due on any Deleted Mortgage
Loan for such month and thereafter the Seller shall be entitled to retain all
amounts received in respect of such Deleted Mortgage Loan.
The Master Servicer shall amend the Mortgage Loan Schedule for the
benefit of the Certificateholders to reflect the removal of the Deleted
Mortgage Loan and the substitution of the Substitute Mortgage Loans and the
Master Servicer shall deliver the amended Mortgage Loan Schedule to the
Trustee. Upon the substitution, the Substitute Mortgage Loans shall be subject
to this Agreement in all respects, and the Seller shall be deemed to have made
with respect to the Substitute Mortgage Loans, as of the date of substitution,
the representations and warranties made pursuant to Section 2.03(b) with
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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 Master 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 Master 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, the delivery of the Opinion of Counsel required by Section 2.05 and
receipt of a Request for Release in the form of Exhibit N, the Trustee shall
release the related Mortgage File held for the benefit of the
Certificateholders to such Person, and the Trustee shall execute and deliver at
such Person's direction such instruments of transfer or assignment prepared by
such Person, in each case without recourse, as shall be necessary to transfer
title from the Trustee. The obligation under this Agreement of any Person to
cure, repurchase, or replace any Mortgage Loan as to which a breach has
occurred and is continuing shall constitute the sole remedy against the Person
respecting the breach available to Certificateholders, the Depositor, or the
Trustee on their behalf.
The representations and warranties made pursuant to this Section 2.03
shall survive delivery of the respective Mortgage Files to the Trustee for the
benefit of the Certificateholders.
Section 2.04 Representations and Warranties of the Depositor as to
the Mortgage Loans.
The Depositor represents and warrants to the Trustee with respect to
each Initial Mortgage Loan as of the date of this Agreement or such other date
set forth in this Agreement that as of the Closing Date (or, for a Subsequent
Mortgage Loan, the Subsequent Transfer Date), and following the transfer of the
Mortgage Loans to it by the Seller, the Depositor had good title to the
Mortgage Loans and the Mortgage Notes were subject to no offsets, defenses, or
counterclaims.
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.
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Section 2.05 Delivery of Opinion of Counsel in Connection with
Substitutions and Repurchases.
(a) Notwithstanding any contrary provision of this Agreement, no
substitution pursuant to Section 2.02 or 2.03 shall be made more than 90 days
after the Closing Date unless the Seller delivers to the Trustee an Opinion of
Counsel, which Opinion of Counsel shall not be at the expense of either the
Trustee or the Trust Fund, addressed to the Trustee, to the effect that such
substitution will not (i) result in the imposition of the tax on "prohibited
transactions" on the Trust Fund or contributions after the Startup Date, as
defined in sections 860F(a)(2) and 860G(d) of the Code, respectively or (ii)
cause the REMIC created hereunder to fail to qualify as a REMIC at any time
that any Certificates are outstanding.
(b) Upon discovery by the Depositor, the Seller, the Master Servicer
or the Trustee that any Mortgage Loan does not constitute a "qualified
mortgage" within the meaning of section 860G(a)(3) of the Code, the party
discovering such fact shall promptly (and in any event within five Business
Days of discovery) give written notice thereof to the other parties. In
connection therewith, the Trustee shall require the Seller, at the Seller's
option, to either (i) substitute, if the conditions in Section 2.03(c) with
respect to substitutions are satisfied, a Substitute Mortgage Loan for the
affected Mortgage Loan, or (ii) repurchase the affected Mortgage Loan within 90
days of such discovery in the same manner as it would a Mortgage Loan for a
breach of representation or warranty made pursuant to Section 2.03. The Trustee
shall reconvey to the Seller the Mortgage Loan to be released pursuant hereto
in the same manner, and on the same terms and conditions, as it would a
Mortgage Loan repurchased for breach of a representation or warranty contained
in Section 2.03.
Section 2.06 Execution and Delivery of Certificates.
The Trustee acknowledges the transfer and assignment to it of the
Trust Fund and, concurrently with such transfer and assignment, has executed
and delivered to or upon the order of the Depositor, the Certificates in
authorized denominations evidencing directly or indirectly the entire ownership
of the Trust Fund. The Trustee agrees to hold the Trust Fund 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.
The "tax matters person" with respect to the REMIC hereunder shall be
the Trustee and the Trustee shall hold the Tax Matters Person Certificate. The
REMIC's fiscal year shall be the calendar year.
Section 2.08 Subsequent Transfers.
(a) Upon five Business Days prior written notice to the Trustee, the
Depositor, the Seller, and the Trustee shall complete, execute, and deliver a
Subsequent Transfer Agreement. Subject to the satisfaction of the conditions in
Article II and paragraph (b) below and pursuant to the related Subsequent
Transfer Agreement, in consideration of the Trustee's delivery on each
Subsequent Transfer Date to the order of the Seller of all or a portion of the
balance of funds in the Pre-Funding Account (net of investment earnings), the
Seller shall on each Subsequent Transfer Date transfer to the Depositor,
without recourse, all the interest of the Seller in each Subsequent Mortgage
Loan listed on the Mortgage Loan Schedule delivered by the Seller on the
Subsequent Transfer Date, including all interest and principal received or
42
receivable by the Seller on or with respect to each Subsequent Mortgage Loan
after the related Cut-off Date and all interest and principal payments on each
Subsequent Mortgage Loan received before the related Cut-off Date in respect of
installments of interest and principal due thereafter, but not including
payments of principal and interest due and payable on each Subsequent Mortgage
Loan by the related Cut-off Date, and the Depositor shall simultaneously
transfer to the Trustee for the benefit of the Certificateholders, without
recourse, all the interest of the Depositor in each Subsequent Mortgage Loan
listed on the Mortgage Loan Schedule delivered by the Seller on the Subsequent
Transfer Date, including all interest and principal received or receivable by
the Depositor on or with respect to each Subsequent Mortgage Loan after the
related Cut-off Date and all interest and principal payments on each Subsequent
Mortgage Loan received before the related Cut-off Date in respect of
installments of interest and principal due thereafter, but not including
payments of principal and interest due and payable on each Subsequent Mortgage
Loan by the related Cut-off Date.
(b) If the assignment and transfer of the Subsequent Mortgage Loans
and the other property specified in this Section 2.08 from the Seller to the
Depositor pursuant to this Agreement is held or deemed not to be a sale or is
held or deemed to be a pledge of security for a loan, the Seller intends that
the rights and obligations of the parties shall be established pursuant to this
Agreement and that, in such event, (i) the Seller shall be deemed to have
granted and does hereby grant to the Depositor as of each Subsequent Transfer
Date a perfected, first priority security interest in the entire interest of
the Seller in the related Subsequent Mortgage Loans and all other property
conveyed to the Depositor pursuant to this Section 2.08 and all proceeds
thereof, and (ii) this Agreement shall constitute a security agreement under
applicable law.
If the assignment and transfer of the Subsequent Mortgage Loans and the other
property specified in this Section 2.08 from the Depositor to the Trustee
pursuant to this Agreement is held or deemed not to be a sale or is held or
deemed to be a pledge of security for a loan, the Depositor intends that the
rights and obligations of the parties shall be established pursuant to this
Agreement and that, in such event, (i) the Depositor shall be deemed to have
granted and does hereby grant to the Trustee as of each Subsequent Transfer
Date a perfected, first priority security interest in the entire interest of
the Depositor in the related Subsequent Mortgage Loans and all other property
conveyed to the Trust Fund pursuant to this Section 2.08 and all proceeds
thereof, and (ii) this Agreement shall constitute a security agreement under
applicable law.
(c) The amount released from the Pre-Funding Account by the Trustee
pursuant to this Section 2.08 shall be the aggregate Cut-off Date Principal
Balance of the Subsequent Mortgage Loans so transferred to the Trust Fund.
(d) The Trustee shall contribute from the Pre-Funding Account funds
in an amount equal to the aggregate Cut-off Date Principal Balance of the
Subsequent Mortgage Loans so transferred to the Trust Fund to purchase the
Subsequent Mortgage Loans on behalf of the Trust Fund, along with the other
property and rights related thereto described in Section 2.08(a) only upon the
satisfaction of each of the following conditions:
(i) the Trustee will be provided Opinions of Counsel addressed
to the Rating Agencies with respect to the sale of the Subsequent
Mortgage Loans conveyed on the Subsequent Transfer Date (the opinions
being substantially similar to the opinions delivered on the Closing
Date to the Rating Agencies with respect to the sale of the Initial
Mortgage Loans on the Closing Date);
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(ii) the execution and delivery of the Subsequent Transfer
Agreement or conveyance of the related Subsequent Mortgage Loans does
not result in a reduction or withdrawal of the any ratings assigned
to the Offered Certificates by the Ratings Agencies;
(iii) the Depositor shall deliver to the Trustee an Officer's
Certificate confirming the satisfaction of each of the conditions in
Article II and this Section 2.08(d) required to be satisfied by the
Subsequent Transfer Date;
(iv) each Subsequent Mortgage Loan conveyed on the Subsequent
Transfer Date satisfies the representations and warranties applicable
to it under this Agreement;
(v) the Subsequent Mortgage Loans conveyed on the Subsequent
Transfer Date were selected in a manner reasonably believed not to be
adverse to the interests of the Certificateholders;
(vi) no Subsequent Mortgage Loan conveyed on the Subsequent
Transfer Date was 30 or more days delinquent;
(vii) each Subsequent Mortgage Loan conveyed on the Subsequent
Transfer Date that is an Adjustable Rate Mortgage Loan is secured by
a first lien on the related Mortgaged Property;
(viii) following the conveyance of the Subsequent Mortgage Loans
on the Subsequent Transfer Date, the characteristics of the Mortgage
Loans held in the Trust Fund listed below will not vary by more than
the permitted variance listed below from the average or weighted
average of such characteristic as presented in the Prospectus
Supplement; provided that for the purpose of making the calculations,
the characteristics for each Mortgage Loan made will be taken as of
related Cut-off Date for the Mortgage Loan:
Variance
Weighted Average Coupon:........................... (+/-0.10%)
Weighted Average Maturity:......................... (+/-2 months)
Weighted Average Combined Loan-to-Value Ratio:..... (+0.70%)
Weighted Average FICO Score:....................... (-5 points)
Balloon Loans:..................................... (+0.01%)
Maximum Principal Balance:......................... (+10.00%)
State Concentration:............................... (+1.01%)
Zip Code Concentration:............................ (+2.00%)
Non-Owner Occupied:................................ (+2.00%)
Second Liens:...................................... N/A
Manufactured Housing:.............................. (+2.00%)
Loans with Loan-to-Value ratio greater than 80%:... (+2.00%)
Multifamily Loans:................................. (+2.00%)
Purchased Loans:................................... (-3.00%)
Investor Properties:............................... (+2.00%)
Second Home Properties:............................ (+2.00%)
(ix) neither the Seller nor the Depositor will be rendered
insolvent by the conveyance of Subsequent Mortgage Loans on the
Subsequent Transfer Date;
(x) delivery of a letter or letters addressed to the Trustee
from an independent accountant retained by the Depositor confirming
that the characteristics of the Mortgage Loans,
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following the acquisition of the related Subsequent Mortgage Loans,
conform to the characteristics identified in this Section 2.08(d);
(xi) delivery to the Trustee of an Opinion of Counsel, which
Opinion of Counsel shall not be at the expense of either the Trustee
or the Trust Fund, addressed to the Trustee, to the effect that the
purchase of Subsequent Mortgage Loans will not (i) result in the
imposition of the tax on "prohibited transactions" on the Trust Fund
or contributions after the Startup Date, as defined in Sections
860F(a)(2) and 860G(d) of the Code, respectively or (ii) cause any
REMIC to fail to qualify as a REMIC at any time that any Certificates
are outstanding; and
(xii) delivery to the Trustee of the Mortgage File for each
Subsequent Mortgage Loan to be transferred pursuant to the related
Subsequent Transfer Agreement. The Trustee shall not be required to
investigate or otherwise verify compliance with these conditions,
except for its own receipt of documents specified above, and shall be
entitled to rely on the required Officer's Certificate.
(e) In connection with each Subsequent Transfer Date and on the
related Distribution Date, the Seller shall determine (i) the amount and
correct dispositions of the funds distributed from the Capitalized Interest
Account and the Pre-Funding Account and (ii) any other necessary matters in
connection with the administration of the Capitalized Interest Account and the
Pre-Funding Account. If the Trustee releases any amounts from the Pre-Funding
Account or the Capitalized Interest Account because of the Seller's calculation
error, the Trustee shall not be liable therefor, and the Seller shall
immediately repay the amounts to the Trustee.
Section 2.09 Mandatory Prepayment.
Any Unused Pre-Funding Amount shall be distributed to Holders of the
Certificates in accordance with Section 4.02 on the Distribution Date following
the Due Period in which the end of the Pre-Funding Period occurs.
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ARTICLE THREE
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01 Master Servicer to Service Mortgage Loans.
For and on behalf of the Certificateholders, the Master Servicer shall
service and administer the Mortgage Loans in accordance with this Agreement and
the Servicing Standard.
The Master Servicer shall not make or permit any modification, waiver,
or amendment of any term of any Mortgage Loan that would cause the REMIC to
fail to qualify as a REMIC or result in the imposition of any tax under section
860F(a) or section 860G(d) of the Code.
Without limiting the generality of the foregoing, the Master Servicer,
in its own name or in the name of the Depositor and the Trustee, is hereby
authorized and empowered by the Depositor and the Trustee, when the Master
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 Master Servicer shall prepare and
deliver to the Depositor or the Trustee any documents requiring execution and
delivery by either or both of them appropriate to enable the Master Servicer to
service and administer the Mortgage Loans to the extent that the Master
Servicer is not permitted to execute and deliver such documents pursuant to the
preceding sentence. Upon receipt of the documents, the Depositor or the Trustee
shall execute the documents and deliver them to the Master Servicer.
In accordance with and to the extent of the Servicing Standard, the
Master Servicer shall advance funds necessary to effect the payment of taxes
and assessments on the Mortgaged Properties, which advances shall be
reimbursable in the first instance from related collections from the Mortgagors
pursuant to Section 3.07, and further as provided in Section 3.09. The costs
incurred by the Master Servicer in effecting the timely payments of taxes and
assessments on the Mortgaged Properties and related insurance premiums shall
not, for the purpose of calculating monthly distributions to the
Certificateholders, be added to the Stated Principal Balances of the related
Mortgage Loans, notwithstanding that the Mortgage Loans so permit.
Section 3.02 Subservicing; Enforcement of the Obligations of
Subservicers.
(a) The Master Servicer may arrange for the subservicing of any
Mortgage Loan by a subservicer pursuant to a subservicing agreement (a
"Subservicer"). The subservicing arrangement and the related subservicing
agreement must provide for the servicing of the Mortgage Loans in a manner
consistent with the servicing arrangements contemplated hereunder. Unless the
context otherwise requires, references in this Agreement to actions taken or to
be taken by the Master Servicer in servicing the Mortgage Loans include actions
taken or to be taken by a Subservicer on behalf of the Master Servicer.
Notwithstanding anything in any subservicing agreement or this Agreement
relating to agreements or arrangements between the Master Servicer and a
Subservicer or references to actions taken through a Subservicer or otherwise,
the Master Servicer shall remain obligated and liable to the Trustee and
Certificateholders for the servicing and administration of the Mortgage Loans
in accordance with this Agreement without diminution of its obligation or
liability by virtue of the subservicing agreements or arrangements or by virtue
of indemnification from the Subservicer and to the same extent and under the
same terms as if the Master Servicer alone were servicing and administering the
Mortgage Loans. All actions of each
46
Subservicer performed pursuant to the related subservicing agreement
shall be performed as agent of the Master Servicer with the same effect as if
performed directly by the Master Servicer.
(b) For purposes of this Agreement, the Master Servicer shall be
deemed to have received any collections, recoveries, or payments with respect
to the Mortgage Loans that are received by the Subservicer regardless of
whether the payments are remitted by the Subservicer to the Master Servicer.
Section 3.03 Rights of the Depositor and the Trustee in Respect of
the Master Servicer.
The Depositor may, but is not obligated to, enforce the obligations
of the Master Servicer under this Agreement and may, but is not obligated to,
perform, or cause a designee to perform, any defaulted obligation of the Master
Servicer under this Agreement and in connection with any such defaulted
obligation to exercise the related rights of the Master Servicer under this
Agreement; provided that the Master 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 Master
Servicer nor shall the Trustee or the Depositor be obligated to supervise the
performance of the Master Servicer under this Agreement or otherwise.
Section 3.04 No Contractual Relationship Between Subservicers and the
Trustee.
Any subservicing arrangement that may be entered into and any other
transactions or services relating to the Mortgage Loans involving a Subservicer
in its capacity as such and not as an originator shall be deemed to be solely
between the Subservicer and the Master Servicer alone, and the Trustee and
Certificateholders shall not be deemed parties thereto and shall have no
claims, rights, obligations, duties, or liabilities with respect to the
Subservicer in its capacity as such except as set forth in Section 3.05.
Section 3.05 Trustee to Act as Master Servicer.
If the Master Servicer for any reason is no longer the Master
Servicer under this Agreement (including because of the occurrence or existence
of an Event of Default), the Trustee or its successor shall assume all of the
rights and obligations of the Master Servicer hereunder arising thereafter
(except that the Trustee shall not be
(i) liable for losses of the Master Servicer pursuant to Section
3.10 or any acts or omissions of the predecessor Master Servicer
hereunder,
(ii) obligated to make Advances if it is prohibited from doing
so by applicable law,
(iii) obligated to effectuate repurchases or substitutions of
Mortgage Loans hereunder, including repurchases or substitutions
pursuant to Section 2.02 or 2.03,
(iv) responsible for expenses of the Master Servicer pursuant to
Section 2.03, or
(v) deemed to have made any representations and warranties of
the Master Servicer hereunder). Any assumption shall be subject to
Section 7.02.
Every subservicing agreement entered into by the Master Servicer
shall contain a provision giving the successor Master Servicer the option to
terminate the agreement if a successor Master Servicer is appointed.
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If the Master Servicer is no longer the Master Servicer for any reason
(including because the occurrence or existence of any Event of Default), the
Trustee (or any other successor Master Servicer) may, at its option, succeed to
any rights and obligations of the Master Servicer under any subservicing
agreement in accordance with its terms. The Trustee (or any other successor
Master Servicer) shall not incur any liability or have any obligations in its
capacity as successor Master Servicer under a subservicing agreement arising
before the date of succession unless it expressly elects to succeed to the
rights and obligations of the Master Servicer thereunder; and the Master
Servicer shall not thereby be relieved of any liability or obligations under
the subservicing agreement arising before the date of succession.
The Master Servicer shall, upon request of the Trustee, but at the
expense of the Master Servicer, deliver to the assuming party all documents and
records relating to each subservicing agreement and the Mortgage Loans then
being serviced thereunder and an accounting of amounts collected held by it and
otherwise use its best efforts to effect the orderly and efficient transfer of
the subservicing agreement to the assuming party.
Notwithstanding anything else in this Agreement to the contrary, in no
event shall the Trustee be liable for any servicing fee or for any differential
in the amount of the Servicing Fee paid under this Agreement and the amount
necessary to induce any successor Master Servicer to act as successor Master
Servicer under this Agreement and the transactions provided for in this
Agreement.
Section 3.06 Collection of Mortgage Loan Payments; Servicing
Accounts; Collection Account; Certificate Account; Distribution Account;
Pre-Funding Account; Capitalized Interest Account.
(a) In accordance with and to the extent of the Servicing Standard,
the Master Servicer shall make reasonable efforts in accordance with the
customary and usual standards of practice of prudent mortgage servicers to
collect all payments called for under the Mortgage Loans to the extent the
procedures are consistent with this Agreement and any related Required
Insurance Policy. Consistent with the foregoing, the Master Servicer may in its
discretion (i) waive any late payment charge or, subject to Section 3.21, any
prepayment charge or penalty interest in connection with the prepayment of a
Mortgage Loan and (ii) extend the due dates for payments due on a Delinquent
Mortgage Loan for a period not greater than 125 days. In connection with a
seriously delinquent or defaulted Mortgage Loan, the Master Servicer may,
consistent with the Servicing Standard, waive, modify or vary any term of that
Mortgage Loan (including modifications that change the Mortgage Rate, forgive
the payment of principal or interest or extend the final maturity date of that
Mortgage Loan ), accept payment from the related Mortgagor of an amount less
than the Stated Principal Balance in final satisfaction of that Mortgage Loan,
or consent to the postponement of strict compliance with any such term or
otherwise grant indulgence to any Mortgagor if in the Master 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
Master 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 Master 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 Master Servicer shall make Advances on the related Mortgage Loan in
accordance with Section 4.01 during the scheduled period in accordance with the
amortization schedule of the Mortgage Loan without modification thereof because
of the arrangements. The Master Servicer
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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 Master Servicer shall not have the
discretion to sell any Delinquent or defaulted Mortgage Loan.
(b) The Master Servicer shall establish and maintain (or, if a
Mortgage Loan is subserviced by another Person, cause the related Subservicer
to establish and maintain) one or more Servicing Accounts (the "Servicing
Account") into which the Master Servicer shall deposit on a daily basis within
one Business Day of receipt, the following payments and collections received by
it or remitted by any Subservicer in respect of Mortgage Loans after the
Cut-off Date (other than in respect of principal and interest due on the
Mortgage Loans by the Cut-off Date):
(i) all payments on account of principal on the Mortgage Loans,
including Principal Prepayments;
(ii) all payments on account of interest on the Mortgage Loans,
net of the Servicing Fee; and
(iii) all Insurance Proceeds and Liquidation Proceeds, other
than proceeds to be applied to the restoration or repair of the
Mortgaged Property or released to the Mortgagor in accordance with
the Master Servicer's normal servicing procedures.
By the Withdrawal Date in each calendar month, the Master Servicer
shall (a) withdraw from the Servicing Account all amounts on deposit therein
pursuant to clauses (i) and (ii) above (other than amounts attributable to a
Principal Prepayment in Full) and (b) deposit such amounts in the Collection
Account.
By the Business Day in each calendar month following the deposit in
the Servicing Account of amounts on deposit therein pursuant to clause (iii)
above or pursuant to any Principal Prepayment in Full, the Master Servicer
shall (a) withdraw such amounts from the Servicing Account and (b) deposit such
amounts in the Collection Account.
(c) The Master Servicer shall establish and maintain a Collection
Account (the "Collection Account") into which the Master Servicer shall
deposit, as and when required by paragraph (b) of this Section 3.06, all
amounts required to be deposited into the Collection Account pursuant to that
paragraph.
(d) The Master Servicer shall establish and maintain a Certificate
Account into which the Master Servicer shall deposit on a daily basis (i)
within one Business Day of deposit in the Collection Account (in the case of
items (i) through (iii) below) and (2) within one Business Day of receipt (in
the case of all other items), except as otherwise specified herein, the
following payments and collections received by it or remitted by any
Subservicer in respect of Mortgage Loans after the related Cut-off Date (other
than in respect of principal and interest due on the Mortgage Loans by the
related Cut-off Date) and the following amounts required to be deposited
hereunder:
(i) all payments on account of principal on the Mortgage Loans,
including Principal Prepayments;
(ii) all payments on account of interest on the Mortgage Loans,
net of the Servicing Fee;
49
(iii) all Insurance Proceeds and Liquidation Proceeds, other
than proceeds to be applied to the restoration or repair of the
Mortgaged Property or released to the Mortgagor in accordance with
the Master Servicer's normal servicing procedures;
(iv) any amount required to be deposited by the Master Servicer
pursuant to Section 3.06(f) in connection with any losses on
Permitted Investments;
(v) any amounts required to be deposited by the Master Servicer
pursuant to Sections 3.10 and 3.12;
(vi) all Purchase Prices from the Master Servicer or Seller and
all Substitution Adjustment Amounts;
(vii) all Advances made by the Master Servicer pursuant to
Section 4.01; (viii) any other amounts required to be deposited 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 Master Servicer shall cause
funds to be deposited into the Certificate Account in an amount required to
cause an amount of interest to be paid with respect to the Mortgage Loan equal
to the amount of interest that has accrued on the Mortgage Loan from the
preceding Due Date at the Mortgage Rate net of the Servicing Fee Rate on that
date.
The foregoing requirements for remittance by the Master Servicer shall
be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments in the nature of late payment charges or
assumption fees, if collected, need not be remitted by the Master Servicer. If
the Master Servicer remits any amount not required to be remitted, it may at
any time withdraw that amount from the Certificate Account, any provision 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 Master Servicer shall
maintain adequate records with respect to all withdrawals made pursuant to this
Section 3.06. All funds deposited in the Certificate Account shall be held in
trust for the Certificateholders until withdrawn in accordance with Section
3.09.
(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 this Distribution Account the
following:
(i) the aggregate amount remitted by the Master Servicer to the
Trustee pursuant to Section 3.09(a);
(ii) any amount deposited by the Master Servicer pursuant to
Section 3.06(f) in connection with any losses on Permitted
Investments; and
(iii) any other amounts deposited under this Agreement which are
required to be deposited in the Distribution Account.
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If the Master Servicer remits any amount not required to be remitted,
it may at any time direct the Trustee in writing to withdraw that amount from
the Distribution Account, any provision 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 Master Servicer.
(f) Each institution at which the Certificate Account or Pre-Funding
Account is maintained shall invest the funds in such account as directed in
writing by the Master Servicer in Permitted Investments, which shall mature not
later than the second Business Day preceding the related Distribution Account
Deposit Date (except that if the Permitted Investment is an obligation of the
institution that maintains the account, then the Permitted Investment shall
mature not later than the Business Day preceding the Distribution Account
Deposit Date) and 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
Master 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 or Pre-Funding Account shall promptly be
deposited by the Master Servicer in the Certificate Account or Pre-Funding
Account, as applicable. 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 or Pre-Funding Account and made in accordance with
this Section 3.06.
(g) The Master Servicer shall give notice to the Trustee, the Seller,
each Rating Agency and the Depositor of any proposed change of the location of
the Certificate Account not later than 30 days and not more than 45 days prior
to any change thereof. The Trustee shall give notice to the Master 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 thereof.
(h) The Trustee shall establish and maintain, on behalf of the
Certificateholders, an account denominated the Pre-Funding Account in the name
of the Trustee. The Pre-Funding Account shall be treated as an "outside reserve
fund" under applicable Treasury regulations and shall not be an asset of any
REMIC created pursuant to this Agreement. Any investment earnings on the
Pre-Funding Account shall be treated as owned by the Seller and will be taxable
to the Seller. The amount of any realized losses on Permitted Investments in
the Pre-Funding Account shall promptly by deposited by Seller in the
Pre-Funding Account. On the Closing Date, the Seller shall remit the
Pre-Funding Amount to the Trustee for deposit in the Pre-Funding Account for
the purchase of Subsequent Mortgage Loans to be included in the Trust Fund.
The Trustee shall establish and maintain, on behalf of the
Certificateholders, an account denominated the Capitalized Interest Account in
the name of the Trustee. The Capitalized Interest Account shall be treated as
an "outside reserve fund" under applicable Treasury regulations and shall not
be an asset of any REMIC created pursuant to this Agreement. Any investment
earnings on the Capitalized Interest Account shall be treated as owned by the
Seller and will be taxable to the Seller. The amount of any realized losses on
Permitted Investments in the Capitalized Interest Account shall promptly be
deposited by the Seller in the Capitalized Interest Account.
On each Subsequent Transfer Date, upon satisfaction of the conditions
in Section 2.08, the Trustee shall withdraw from the Pre-Funding Account 100%
of the aggregate of the Cut-off Date
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Principal Balances of the Subsequent Mortgage Loans sold to the Trust
Fund on the Subsequent Transfer Date and pay that amount to the order of the
Seller.
On the Business Day immediately prior to that Distribution Date
following the Due Period in which the Pre-Funding Period ends, the Trustee
shall (i) withdraw the Unused Pre-Funding Amount from the Pre-Funding Account,
(ii) promptly deposit such amount in the Distribution Account, and (iii)
distribute such amount to the Certificates on the Distribution Date pursuant to
Section 4.02.
The amount deposited in the Distribution Account pursuant to the
preceding paragraph shall be net of any investment earnings on the amounts on
deposit in the Pre-Funding Account.
On the Business Day before each Distribution Date, through the
Distribution Date following the Due Period in which the Pre-Funding Period
ends, the Trustee shall transfer from the Capitalized Interest Account to the
Distribution Account the Capitalized Interest Requirement and shall distribute
such amount to the Certificates on the Distribution Date pursuant to Section
4.02. To the extent that the Capitalized Interest Requirement on any
Distribution Date exceeds the amount on deposit in the Capitalized Interest
Account, the Trustee shall transfer to the Distribution Account, to the extent
of the shortfall in the Capitalized Interest Requirement, the investment
earnings if any on the amounts on deposit in the Capitalized Interest Account
and the Pre-Funding Account. The remaining investment earnings on deposit in
the Capitalized Interest Account and the Pre-Funding Account shall be
transferred to the Seller.
All amounts remaining in the Capitalized Interest Account and any
investment earnings remaining in the Pre-Funding Account on the Distribution
Date following the Due Period in which the Pre-Funding Period ends shall be
transferred to the Seller.
Section 3.07 Collection of Taxes, Assessments and Similar Items;
Escrow Accounts.
(a) To the extent required by the related Mortgage Note and not
violative of current law, the Master Servicer shall establish and maintain one
or more accounts (each, an "Escrow Account") and deposit and retain therein all
collections from the Mortgagors (or advances) for the payment of taxes,
assessments, hazard insurance premiums or comparable items for the account of
the Mortgagors. Nothing herein shall require the Master Servicer to compel a
Mortgagor to establish an Escrow Account in violation of applicable law.
(b) Withdrawals of amounts so collected from the Escrow Accounts may
be made only to effect timely payment of taxes, assessments, hazard insurance
premiums, condominium or PUD association dues, or comparable items, to
reimburse (without duplication) the Master Servicer out of related collections
for any payments made pursuant to 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 Master Servicer shall advance any payments referred to in
Section 3.07(a) that are not timely paid by the Mortgagors or advanced by the
Master Servicer on the date when the tax, premium or other cost for which such
payment is intended is due, but the Master Servicer shall be required so to
advance only to the extent that such advances, in the good faith judgment of
the Master Servicer, will be recoverable by the Master Servicer out of
Insurance Proceeds, Liquidation Proceeds or otherwise.
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Section 3.08 Access to Certain Documentation and Information
Regarding the Mortgage Loans.
The Master Servicer shall afford the Depositor and the Trustee
reasonable access to all records and documentation regarding the Mortgage Loans
and all accounts, insurance information and other matters relating to this
Agreement, such access being afforded without charge, but only upon reasonable
request and during normal business hours at the office designated by the Master
Servicer.
Upon reasonable advance notice in writing, the Master Servicer will
provide to each Certificateholder that is a savings and loan association, bank,
or insurance company certain reports and reasonable access to information and
documentation regarding the Mortgage Loans sufficient to permit the
Certificateholder to comply with applicable regulations of the OTS or other
regulatory authorities with respect to investment in the Certificates. The
Master Servicer shall be entitled to be reimbursed by each such
Certificateholder for actual expenses incurred by the Master Servicer in
providing the reports and access.
Section 3.09 Permitted Withdrawals from the Certificate Account and
the Distribution Account.
(a) The Master Servicer may (and, in the case of clause (ix) below,
shall) from time to time make withdrawals from the Certificate Account for the
following purposes:
(i) to pay to the Master Servicer or the related subservicer (to
the extent not previously retained) the servicing compensation to
which it is entitled pursuant to Section 3.15, and to pay to the
Master Servicer, as additional master servicing compensation,
earnings on or investment income with respect to funds in or credited
to the Certificate Account;
(ii) to reimburse the Master Servicer for unreimbursed Advances
made by it, such right of reimbursement pursuant to this subclause
(ii) being limited to amounts received on the Mortgage Loans in
respect of which the Advance was made;
(iii) to reimburse the Master Servicer for any Nonrecoverable
Advance previously made;
(iv) to reimburse the Master Servicer for Insured Expenses from
the related Insurance Proceeds;
(v) to reimburse the Master Servicer for (a) unreimbursed
Servicing Advances, the Master Servicer's right to reimbursement
pursuant to this clause (a) with respect to any Mortgage Loan being
limited to amounts received on the Mortgage Loans that represent late
recoveries of the payments for which the advances were made pursuant
to Section 3.01 or Section 3.07 and (b) for unpaid 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 Master Servicer, or the
Depositor for expenses incurred by any of them and reimbursable
pursuant to Section 6.03;
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(viii) to withdraw any amount deposited in the Certificate
Account and not required to be deposited in the Certificate Account;
(ix) by the Distribution Account Deposit Date, to withdraw (1)
the Available Funds, the Trustee Fee for the Distribution Date, and
the amount of any insurance premiums payable under (b)(ii) below, to
the extent on deposit, and (2) the Prepayment Charges on deposit, and
remit such amount to the Trustee for deposit in the Distribution
Account; and
(x) to clear and terminate the Certificate Account upon
termination of this Agreement pursuant to Section 9.01.
The Master Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, to justify any withdrawal from the
Certificate Account pursuant to subclauses (i), (ii), (iv), (v), and (vi).
Before making any withdrawal from the Certificate Account pursuant to subclause
(iii), the Master Servicer shall deliver to the Trustee an Officer's
Certificate of a Servicing Officer indicating the amount of any previous
Advance determined by the Master Servicer to be a Nonrecoverable Advance and
identifying the related Mortgage Loans and their respective portions of the
Nonrecoverable Advance.
(b) The Trustee shall withdraw funds from the Distribution Account
for distributions to Certificateholders in the manner specified in this
Agreement (and to withhold from the amounts so withdrawn the amount of any
taxes that it is authorized to withhold pursuant to the last paragraph of
Section 8.11). In addition, the Trustee may from time to time make withdrawals
from the Distribution Account for the following purposes:
(i) to pay to itself the Trustee Fee for the related
Distribution Date;
(ii) [reserved];
(iii) [reserved];
(iv) to withdraw and return to the Master Servicer any amount
deposited in the Distribution Account and not required to be
deposited therein; and
(v) to clear and terminate the Distribution Account upon
termination of the Agreement pursuant to Section 9.01.
Section 3.10 Maintenance of Hazard Insurance; Maintenance of Primary
Insurance Policies.
(a) The Master Servicer shall maintain, for each Mortgage Loan,
hazard insurance with extended coverage in an amount that is at least equal to
the lesser of
(i) the maximum insurable value of the improvements securing the
Mortgage Loan and
(ii) the greater of (y) the outstanding principal balance of the
Mortgage Loan and (z) an amount such that the proceeds of the policy
are sufficient to prevent the Mortgagor or the mortgagee from
becoming a co-insurer.
Each policy of standard hazard insurance shall contain, or have an
accompanying endorsement that contains, a standard mortgagee clause. Any
amounts collected under the policies (other than the
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amounts to be applied to the restoration or repair of the related
Mortgaged Property or amounts released to the Mortgagor in accordance with the
Master Servicer's normal servicing procedures) shall be deposited in the
Certificate Account. Any cost incurred in maintaining any insurance shall not,
for the purpose of calculating monthly distributions to the Certificateholders
or remittances to the Trustee for their benefit, be added to the principal
balance of the Mortgage Loan, notwithstanding that the Mortgage Loan so
permits. Such costs shall be recoverable by the Master Servicer out of late
payments by the related Mortgagor or out of Liquidation Proceeds to the extent
permitted by Section 3.09. No earthquake or other additional insurance is to be
required of any Mortgagor or maintained on property acquired in respect of a
Mortgage other than pursuant to any applicable laws and regulations in force
that require additional insurance. If the Mortgaged Property is located at the
time of origination of the Mortgage Loan in a federally designated special
flood hazard area and the area is participating in the national flood insurance
program, the Master Servicer shall maintain flood insurance for the Mortgage
Loan. The flood insurance shall be in an amount equal to the least of (i) the
original principal balance of the related Mortgage Loan, (ii) the replacement
value of the improvements that are part of the Mortgaged Property, and (iii)
the maximum amount of flood insurance available for the related Mortgaged
Property under the national flood insurance program.
If the Master Servicer obtains and maintains a blanket policy insuring
against hazard losses on all of the Mortgage Loans, it shall have satisfied its
obligations in the first sentence of this Section 3.10. The policy may contain
a deductible clause on terms substantially equivalent to those commercially
available and maintained by comparable servicers. If the policy contains a
deductible clause and a policy complying with the first sentence of this
Section 3.10 has not been maintained on the related Mortgaged Property, and if
a loss that would have been covered by the required policy occurs, the Master
Servicer shall deposit in the Certificate Account, 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 Master
Servicer of the Mortgage Loans, the Master Servicer agrees to present, on
behalf of itself, the Depositor, and the Trustee for the benefit of the
Certificateholders, claims under any blanket policy.
(b) The Master Servicer shall not take any action that would result
in non-coverage under any applicable Primary Insurance Policy of any loss that,
but for the actions of the Master Servicer, would have been covered thereunder.
The Master Servicer shall not cancel or refuse to renew any Primary Insurance
Policy that is in effect at the date of the initial issuance of the
Certificates and is required to be kept in force hereunder unless the
replacement Primary Insurance Policy for the canceled or non-renewed policy is
maintained with a Qualified Insurer. The Master Servicer need not maintain any
Primary Insurance Policy if maintaining the Primary Insurance Policy is
prohibited by applicable law. The Master Servicer agrees, to the extent
permitted by applicable law, to effect the timely payment of the premiums on
each Primary Insurance Policy, and any costs not otherwise recoverable shall be
recoverable by the Master Servicer from the related liquidation proceeds.
In connection with its activities as Master Servicer of the Mortgage
Loans, the Master Servicer agrees to present, on behalf of itself, the Trustee
and the Certificateholders, claims to the insurer under any Primary Insurance
Policies and, 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
Master Servicer under any Primary Insurance Policies shall be deposited in the
Certificate Account or the Collection Account (as applicable).
Section 3.11 Enforcement of Due-On-Sale Clauses; Assumption
Agreements.
(a) Except as otherwise provided in this Section 3.11, when any
property subject to a Mortgage has been conveyed by the Mortgagor, the Master
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
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any Mortgage Note or Mortgage, to the extent permitted under
applicable law and governmental regulations, but only to the extent that
enforcement will not adversely affect or jeopardize coverage under any Required
Insurance Policy. Notwithstanding the foregoing, the Master Servicer is not
required to exercise these rights with respect to a Mortgage Loan if the Person
to whom the related Mortgaged Property has been conveyed or is proposed to be
conveyed satisfies the conditions contained in the Mortgage Note and Mortgage
related thereto and the consent of the mortgagee under the Mortgage Note or
Mortgage is not otherwise so required under the Mortgage Note or Mortgage as a
condition to the transfer.
If (i) the Master Servicer is prohibited by law from enforcing any
due-on-sale clause, (ii) coverage under any Required Insurance Policy would be
adversely affected, (iii) the Mortgage Note does not include a due-on-sale
clause, or (iv) nonenforcement is otherwise permitted hereunder, the Master
Servicer is authorized, subject to Section 3.11(b), to take or enter into an
assumption and modification agreement from or with the person to whom the
property has been or is about to be conveyed, pursuant to which the person
becomes liable under the Mortgage Note and, unless prohibited by applicable
state law, the Mortgagor remains liable thereon. The Mortgage Loan must
continue to be covered (if so covered before the Master Servicer enters into
the agreement) by the applicable Required Insurance Policies.
The Master Servicer, subject to Section 3.11(b), is also authorized
with the prior approval of the insurers under any Required Insurance Policies
to enter into a substitution of liability agreement with the Person, pursuant
to which the original Mortgagor is released from liability and the Person is
substituted as Mortgagor and becomes liable under the Mortgage Note.
Notwithstanding the foregoing, the Master Servicer shall not be deemed to be in
default under this Section 3.11 because of any transfer or assumption that the
Master Servicer reasonably believes it is restricted by law from preventing,
for any reason whatsoever.
(b) Subject to the Master Servicer's duty to enforce any due-on-sale
clause to the extent set forth in Section 3.11(a), in any case in which a
Mortgaged Property has been conveyed to a Person by a Mortgagor, and the Person
is to enter into an assumption agreement or modification agreement or
supplement to the Mortgage Note or Mortgage that requires the signature of the
Trustee, or if an instrument of release signed by the Trustee is required
releasing the Mortgagor from liability on the Mortgage Loan, the Master
Servicer shall prepare and deliver to the Trustee for signature and shall
direct the Trustee, in writing, to execute the assumption agreement with the
Person to whom the Mortgaged Property is to be conveyed, and the modification
agreement or supplement to the Mortgage Note or Mortgage or other instruments
appropriate to carry out the terms of the Mortgage Note or Mortgage or
otherwise to comply with any applicable laws regarding assumptions or the
transfer of the Mortgaged Property to the Person. In connection with any such
assumption, no material term of the Mortgage Note may be changed.
In addition, the substitute Mortgagor and the Mortgaged Property must
be acceptable to the Master Servicer in accordance with its underwriting
standards as then in effect. Together with each substitution, assumption, or
other agreement or instrument delivered to the Trustee for execution by it, the
Master Servicer shall deliver an Officer's Certificate signed by a Servicing
Officer stating that the requirements of this subsection have been met in
connection with such Officer's Certificate. The Master Servicer shall notify
the Trustee that any substitution or assumption agreement has been completed by
forwarding to the Trustee the original of the substitution or assumption
agreement, which in the case of the original shall be added to the related
Mortgage File and shall, for all purposes, be considered a part of the Mortgage
File to the same extent as all other documents and instruments constituting a
part of the Mortgage File. The Master Servicer will retain any fee collected by
it for entering into an assumption or substitution of liability agreement as
additional master servicing compensation.
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Section 3.12 Realization Upon Defaulted Mortgage Loans.
The Master 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 Master Servicer shall follow the Servicing Standard and
shall follow the requirements of the insurer under any Required Insurance
Policy. The Master Servicer shall not be required to expend its own funds in
connection with any foreclosure or towards the restoration of any property
unless it determines (i) that the restoration or foreclosure will increase the
proceeds of liquidation of the Mortgage Loan after reimbursement to itself of
restoration expenses and (ii) that restoration expenses will be recoverable to
it through Liquidation Proceeds (respecting which it shall have priority for
purposes of withdrawals from the Certificate Account). The Master Servicer
shall be responsible for all other costs and expenses incurred by it in any
foreclosure proceedings. The Master Servicer is entitled to reimbursement 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 Master Servicer has knowledge that a Mortgaged Property that
the Master Servicer is contemplating acquiring in foreclosure or by deed in
lieu of foreclosure is located within 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 Master
Servicer, the Master Servicer will, before acquiring the Mortgaged Property,
consider the risks and only take action in accordance with its established
environmental review procedures.
With respect to any REO Property, the deed or certificate of sale
shall be taken in the name of the Trustee for the benefit of the
Certificateholders, or its nominee, on behalf of the Certificateholders. The
Trustee's name shall be placed on the title to the REO Property solely as the
Trustee hereunder and not in its individual capacity. The Master Servicer shall
ensure that the title to the REO Property references the Pooling and Servicing
Agreement and the Trustee's capacity hereunder. Pursuant to its efforts to sell
the REO Property, the Master Servicer shall either itself or through an agent
selected by the Master Servicer protect and conserve the REO Property in
accordance with the Servicing Standard.
The Master Servicer shall perform the tax reporting and withholding
required by sections 1445 and 6050J of the Code with respect to foreclosures
and abandonments, the tax reporting required by section 6050H of the Code with
respect to the receipt of mortgage interest from individuals and, if required
by Section 6050P of the Code with respect to the cancellation of indebtedness
by certain financial entities, by preparing any required tax and information
returns, in the form required, and delivering the same to the Trustee for
filing.
If the Trust Fund acquires any Mortgaged Property as aforesaid or
otherwise in connection with a default or imminent default on a Mortgage Loan,
the REO Property shall only be held temporarily, shall be actively marketed for
sale, and the Master Servicer shall dispose of the Mortgaged Property as soon
as practicable, and in any case before the end of the third calendar year
following the calendar year in which the Trust Fund acquires the property.
Notwithstanding any other provision of this Agreement, no Mortgaged Property
acquired by the Trust Fund shall be rented (or allowed to continue to be
rented) or otherwise used for the production of income by or on behalf of the
Trust Fund.
The decision of the Master Servicer to foreclose on a defaulted
Mortgage Loan shall be subject to a determination by the Master Servicer that
the proceeds of the foreclosure would exceed the costs and expenses of bringing
a foreclosure proceeding. The proceeds received from the maintenance of any REO
Properties, net of reimbursement to the Master Servicer for costs incurred
(including any property or other taxes) in connection with maintenance of the
REO Properties and net of unreimbursed Servicing Fees,
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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 Master Servicer for any related unreimbursed
Servicing Advances or Servicing Fees or for any related unreimbursed Advances,
as applicable; second, to reimburse the Master Servicer, as applicable, and to
reimburse the Certificate Account for any Nonrecoverable Advances (or portions
thereof) that were previously withdrawn by the Master Servicer pursuant to
Section 3.09(a)(iii) that related to the Mortgage Loan; third, to accrued and
unpaid interest (to the extent no Advance has been made for such amount or any
such Advance has been reimbursed) on the Mortgage Loan or related REO Property,
at the Adjusted Net Mortgage Rate to the Due Date occurring in the month in
which such amounts are required to be distributed; and fourth, as a recovery of
principal of the Mortgage Loan. The Master Servicer will retain any Excess
Proceeds from the liquidation of a Liquidated Mortgage Loan as additional
servicing compensation pursuant to Section 3.15.
The Master Servicer may agree to a modification of any Mortgage Loan
(a "Modified Mortgage Loan") at the request of the related Mortgagor if (i) the
modification is in lieu of a refinancing and the Mortgage Rate on the Modified
Mortgage Loan, as modified, is approximately a prevailing market rate for
newly-originated Mortgage Loans having similar terms and (ii) the Master
Servicer purchases the Modified Mortgage Loan from the Trust Fund as described
below. Effective immediately after the modification, and, in any event, on the
same Business Day on which the modification occurs, all interest of the Trustee
in the Modified Mortgage Loan shall automatically be deemed transferred and
assigned to the Master Servicer and all benefits and burdens of ownership
thereof, including the right to accrued interest thereon from the date of
modification and the risk of default thereon, shall pass to the Master
Servicer. The Master Servicer shall promptly deliver to the Trustee a
certification of a Servicing Officer to the effect that all requirements of
this paragraph have been satisfied with respect to the Modified Mortgage Loan.
The Master Servicer shall deposit the Purchase Price for any Modified
Mortgage Loan in the Certificate Account pursuant to Section 3.06 within one
Business Day after the purchase of the Modified Mortgage Loan. Upon receipt by
the Trustee of written notification of any such deposit signed by a Servicing
Officer, the Trustee shall release to the Master Servicer the related Mortgage
File and shall execute and deliver such instruments of transfer or assignment,
in each case without recourse, as shall be necessary to vest in the Master
Servicer any Modified Mortgage Loan previously transferred and assigned
pursuant hereto. The Master Servicer covenants and agrees to indemnify the
Trust Fund against any liability for any "prohibited transaction" taxes and any
related interest, additions, and penalties imposed on the Trust Fund
established hereunder as a result of any modification of a Mortgage Loan
effected pursuant to this Section, any holding of a Modified Mortgage Loan by
the Trust Fund or any purchase of a Modified Mortgage Loan by the Master
Servicer (but such obligation shall not prevent the Master Servicer or any
other appropriate Person from contesting any such tax in appropriate
proceedings and shall not prevent the Master Servicer from withholding payment
of such tax, if permitted by law, pending the outcome of such proceedings). The
Master Servicer shall have no right of reimbursement for any
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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
Master Servicer of a notification that payment in full will be escrowed in a
manner customary for such purposes, the Master Servicer will immediately notify
the Trustee by delivering a "Request for Release" substantially in the form of
Exhibit N. Upon receipt of the request, the Trustee shall promptly release the
related Mortgage File to the Master Servicer, and the Trustee shall at the
Master Servicer's direction execute and deliver to the Master Servicer the
request for reconveyance, deed of reconveyance, or release or satisfaction of
mortgage or such instrument releasing the lien of the Mortgage in each case
provided by the Master Servicer, together with the Mortgage Note with written
evidence of cancellation thereon. Expenses incurred in connection with any
instrument of satisfaction or deed of reconveyance shall be chargeable to the
related Mortgagor.
From time to time and as shall be appropriate for the servicing or
foreclosure of any Mortgage Loan, including for such purpose collection under
any policy of flood insurance, any fidelity bond or errors or omissions policy,
or for the purposes of effecting a partial release of any Mortgaged Property
from the lien of the Mortgage or the making of any corrections to the Mortgage
Note or the Mortgage or any of the other documents included in the Mortgage
File, the Trustee shall, upon delivery to the Trustee of a Request for Release
in the form of Exhibit M signed by a Servicing Officer, release the Mortgage
File to the Master Servicer or its designee. Subject to the further limitations
set forth below, the Master Servicer shall cause the Mortgage File or documents
so released to be returned to the Trustee when the need therefor by the Master
Servicer no longer exists, unless the Mortgage Loan is liquidated and the
proceeds thereof are deposited in the Certificate Account, in which case the
Master Servicer shall deliver to the Trustee a Request for Release in the form
of Exhibit N, signed by a Servicing Officer.
If the Master Servicer at any time seeks to initiate a foreclosure
proceeding in respect of any Mortgaged Property as authorized by this
Agreement, the Master Servicer shall deliver to the Trustee, for signature, as
appropriate, any court pleadings, requests for trustee's sale, or other
documents necessary to effectuate such foreclosure or any legal action brought
to obtain judgment against the Mortgagor on the Mortgage Note or the Mortgage
or to obtain a deficiency judgment or to enforce any other remedies or rights
provided by the Mortgage Note or the Mortgage or otherwise available at law or
in equity.
Section 3.14 Documents, Records and Funds in Possession of the Master
Servicer to be Held for the Trustee.
The Master Servicer shall account fully to the Trustee for any funds
it receives or otherwise collects as Liquidation Proceeds or Insurance Proceeds
in respect of any Mortgage Loan. All Mortgage Files and funds collected or held
by, or under the control of, the Master Servicer in respect of any Mortgage
Loans, whether from the collection of principal and interest payments or from
Liquidation Proceeds, including any funds on deposit in the Certificate
Account, shall be held by the Master Servicer for and on behalf of the Trustee
and shall be and remain the sole and exclusive property of the Trustee, subject
to the applicable provisions of this Agreement. The Master Servicer also agrees
that it shall not create, incur or subject any Mortgage File or any funds that
are deposited in the Certificate Account, the Collection Account, Distribution
Account, or any Escrow Account, or any funds that otherwise are or may become
due or payable to the Trustee for the benefit of the Certificateholders, to any
claim, lien, security interest, judgment, levy, writ of attachment, or other
encumbrance, or assert by legal action or otherwise any claim or right of
setoff against any Mortgage File or any funds collected on, or in connection
with, a Mortgage Loan, except, however, that the Master Servicer shall be
entitled to set off
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against and deduct from any such funds any amounts that are
properly due and payable to the Master Servicer under this Agreement.
Section 3.15 Servicing Compensation.
As compensation for its activities hereunder, the Master Servicer may
retain or withdraw from the Servicing Account, the Collection Account, or the
Certificate Account the Servicing Fee for each Mortgage Loan for the related
Distribution Date. Notwithstanding the foregoing, the Servicing Fee payable to
the Master Servicer shall be reduced by the lesser of the aggregate of the
Prepayment Interest Shortfalls with respect to the Distribution Date and the
aggregate Compensating Interest for the Distribution Date.
The Master Servicer may retain or withdraw from the Servicing
Account, the Collection Account, or the Certificate Account the Servicing Fee
for each Mortgage Loan for the related Distribution Date. If the Master
Servicer directly services a Mortgage Loan, the Master Servicer may retain the
Servicing Fee for its own account as compensation for performing services. If a
Subservicer directly services a Mortgage Loan, unless the Subservicer retains
the Servicing Fee, the Master Servicer shall remit the Servicing Fee to the
related Subservicer as compensation for performing services.
Additional master servicing compensation in the form of Excess
Proceeds, assumption fees, late payment charges and all income net of any
losses realized from Permitted Investments shall be retained by the Master
Servicer to the extent not required to be deposited in the Certificate Account
pursuant to Section 3.06. The Master Servicer shall be required to pay all
expenses incurred by it in connection with its servicing activities hereunder
(including the fees of any Subservicer, payment of any premiums for hazard
insurance, and any Primary Insurance Policy and maintenance of the other forms
of insurance coverage required by this Agreement) and shall not be entitled to
reimbursement therefor except as specifically provided in this Agreement.
Section 3.16 Access to Certain Documentation.
The Master Servicer shall provide to the OTS and the FDIC and to
comparable regulatory authorities supervising Holders of Subordinated
Certificates and the examiners and supervisory agents of the OTS, the FDIC, and
such other authorities, access to the documentation regarding the Mortgage
Loans required by applicable regulations of the OTS and the FDIC. Access shall
be afforded without charge, but only upon reasonable prior written request and
during normal business hours at the offices designated by the Master Servicer.
Nothing in this Section 3.16 shall limit the obligation of the Master Servicer
to observe any applicable law prohibiting disclosure of information regarding
the Mortgagors and the failure of the Master Servicer to provide access as
provided in this Section 3.16 as a result of such obligation shall not
constitute a breach of this Section 3.16.
Section 3.17 Annual Statement as to Compliance.
The Master Servicer shall deliver to the Depositor and the Trustee by
March 1 of each year, commencing with 2003, an Officer's Certificate signed by
two Servicing Officers stating, as to each signer thereof, that (i) a review of
the activities of the Master Servicer during the preceding calendar year and of
the performance of the Master Servicer under this Agreement has been made under
such officer's supervision, and (ii) to the best of such officer's knowledge,
based on the review, the Master Servicer has fulfilled all its obligations
under this Agreement throughout the year, or, if there has been a default in
the fulfillment of any obligation, specifying each default known to the officer
and the nature and status thereof. The Trustee shall forward a copy of each
compliance statement to each Rating Agency.
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Section 3.18 Annual Independent Public Accountants' Servicing
Statement; Financial Statements.
By March 1 of each year, commencing with 2003, the Master Servicer at
its expense shall cause a nationally or regionally recognized firm of
independent public accountants (who may also render other services to the
Master Servicer, the Seller or any affiliate thereof) which is a member of the
American Institute of Certified Public Accountants to furnish a statement to
the Trustee and the Depositor to the effect that the firm has examined certain
documents and records relating to the servicing of the Mortgage Loans under
this Agreement or of mortgage loans under pooling and servicing agreements
substantially similar to this Agreement (the statement to have attached to it a
schedule of the pooling and servicing agreements covered by it) and that, on
the basis of its examination, conducted substantially in compliance with the
Audit Guide for Audits of HUD Approved Nonsupervised Mortgagees, the Uniform
Single Attestation Program for Mortgage Bankers, or the Audit Program for
Mortgages serviced for FNMA and FHLMC, such servicing has been conducted in
compliance with this Agreement except for any significant exceptions or errors
in records that, in the opinion of the firm, the Audit Guide for Audits of HUD
Approved Nonsupervised Mortgagees, the Uniform Single Attestation Program for
Mortgage Bankers, or the Audit Program for Mortgages serviced for FNMA and
FHLMC requires it to report. In rendering the statement, the firm may rely, as
to matters relating to direct servicing of Mortgage Loans by the subservicers,
upon comparable statements for examinations conducted substantially in
compliance with the Audit Guide for Audits of HUD Approved Nonsupervised
Mortgagees, the Uniform Single Attestation Program for Mortgage Bankers, or the
Audit Program for Mortgages serviced for FNMA and FHLMC (rendered within one
year of the statement) of independent public accountants with respect to the
related Subservicer. The Master Servicer shall deliver the statement to the
Trustee so that the Trustee can provide copies of the statement to any
Certificateholder on request at the Master Servicer's expense.
Section 3.19 Errors and Omissions Insurance; Fidelity Bonds.
The Master Servicer shall obtain and maintain in force (a) policies
of insurance covering errors and omissions in the performance of its
obligations as Master Servicer hereunder and (b) a fidelity bond covering its
officers, employees, and agents. Each policy and bond shall, together, comply
with the requirements from time to time of FNMA or FHLMC for persons performing
servicing for mortgage loans purchased by FNMA or FHLMC. If any policy or bond
ceases to be in effect, the Master Servicer shall obtain a comparable
replacement policy or bond from an insurer or issuer meeting the above
requirements as of the date of the replacement.
Section 3.20 Notification of Adjustments.
On each Adjustment Date, the Master 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 Master
Servicer shall execute and deliver the notices required by each Mortgage and
Mortgage Note and applicable regulations regarding interest rate adjustments.
The Master Servicer also shall provide timely notification to the Trustee of
all applicable data and information regarding such interest rate adjustments
and the Master Servicer's methods of implementing such interest rate
adjustments. Upon the discovery by the Master Servicer or the Trustee that the
Master 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 Master Servicer shall immediately deposit in the Certificate
Account from its own funds the amount of any loss caused thereby without
reimbursement therefor; provided, however, the Master Servicer shall not be
liable with respect to any interest rate adjustments made by any servicer prior
to the Master Servicer.
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Section 3.21 Prepayment Charges.
The Master 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
Master Servicer will not waive a Prepayment Charge in connection with a
refinancing of a Mortgage Loan that is not related to a default or a reasonably
foreseeable default.
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ARTICLE FOUR
DISTRIBUTIONS AND ADVANCES BY THE MASTER SERVICER
Section 4.01 Advances.
The Master Servicer shall determine on or before each Master Servicer
Advance Date whether it is required to make an Advance pursuant to the
definition thereof. If the Master Servicer determines it is required to make an
Advance, it shall, on or before the Master 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 Master
Servicer in discharge of its obligation to make any such Advance. Any funds so
applied shall be replaced by the Master Servicer by deposit in the Certificate
Account no later than the close of business on the next Master Servicer Advance
Date. The Master 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 related Mortgaged Property has not
been liquidated. The Master Servicer shall inform the Trustee of the amount of
the Advance to be made on each Master Servicer Advance Date no later than the
second Business Day before the related Distribution Date.
The Master Servicer shall deliver to the Trustee on the related
Master Servicer Advance Date an Officer's Certificate of a Servicing Officer
indicating the amount of any proposed Advance determined by the Master Servicer
to be a Nonrecoverable Advance.
Section 4.02 Priorities of Distribution.
(a) On each Distribution Date, the Trustee shall withdraw the
Available Funds from the Distribution Account and apply such funds to
distributions on the specified Classes of Senior Certificates in the following
order and priority and, in each case, to the extent of such funds remaining:
(i) concurrently, to each interest-bearing Class of 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) concurrently, to the Classes of Senior Certificates as
follows:
(A) to the Class PO Certificates an amount
allocable to the PO Formula Principal
Amount up to the Outstanding Class
Certificate Balance thereof; and
(B) on each Distribution Date prior to the
Senior Credit Support Depletion Date, the
Non-PO Formula Principal Amount up to the
amount of the Senior Principal Distribution
Amount for such Distribution Date will be
distributed, sequentially, as follows:
(a) to the Class A-R Certificates until its
Class Certificate Balance is reduced to
zero;
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(b) to the Class A-11 Certificates, the
Priority Amount, until its Class
Certificate Balance is reduced to zero;
(c) concurrently, to the Class A-1, Class A-2
and Class A-3 Certificates, pro rata, until
their respective Class Certificate Balances
are reduced to zero;
(d) to the Class A-4 Certificates, until its
Class Certificate Balance is reduced to
zero;
(e) concurrently, to the Class A-5 and Class
A-6 Certificates, pro rata, until their
respective Class Certificate Balances are
reduced to zero;
(f) sequentially, to the Class A-7, Class A-8,
Class A-9 and Class A-10 Certificates in
that order, until their respective Class
Certificate Balances are reduced to zero;
and
(g) to the Class A-11 Certificates, without
regard to the Priority Amount, until its
Class Certificate Balance is reduced to
zero.
(iii) to the Class PO Certificates, any Class PO Deferred
Amount, up to an amount not to exceed the amount calculated pursuant
to clause (A) of the definition of Subordinated Principal
Distribution Amount actually received or advanced for such
Distribution Date (with such amount to be allocated first from
amounts calculated pursuant to (A)(i) and (ii) and then (iii) of the
definition of Subordinated Principal Distribution Amount;
(iv) On each Distribution Date, Available Funds remaining after
making the distributions described in Section 4.02(a)(i)-(iii) will
be distributed to the Subordinated Certificates, the Class P
Certificates and the Class A-R Certificates, subject to paragraph
4.02(d) 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;
(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; and
(M) to the Class A-R Certificates, any remaining funds.
On each Distribution Date, all amounts representing Prepayment Charges
received during the related Prepayment Period will be distributed to the
holders of the Class P Certificates. On the Distribution Date immediately
following the expiration of the latest prepayment penalty term of the Mortgage
Loans, the $100 held in trust for the Class P Certificates will be distributed
to the holders of the Class P Certificates.
On any Distribution Date, amounts distributed in respect of Class PO
Deferred Amounts will not reduce the Class Certificate Balance of the Class PO
Certificates.
On any Distribution Date, to the extent the Amount Available for
Senior Principal is insufficient to make the full distribution required to be
made pursuant to clause (a)(ii)(A), (A) the amount distributable on the Class
PO Certificates in respect of principal shall be equal to the product of (1)
the related Amount Available for Senior Principal and (2) a fraction, the
numerator of which is the PO Formula Principal Amount and the denominator of
which is the sum of such PO Formula Principal Amount and the Senior Principal
Distribution Amount and (B) the amount distributable on the Senior Certificates
other than the Class PO Certificates, in respect of principal shall be equal to
the product of (1) the Amount Available for Senior Principal and (2) a
fraction, the numerator of which is such Senior Principal Distribution Amount
and the denominator of which is such Senior Principal Distribution Amount and
the PO Formula Principal Amount.
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(b) Notwithstanding anything provided in Section 4.02(a), on each
Distribution Date on and after the Senior Credit Support Depletion Date, the
Non-PO Formula Principal Amount will be distributed, concurrently as principal
to the classes of Senior Certificates (other than the Notional Amount
Certificates and the Class PO Certificates), pro rata, in accordance with their
respective Class Certificate Balances immediately before that Distribution
Date.;
(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 the
related Optimal Interest Distribution Amount and (ii) the related Class'
Allocable Share of (A) after the Special Hazard Coverage Termination Date, with
respect to each 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 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, (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 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 that
became a Fraud Loan during the calendar month preceding the month of such
Distribution Date, the excess of one month's interest at the related Adjusted
Net Mortgage Rate on the Stated Principal Balance of such Mortgage Loan as of
the Due Date in such month over the amount of Liquidation Proceeds applied as
interest on such Mortgage Loan with respect to such month.
(e) Notwithstanding the priority and allocation contained in Section
4.02(a), if, with respect to any Class of Subordinated Certificates, on any
Distribution Date the sum of the related Class 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)(iv).
Section 4.03 [Reserved].
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.
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Realized Losses with respect to any Distribution Date shall be
allocated as follows:
(i) the applicable PO Percentage of any Realized Loss,
including any Excess Loss, shall be allocated to the Class PO
Certificates until its Class Certificate Balance is reduced to zero;
and
(ii) (A) the applicable Non-PO Percentage of any Realized Loss
(other than any Excess Loss) shall be allocated first to the
Subordinated Certificates in reverse order of their respective
numerical Class designations (beginning with the Class of Subordinated
Certificates then outstanding with the highest numerical Class
designation) until the respective Class Certificate Balance of each
such Class is reduced to zero, and second to the Classes of Senior
Certificates (other than any Notional Amount Certificates, if
applicable, and the Class PO Certificates), pro rata on the basis of
their respective Class Certificate Balances, in each case immediately
prior to the related Distribution Date, until the respective Class
Certificate Balance of each such Class is reduced to zero;
(B) the applicable Non-PO Percentage of any Excess Losses on
the Mortgage Loans shall be allocated to the Classes of Senior
Certificates (other than the Class PO Certificates and Notional Amount
Certificates) and the Classes of Subordinated Certificates then
outstanding, pro rata, on the basis of their respective Class
Certificate Balances, in each case immediately prior to such
Distribution Date and until the respective Class Certificate Balances
thereof have been reduced to zero.
(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 sum of (i) the amount of any
payments on the Class PO Certificates in respect of Class PO Deferred Amounts
and (ii) the amount, if any, by which the aggregate of the Class Certificate
Balances of all outstanding Classes of Certificates (after giving effect to the
distribution of principal and the allocation of Realized Losses and Class PO
Deferred Amounts on such Distribution Date) exceeds the aggregate Stated
Principal Balance of the Mortgage Loans for the following Distribution 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(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(b) shall be accomplished by reducing the Certificate Balance thereof
immediately following the distributions made on the related Distribution Date
in accordance with the definition of Certificate Balance.
Section 4.06 Monthly Statements to Certificateholders.
(a) Not later than each Distribution Date, the Trustee shall prepare
and make available on its website at ▇▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇.▇▇▇/▇▇▇▇ to
each Certificateholder, the Master Servicer and the Depositor a statement for
the related distribution of:
(i) the amount of the distribution allocable to principal,
separately identifying the aggregate amount of any Principal
Prepayments and Liquidation Proceeds included therein;
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(ii) the amount of the distribution allocable to interest,
any Unpaid Interest Shortfall Amounts included in the distribution and
any remaining Unpaid Interest Shortfall Amounts after giving effect to
the distribution;
(iii) if the distribution to the Holders of any Class of
Certificates is less than the full amount that would be distributable
to them if sufficient funds were available, the amount of the
shortfall and the allocation of the shortfall between principal and
interest;
(iv) the Class Certificate Balance or Notional Amount of each
Class of Certificates after giving effect to the distribution of
principal on the Distribution Date;
(v) the Pool Stated Principal Balance for the following
Distribution Date;
(vi) the Senior Percentage and Subordinated Percentage for
the following Distribution Date;
(vii) the amount of the Servicing Fees paid to or retained by
the Master Servicer or Subservicer (with respect to the Subservicers,
in the aggregate) and the amounts of any additional servicing
compensation received by the Master Servicer attributable to
penalties, fees, excess Liquidation Proceeds or other similar charges
or fees and items with respect to the Distribution Date;
(viii) the Pass-Through Rate for each Class of Certificates
as of the day before the preceding Distribution Date;
(ix) the Pass-Through Rate for each Class of Certificates, if
adjusted from the date of the last monthly statement, expected to be
applicable on the next Distribution Date.
(x) 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;
(xi) the number and aggregate principal amounts of Mortgage
Loans (A) delinquent (exclusive of Mortgage Loans in foreclosure) (1)
1 to 30 days, (2) 31 to 60 days, (3) 61 to 90 days, and (4) 91 or more
days and (B) in foreclosure and delinquent (1) 1 to 30 days, (2) 31 to
60 days, (3) 61 to 90 days, and (4) 91 or more days, as of the close
of business on the last day of the calendar month preceding the
Distribution Date;
(xii) 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 each of the Due
Dates in each such month and
(B) delinquent 60 days or more on each of the Due Dates in
each such month;
(xiii) with respect to any Mortgage Loan that became an REO
Property during the preceding calendar month, the loan number and
Stated Principal Balance of the Mortgage Loan as of the close of
business on the Determination Date preceding the Distribution Date and
the date of acquisition thereof;
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(xiv) the total number and principal balance of any REO
Properties (and market value, if available) as of the close of
business on the Determination Date preceding the Distribution Date;
(xv) the Senior Prepayment Percentage for the following
Distribution Date;
(xvi) the aggregate amount of Realized Losses incurred during
the preceding calendar month and aggregate Realized Losses through
such Distribution Date;
(xvii) the Special Hazard Loss Coverage Amount, the Fraud
Loss Coverage Amount and the Bankruptcy Loss Coverage Amount, in each
case as of the Determination Date;
(xviii) with respect to the second Distribution Date, the
number and aggregate balance of any Delay Delivery Mortgage Loans not
delivered within the time periods specified in the definition of Delay
Delivery Mortgage Loans; and
(xix) the remaining Pre-Funding Amount.
(b) The Trustee's responsibility for disbursing the above information
to the Certificateholders is limited to the availability, timeliness and
accuracy of the information derived from the Master Servicer.
By each Determination Date the Master Servicer shall provide to the
Trustee in electronic form the information needed to determine the
distributions to be made pursuant to Section 4.02 and any other information on
which the Master Servicer and the Trustee mutually agree.
(c) 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 Distribution Date), the Master 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 hereto.
(d) Within a reasonable period of time after the end of each calendar
year, the Trustee shall cause to be furnished to each Person who at any time
during the calendar year was a Certificateholder, a statement containing the
information set forth in clauses (a)(i), (a)(ii) and (a)(vii) of this Section
4.06 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.
Section 4.07 [Reserved].
Section 4.08 Determination of Pass-Through Rates for LIBOR
Certificates.
On each LIBOR Determination Date so long as the LIBOR Certificates
are outstanding, the Trustee will determine LIBOR on the basis of the British
Bankers' Association ("BBA") "Interest Settlement Rate" for one-month deposits
in U.S. dollars as found on Moneyline Telerate Page 3750 as of 11:00 a.m.
London time on each LIBOR Determination Date.
(a) If LIBOR cannot be determined as provided in paragraph (A) of
this Section 4.08, the Trustee shall either (i) request each Reference Bank to
inform the Trustee of the quotation offered by its principal London office for
making one-month United States dollar deposits in leading banks in the London
interbank market, as of 11:00 a.m. (London time) on such LIBOR Determination
Date or (ii) in lieu of
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making any such request, rely on such Reference Bank quotations that
appear at such time on the Reuters Screen LIBO Page (as defined in the
International Swap Dealers Association Inc. Code of Standard Wording,
Assumptions and Provisions for Swaps, 1986 Edition), to the extent available.
(b) LIBOR for the next Accrual Period will be established by the
Trustee on each LIBOR Determination Date as follows:
(i) If on any LIBOR Determination Date two or more Reference
Banks provide such offered quotations, LIBOR for the next Accrual
Period shall be the arithmetic mean of such offered quotations
(rounding such arithmetic mean upwards if necessary to the nearest
whole multiple of 1/32%).
(ii) If on any LIBOR Determination Date only one or none of
the Reference Banks provides such offered quotations, LIBOR for the
next Accrual Period shall be whichever is the higher of (i) LIBOR as
determined on the previous LIBOR Determination Date or (ii) the
Reserve Interest Rate. The "Reserve Interest Rate" shall be the rate
per annum which the Trustee determines to be either (i) the arithmetic
mean (rounded upwards if necessary to the nearest whole multiple of
1/32%) of the one-month United States dollar lending rates that New
York City banks selected by the Trustee are quoting, on the relevant
LIBOR Determination Date, to the principal London offices of at least
two of the Reference Banks to which such quotations are, in the
opinion of the Trustee, being so made, or (ii) in the event that the
Trustee can determine no such arithmetic mean, the lowest one-month
United States dollar lending rate which New York City banks selected
by the Trustee are quoting on such LIBOR Determination Date to leading
European banks.
(iii) If on any LIBOR Determination Date the Trustee is
required but is unable to determine the Reserve Interest Rate in the
manner provided in paragraph (b) above, LIBOR shall be LIBOR as
determined on the preceding LIBOR Determination Date, or, in the case
of the first LIBOR Determination Date, the Initial LIBOR Rate.
(c) Until all of the LIBOR Certificates are paid in full, the Trustee
will at all times retain at least four Reference Banks for the purpose of
determining LIBOR with respect to each LIBOR Determination Date. The Master
Servicer initially shall designate the Reference Banks. Each "Reference Bank"
shall be a leading bank engaged in transactions in Eurodollar deposits in the
international Eurocurrency market, shall not control, be controlled by, or be
under common control with, the Trustee and shall have an established place of
business in London. If any such Reference Bank should be unwilling or unable to
act as such or if the Master Servicer should terminate its appointment as
Reference Bank, the Trustee shall promptly appoint or cause to be appointed
another Reference Bank. The Trustee shall have no liability or responsibility
to any Person for (i) the selection of any Reference Bank for purposes of
determining LIBOR or (ii) any inability to retain at least four Reference Banks
which is caused by circumstances beyond its reasonable control.
(d) The Pass-Through Rate for each Class of LIBOR Certificates for
each Accrual Period shall be determined by the Trustee on each LIBOR
Determination Date so long as the LIBOR Certificates are outstanding on the
basis of LIBOR and the respective formulae appearing in footnotes corresponding
to the LIBOR Certificates in the table relating to the Certificates in the
Preliminary Statement.
(e) In determining LIBOR, any Pass-Through Rate for the LIBOR
Certificates, any Interest Settlement Rate, or any Reserve Interest Rate, the
Trustee may conclusively rely and shall be protected in relying upon the
offered quotations (whether written, oral or on the Dow ▇▇▇▇▇ Markets) from the
BBA designated banks, the Reference Banks or the New York City banks as to
LIBOR, the Interest Settlement
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Rate or the Reserve Interest Rate, as appropriate, in effect from
time to time. The Trustee shall not have any liability or responsibility to any
Person for (i) the Trustee's selection of New York City banks for purposes of
determining any Reserve Interest Rate or (ii) its inability, following a
good-faith reasonable effort, to obtain such quotations from, the BBA
designated banks, the Reference Banks or the New York City banks or to
determine such arithmetic mean, all as provided for in this Section 4.08.
The establishment of LIBOR and each Pass-Through Rate for the LIBOR
Certificates by the Trustee shall (in the absence of manifest error) be final,
conclusive and binding upon each Holder of a Certificate and the Trustee.
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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 (i) such Holder
has so notified the Trustee at least five Business Days before the related
Record Date and (ii) such Holder shall hold (A) a Notional Amount Certificate,
(B) 100% of the Class Certificate Balance of any Class of Certificates or (C)
Certificates of any Class with aggregate principal Denominations of not less
than $1,000,000 or (y) by check mailed by first class mail to such
Certificateholder at the address of such holder appearing in the Certificate
Register.
The Trustee shall execute the Certificates by 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
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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.
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 Master
Servicer shall cooperate with the Depositor in providing the Rule 144A
information referenced in the preceding sentence, including providing to the
Depositor such information regarding the Certificates, the Mortgage Loans, and
other matters regarding the Trust Fund 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 Master Servicer
against any liability that may result if the transfer is not so exempt or is
not made in accordance with such federal and state laws.
No transfer of an ERISA-Restricted Certificate shall be made unless
the Trustee shall have received either (i) a representation from the transferee
of such Certificate acceptable to and in form and substance satisfactory to the
Trustee (if the Certificate is a Private Certificate, 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 the transferee is not an employee
benefit plan or arrangement subject to section 406 of ERISA or a plan subject
to section 4975 of the Code, nor a person acting on behalf of any such plan or
arrangement or using the assets of any such plan or arrangement to effect the
transfer, or (ii) if the ERISA-Restricted Certificate has been the subject of
an ERISA-Qualifying Underwriting, a representation that the purchaser is an
insurance company that is purchasing such Certificates with funds contained in
an "insurance company general account" (as such term is defined in Section V(e)
of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60") and that the
purchase and holding of such Certificates satisfy the requirements for
exemptive relief under Sections I and III of PTCE 95-60, or (iii) in the case
of any such ERISA-Restricted Certificate presented for registration in the name
of an employee benefit plan subject to ERISA, or a plan or arrangement subject
to section 4975 of the Code (or comparable provisions of any subsequent
enactments), or a trustee of any such plan or any other person acting on behalf
of any such plan or arrangement or using such plan's or arrangement's assets,
an Opinion
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of Counsel satisfactory to the Trustee and the Master Servicer,
which Opinion of Counsel shall not be an expense of the Trustee, the Master
Servicer or the Trust Fund, addressed to the Trustee, to the effect that the
purchase or holding of such ERISA-Restricted Certificate will not result in a
non-exempt prohibited transaction under ERISA or the Code and will not subject
the Trustee or the Master Servicer to any obligation in addition to those
expressly undertaken in this Agreement or to any liability. For purposes of the
preceding sentence, with respect to an ERISA-Restricted Certificate that is not
a Private Certificate or a Residual Certificate, if the representation letter
referred to in the preceding sentence is not furnished, the representation
shall be deemed to have been made to the Trustee by the transferee's (including
an initial acquirer's) acceptance of the ERISA-Restricted Certificates. If the
representation is violated, or any attempt 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
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5.02(b) and this Section 5.02(c) or for making any payments due on
such Certificate to the Holder thereof or taking any other action with
respect to such Holder under this Agreement so long as the Transfer
was registered after receipt of the related Transfer Affidavit,
Transferor Certificate and either the Rule 144A Letter or the
Investment Letter. The Trustee shall be entitled but not obligated to
recover from any Holder of a Residual Certificate that was in fact not
a Permitted Transferee at the time it became a Holder or, at such
subsequent time as it became other than a Permitted Transferee, all
payments made on such Residual Certificate at and after either such
time. Any such payments so recovered by the Trustee shall be paid and
delivered by the Trustee to the last preceding Permitted Transferee of
such Certificate.
(v) The Depositor shall use its best efforts to make
available, upon receipt of written request from the Trustee, all
information necessary to compute any tax imposed under section 860E(e)
of the Code as a result of a Transfer of an Ownership Interest in a
Residual Certificate to any Holder who is not a Permitted Transferee.
The restrictions on Transfers of a Residual Certificate set forth in
this Section 5.02(c) shall cease to apply (and the applicable portions of the
legend on a Residual Certificate may be deleted) with respect to Transfers
occurring after delivery to the Trustee of an Opinion of Counsel, which Opinion
of Counsel shall not be an expense of the Trust Fund, the Trustee, the Seller
or the Master Servicer, to the effect that the elimination of such restrictions
will not cause the REMIC 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
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represents or of brokerage firms for which it acts as agent in
accordance with the Depository's normal procedures.
If (x) (i) the Depository or the Depositor advises the Trustee in
writing that the Depository is no longer willing or able to properly discharge
its responsibilities as Depository, and (ii) the Trustee or the Depositor is
unable to locate a qualified successor, (y) the Depositor at its option advises
the Trustee in writing that it elects to terminate the book-entry system
through the Depository or (z) after the occurrence of an Event of Default,
Certificate Owners representing at least 51% of the Certificate Balance of the
Book-Entry Certificates together advise the Trustee and the Depository through
the Depository Participants in writing that the continuation of a book-entry
system through the Depository is no longer in the best interests of the
Certificate Owners, the Trustee shall notify all Certificate Owners, through
the Depository, of the occurrence of any such event and of the availability of
definitive, fully-registered Certificates (the "Definitive Certificates") to
Certificate Owners requesting the same. Upon surrender to the Trustee of the
related Class of Certificates by the Depository, accompanied by the
instructions from the Depository for registration, the Trustee shall issue the
Definitive Certificates. Neither the Master Servicer, the Depositor nor the
Trustee shall be liable for any delay in delivery of such instruction and each
may conclusively rely on, and shall be protected in relying on, such
instructions. The Master Servicer shall provide the Trustee with an adequate
inventory of certificates to facilitate the issuance and transfer of Definitive
Certificates. Upon the issuance of Definitive Certificates all references
herein to obligations imposed upon or to be performed by the Depository shall
be deemed to be imposed upon and performed by the Trustee, to the extent
applicable with respect to such Definitive Certificates and the Trustee shall
recognize the Holders of the Definitive Certificates as Certificateholders
hereunder; provided that the Trustee shall not by virtue of its assumption of
such obligations become liable to any party for any act or failure to act of
the Depository.
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificate is surrendered to the Trustee, or
(b) the Trustee receives evidence to its satisfaction of the destruction, loss,
or theft of any Certificate and the Master Servicer and the Trustee receive the
security or indemnity required by them to hold each of them harmless, then, in
the absence of notice to the Trustee that the Certificate has been acquired by
a Protected Purchaser, and if the requirements of Section 8-406 of the UCC are
met and subject to Section 8-405 of the UCC, the Trustee shall execute,
countersign, and deliver, in exchange for or in lieu of any 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 Master Servicer, the Trustee, and any agent of the Master
Servicer or the Trustee may treat the Person in whose name any Certificate is
registered as the owner of such Certificate for the purpose of receiving
distributions as provided in this Agreement and for all other purposes
whatsoever, and neither the Master Servicer, the Trustee nor any agent of the
Master Servicer or the Trustee shall be affected by any notice to the contrary.
Section 5.05 Access to List of Certificateholders' Names and
Addresses.
If three or more Certificateholders (a) request such information in
writing from the Trustee, (b) state that such Certificateholders desire to
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates, and (c) provide a copy of the
communication which such Certificateholders propose to transmit, or if the
Depositor or Master Servicer shall request such information in writing from the
Trustee, then the Trustee shall, within ten Business Days after the receipt of
such request, provide the Depositor, the Master Servicer or such
Certificateholders at such recipients' expense the most recent list of the
Certificateholders of such Trust Fund held by the Trustee. The Depositor and
every Certificateholder, by receiving and holding a Certificate, agree that the
Trustee shall not be held accountable because of the disclosure of any such
information as to the list of the Certificateholders hereunder, regardless of
the source from which such information was derived.
Section 5.06 Maintenance of Office or Agency.
The Trustee will maintain at its expense an office or offices or
agency or agencies in New York City located at c/o DTC Transfer Services, ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇ Entrance, New York, New York 10041, Attn: Corporate
Trust Administration, where Certificates may be surrendered for registration of
transfer or exchange. The Trustee will give prompt written notice to the
Certificateholders of any change in such location of any such office or agency.
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ARTICLE SIX
THE DEPOSITOR AND THE MASTER SERVICER
Section 6.01 Respective Liabilities of the Depositor and the Master
Servicer.
The Depositor and the Master Servicer shall each be liable in
accordance 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 Master
Servicer.
The Depositor and the Master 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 Master Servicer may be
merged or consolidated, or any Person resulting from any merger or
consolidation to which the Depositor or the Master Servicer shall be a party,
or any person succeeding to the business of the Depositor or the Master
Servicer, shall be the successor of the Depositor or the Master Servicer, as
the case may be, hereunder, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided, however, that the successor or surviving
Person to the Master Servicer shall be qualified to sell mortgage loans to, and
to service mortgage loans on behalf of, FNMA or FHLMC.
Section 6.03 Limitation on Liability of the Depositor, the Seller,
the Master Servicer, and Others.
None of the Depositor, the Seller, the Master Servicer or any of the
directors, officers, employees or agents of the Depositor, the Seller or the
Master Servicer shall be under any liability to the Certificateholders for any
action taken or for refraining from the taking of any action in good faith
pursuant to this Agreement, or for errors in judgment; provided, however, that
this provision shall not protect the Depositor, the Seller, the Master Servicer
or any such Person against any breach of representations or warranties made by
it herein or protect the Depositor, the Seller, the Master Servicer or any such
Person from any liability which would otherwise be imposed by reasons of
willful misfeasance, bad faith or gross negligence in the performance of duties
or because of reckless disregard of obligations and duties hereunder. The
Depositor, the Seller, the Master Servicer, and any director, officer, employee
or agent of the Depositor, the Seller or the Master Servicer may rely in good
faith on any document of any kind prima facie properly executed and submitted
by any Person respecting any matters arising hereunder. The Depositor, the
Seller, the Master Servicer, and any director, officer, employee or agent of
the Depositor, the Seller or the Master Servicer shall be indemnified by the
Trust Fund and held harmless against any loss, liability or expense incurred in
connection with any audit, controversy or judicial proceeding relating to a
governmental taxing authority or any legal action relating to this Agreement or
the Certificates, other than any loss, liability or expense related to any
specific Mortgage Loan or Mortgage Loans (except as any such loss, liability or
expense shall be otherwise reimbursable pursuant to this Agreement) and any
loss, liability or expense incurred because of willful misfeasance, bad faith
or gross negligence in the performance of duties hereunder or because of
reckless disregard of obligations and duties hereunder. None of the Depositor,
the Seller or the Master Servicer shall be under any
78
obligation to appear in, prosecute or defend any legal action that is
not incidental to its respective duties hereunder and which in its opinion may
involve it in any expense or liability; provided, however, that any of the
Depositor, the Seller or the Master Servicer may in its discretion undertake
any such action that it may deem appropriate in respect of this Agreement and
the rights and duties of the parties hereto and interests of the Trustee and
the Certificateholders hereunder. In such event, the legal expenses and costs
of such action and any liability resulting therefrom shall be expenses, costs
and liabilities of the Trust Fund, and the Depositor, the Seller, and the
Master Servicer shall be entitled to be reimbursed therefor out of the
Certificate Account.
Section 6.04 Limitation on Resignation of the Master Servicer.
The Master Servicer shall not resign from the obligations and duties
hereby imposed on it except (a) upon appointment of a successor servicer and
receipt by the Trustee of a letter from each Rating Agency that such a
resignation and appointment will not result in a downgrading of the rating of
any of the Certificates or (b) upon determination that its duties under this
Agreement are no longer permissible under applicable law. Any such
determination under clause (b) permitting the resignation of the Master
Servicer shall be evidenced by an Opinion of Counsel to such effect delivered
to the Trustee. No such resignation shall become effective until the Trustee or
a successor master servicer shall have assumed the Master Servicer's
responsibilities, duties, liabilities and obligations under this Agreement.
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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 Master 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 Master Servicer by
the Trustee or the Depositor or to the Master Servicer and the Trustee by the
Holders of Certificates of any Class evidencing not less than 25% of the
aggregate Percentage Interests of the Class; or
(b) any failure by the Master Servicer to observe or perform in any
material respect any other of the covenants or agreements on the part of the
Master Servicer contained in this Agreement, which failure materially affects
the rights of Certificateholders and continues unremedied for a period of 60
days after the date on which written notice of such failure shall have been
given to the Master Servicer by the Trustee or the Depositor, or to the Master
Servicer and the Trustee by the Holders of Certificates of any Class evidencing
not less than 25% of the Percentage Interests of the Class; provided that the
sixty-day cure period shall not apply to the initial delivery of the Mortgage
File for Delay Delivery Mortgage Loans nor the failure to repurchase or
substitute in lieu thereof; or
(c) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises for the appointment of a receiver,
conservator or liquidator in any insolvency, readjustment of debt, marshalling
of assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Master Servicer
and such decree or order shall have remained in force undischarged or unstayed
for a period of 60 consecutive days; or
(d) the Master Servicer shall consent to the appointment of a
receiver, conservator or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of or relating to
the Master Servicer or all or substantially all of the property of the Master
Servicer; or
(e) the Master Servicer shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take advantage of,
or commence a voluntary case under, any applicable insolvency or reorganization
statute, make an assignment for the benefit of its creditors, or voluntarily
suspend payment of its obligations.
If an Event of Default described in clauses (a) through (e) of this
Section 7.01 shall occur, then, and in each and every such case, so long as
such Event of Default shall not have been remedied, the Trustee may, or at the
direction of the Holders of Certificates of any Class evidencing not less than
66 2/3% of the Percentage Interests of the Class, the Trustee shall by notice
in writing to the Master Servicer (with a copy to each Rating Agency),
terminate all of the rights and obligations of the Master Servicer under this
Agreement and in the Mortgage Loans and the proceeds thereof, other than its
rights as a Certificateholder hereunder. On and after the receipt by the Master
Servicer of such written notice, all authority and power of the Master Servicer
hereunder, whether with respect to the Mortgage Loans or otherwise, shall pass
to and be vested in the Trustee. The Trustee shall make any Advance that the
Master Servicer failed to make subject to Section 3.05, whether or not the
obligations of the Master Servicer have been terminated pursuant to this
Section. The Trustee is hereby authorized and empowered to execute and deliver,
on behalf of the Master Servicer, as attorney-in-fact or otherwise, any
documents and other instruments, and to do or accomplish all other acts or
things necessary or appropriate to effect
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the purposes of such notice of termination, whether to complete the
transfer and endorsement or assignment of the Mortgage Loans and related
documents, or otherwise. Unless expressly provided in such written notice, no
such termination shall affect any obligation of the Master Servicer to pay
amounts owed pursuant to Article VIII. The Master Servicer agrees to cooperate
with the Trustee in effecting the termination of the Master Servicer's
responsibilities and rights hereunder, including the transfer to the Trustee of
all cash amounts which shall at the time be credited to the Certificate
Account, or thereafter be received with respect to the Mortgage Loans.
Notwithstanding any termination of the activities of the Master
Servicer under this Agreement, the Master Servicer shall be entitled to
receive, out of any late collection of a Scheduled Payment on a Mortgage Loan
which was due before the notice terminating such Master Servicer's rights and
obligations as Master Servicer hereunder and received after such notice, that
portion thereof to which such Master Servicer would have been entitled pursuant
to Sections 3.09(a)(i) through (viii), and any other amounts payable to such
Master Servicer hereunder the entitlement to which arose before the termination
of its activities hereunder.
Section 7.02 Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer receives a notice of
termination pursuant to Section 7.01, the Trustee shall, subject to and to the
extent provided in Section 3.05, be the successor to the Master Servicer in its
capacity as master servicer under this Agreement and the transactions set forth
or provided for herein and shall be subject to all the responsibilities, duties
and liabilities relating thereto placed on the Master Servicer by the terms
hereof and applicable law including the obligation to make Advances pursuant to
Section 4.01. As compensation therefor, the Trustee shall be entitled to all
funds relating to the Mortgage Loans that the Master Servicer would have been
entitled to charge to the Certificate Account or Distribution Account if the
Master Servicer had continued to act hereunder, including, if the Master
Servicer was receiving the Servicing Fee, the Servicing Fee. Notwithstanding
the foregoing, if the Trustee has become the successor to the Master Servicer
in accordance with Section 7.01, the Trustee may, if it shall be unwilling to
so act, or shall, if it is prohibited by applicable law from making Advances
pursuant to Section 4.01 or if it is otherwise unable to so act, appoint, or
petition a court of competent jurisdiction to appoint, any established mortgage
loan servicing institution the appointment of which does not adversely affect
the then current rating of the Certificates by each Rating Agency, as the
successor to the Master Servicer hereunder in the assumption of all or any part
of the responsibilities, duties or liabilities of the Master Servicer
hereunder. Any successor to the Master Servicer shall be an institution which
is a FNMA and FHLMC approved seller/servicer in good standing, which has a net
worth of at least $15,000,000, which is willing to service the Mortgage Loans
and which executes and delivers to the Depositor and the Trustee an agreement
accepting such delegation and assignment, containing an assumption by such
Person of the rights, powers, duties, responsibilities, obligations and
liabilities of the Master Servicer (other than liabilities of the Master
Servicer under Section 6.03 incurred before termination of the Master Servicer
under Section 7.01), with like effect as if originally named as a party to this
Agreement; provided that each Rating Agency acknowledges that its rating of the
Certificates in effect immediately before such assignment and delegation will
not be qualified or reduced, as a result of such assignment and delegation.
Pending appointment of a successor to the Master Servicer hereunder, the
Trustee, unless the Trustee is prohibited by law from so acting, shall, subject
to Section 3.05, act in such capacity as hereinabove provided. In connection
with such appointment and assumption, the Trustee may make such arrangements
for the compensation of such successor out of payments on Mortgage Loans as it
and such successor shall agree; 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 master servicer shall be deemed to be in default hereunder because of
any failure to make, or any delay in making, any distribution hereunder or
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any portion thereof or any failure to perform, or any delay in
performing, any duties or responsibilities hereunder, in either case caused by
the failure of the Master Servicer to deliver or provide, or any delay in
delivering or providing, any cash, information, documents or records to it.
Any successor to the Master Servicer as master servicer shall give
notice to the Mortgagors of such change of servicer and shall, during the term
of its service as master servicer, maintain in force the policy or policies
that the Master Servicer is required to maintain pursuant to this Agreement.
Section 7.03 Notification to Certificateholders.
(a) Upon any termination of or appointment of a successor to the
Master Servicer, the Trustee shall give prompt written notice thereof to
Certificateholders and to each Rating Agency.
(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.
Section 8.02 Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 8.01:
(a) the Trustee may request and rely upon and shall be protected in
acting or refraining from acting upon any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties and the
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Trustee shall have no responsibility to ascertain or confirm the
genuineness of any signature of any such party or parties;
(b) the Trustee may consult with counsel, financial advisers or
accountants and the advice of any such counsel, financial advisers or
accountants and any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such Opinion of Counsel;
(c) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Agreement;
(d) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other paper
or document, unless requested in writing so to do by Holders of Certificates
evidencing not less than 25% of the Voting Rights allocated to each Class of
Certificates;
(e) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
accountants or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agents, accountants or attorneys
appointed with due care by it hereunder;
(f) the Trustee shall not be required to risk or expend its own funds
or otherwise incur any financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers hereunder if it shall
have reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not assured to it;
(g) the Trustee shall not be liable for any loss on any investment of
funds pursuant to this Agreement (other than as issuer of the investment
security);
(h) the Trustee shall not be deemed to have knowledge of an Event of
Default until a Responsible Officer of the Trustee shall have received written
notice thereof; and
(i) the Trustee shall be under no obligation to exercise any of the
trusts, rights or powers vested in it by this Agreement or to institute,
conduct or defend any litigation hereunder or in relation hereto at the
request, order or direction of any of the Certificateholders, pursuant to this
Agreement, unless such Certificateholders shall have offered to the Trustee
reasonable security or indemnity satisfactory to the Trustee against the costs,
expenses and liabilities which may be incurred therein or thereby.
Section 8.03 Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates shall be taken
as the statements of the Depositor or the Seller, as the case may be, and the
Trustee assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Agreement or of the
Certificates or of any Mortgage Loan or related document other than with
respect to the Trustee's execution and countersignature of the Certificates.
The Trustee shall not be accountable for the use or application by the
Depositor or the Master Servicer of any funds paid to the Depositor or the
Master Servicer in respect of the Mortgage Loans or deposited in or withdrawn
from the Certificate Account by the Depositor or the Master Servicer.
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Except as provided in Section 2.01(c), the Trustee shall have no
responsibility for filing or recording any financing or continuation statement
in any public office at any time or to otherwise perfect or maintain the
perfection of any security interest or lien granted to it hereunder (unless the
Trustee shall have become the successor Master Servicer).
The Trustee executes the Certificates not in its individual capacity
but solely as Trustee of the Trust Fund created by this Agreement, in the
exercise of the powers and authority conferred and vested in it by this
Agreement. Each of the undertakings and agreements made on the part of the
Trustee on behalf of the Trust Fund in the Certificates is made and intended
not as a personal undertaking or agreement by the Trustee but is made and
intended for the purpose of binding only the Trust Fund.
Section 8.04 Trustee May Own Certificates.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Certificates with the same rights as it would have if it
were not the Trustee.
Section 8.05 Trustee's Fees and Expenses.
As compensation for its activities under this Agreement, 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 Master 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
Master 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 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 Master 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,
(B) the reasonable compensation, expenses, and disbursements of any
accountant, engineer, or appraiser that is not regularly employed by the
Trustee, to the extent that the Trustee must engage them to perform services
under this Agreement, and
(C) printing and engraving expenses in connection with preparing any
Definitive Certificates.
Except as otherwise provided in this Agreement, the Trustee shall not be
entitled to payment or reimbursement for any routine ongoing expenses incurred
by the Trustee in the ordinary course of its duties as Trustee, Registrar, or
Paying Agent under this Agreement or for any other expenses.
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Section 8.06 Eligibility Requirements for the Trustee.
The Trustee hereunder shall at all times be a corporation or
association organized and doing business under the laws of a state or the
United States of America, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by federal or state authority and with a
credit rating which would not cause either of the Rating Agencies to reduce
their respective then current ratings of the Certificates (or having provided
such security from time to time as is sufficient to avoid such reduction) as
evidenced in writing by each Rating Agency. If such corporation or association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section 8.06 the combined capital and surplus of such
corporation or association shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Trustee shall cease to be eligible in accordance with this
Section 8.06, the Trustee shall resign immediately in the manner and with the
effect specified in Section 8.07. The entity serving as Trustee may have normal
banking and trust relationships with the Depositor and its affiliates or the
Master Servicer and its affiliates; provided, however, that such entity cannot
be an affiliate of the Seller, the Depositor or the Master Servicer other than
the Trustee in its role as successor to the Master Servicer.
Section 8.07 Resignation and Removal of the Trustee.
The Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice of resignation to the Depositor, the
Master Servicer, 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.
If at any time the Trustee shall cease to be eligible in accordance
with Section 8.06 and shall fail to resign after written request thereto by the
Depositor, or if at any time the Trustee shall become incapable of acting, or
shall be adjudged as bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, or a tax is imposed with respect
to the Trust Fund by any state in which the Trustee or the Trust Fund is
located and the imposition of such tax would be avoided by the appointment of a
different trustee, then the Depositor or the Master Servicer may remove the
Trustee and appoint a successor trustee by written instrument, in triplicate,
one copy of which shall be delivered to the Trustee, one copy to the Master
Servicer and one copy to the successor trustee.
The Holders of Certificates entitled to at least 51% of the Voting
Rights may at any time remove the Trustee and appoint a successor trustee by
written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which shall be
delivered by the successor Trustee to the Master Servicer, one complete set to
the Trustee so removed and one complete set to the successor so appointed. The
successor trustee shall notify each Rating Agency of any removal of the
Trustee.
Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to this Section 8.07 shall become effective upon
acceptance of appointment by the successor trustee as provided in Section 8.08.
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Section 8.08 Successor Trustee.
Any successor trustee appointed as provided in Section 8.07 shall
execute, acknowledge and deliver to the Depositor and to its predecessor
trustee and the Master Servicer an instrument accepting such appointment
hereunder and thereupon the resignation or removal of the predecessor trustee
shall become effective and such successor trustee, without any further act,
deed or conveyance, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor hereunder, with the like effect as if
originally named as trustee herein. The Depositor, the Master Servicer and the
predecessor trustee shall execute and deliver such instruments and do such
other things as may reasonably be required for more fully and certainly vesting
and confirming in the successor trustee all such rights, powers, duties, and
obligations.
No successor trustee shall accept appointment as provided in this
Section 8.08 unless, at the time of its acceptance, the successor trustee is
eligible under Section 8.06 and its appointment does not adversely affect the
then current rating of the Certificates.
Upon acceptance of appointment by a successor trustee as provided in
this Section 8.08, the Depositor shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates. If the Depositor fails to
mail such notice within 10 days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be mailed
at the expense of the Depositor.
Section 8.09 Merger or Consolidation of the Trustee.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to the business of the Trustee, shall be the successor
of the Trustee hereunder, provided that such corporation shall be eligible
under Section 8.06 without the execution or filing of any paper or further act
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
Section 8.10 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time,
for the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust Fund or property securing any Mortgage Note may at the
time be located, the Master Servicer and the Trustee acting jointly shall have
the power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Trustee to act as co-trustee or co-trustees jointly
with the Trustee, or separate trustee or separate trustees, of all or any part
of the Trust Fund, and to vest in such Person or Persons, in such capacity and
for the benefit of the Certificateholders, such title to the Trust Fund or any
part thereof, whichever is applicable, and, subject to the other provisions of
this Section 8.10, such powers, duties, obligations, rights and trusts as the
Master Servicer and the Trustee may consider appropriate. If the Master
Servicer shall not have joined in such appointment within 15 days after the
receipt by it of a request to do so, or in the case an Event of Default shall
have occurred and be continuing, the Trustee alone shall have the power to make
such appointment. No co-trustee or separate trustee hereunder shall be required
to meet the terms of eligibility as a successor trustee under Section 8.06 and
no notice to Certificateholders of the appointment of any co-trustee or
separate trustee shall be required under Section 8.08.
Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and
conditions:
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(a) To the extent necessary to effectuate the purposes of this
Section 8.10, all rights, powers, duties and obligations conferred or imposed
upon the Trustee, except for the obligation of the Trustee under this Agreement
to advance funds on behalf of the Master Servicer, shall be conferred or
imposed upon and exercised or performed by the Trustee and such separate
trustee or co-trustee jointly (it being understood that such separate trustee
or co-trustee is not authorized to act separately without the Trustee joining
in such act), except to the extent that under any law of any jurisdiction in
which any particular act or acts are to be performed (whether as Trustee
hereunder or as successor to the Master Servicer hereunder), the Trustee shall
be incompetent or unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations (including the holding of title to the
applicable Trust Fund or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or co-trustee, but
solely at the direction of the Trustee;
(b) No trustee hereunder shall be held personally liable because of
any act or omission of any other trustee hereunder and such appointment shall
not, and shall not be deemed to, constitute any such separate trustee or
co-trustee as agent of the Trustee;
(c) The Trustee may at any time accept the resignation of or remove
any separate trustee or co-trustee; and
(d) The Master Servicer, and not the Trustee, shall be liable for the
payment of reasonable compensation, reimbursement and indemnification to any
such separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the separate trustees and co-trustees,
when and as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Trustee. Every such instrument shall be filed with the
Trustee and a copy thereof given to the Master Servicer and the Depositor.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its
estates, properties, rights, remedies and trusts shall vest in and be exercised
by the Trustee, to the extent permitted by law, without the appointment of a
new or successor trustee.
Section 8.11 Tax Matters.
It is intended that the assets with respect to which one REMIC
election pertaining to the Trust Fund is to be made, as set forth in the
Preliminary Statement, shall constitute, and that the conduct of matters
relating to such assets shall be such as to qualify such assets as, a "real
estate mortgage investment conduit" as defined in and in accordance with the
REMIC Provisions. In furtherance of such intention, the Trustee covenants and
agrees that it shall act as agent (and the Trustee is hereby appointed to act
as agent) on behalf of the 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
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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;
(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 the 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 calculation of any original issue
discount using the Prepayment Assumption (as defined in the Prospectus
Supplement);
(e) provide information necessary for the computation of tax imposed
on the transfer of a Residual Certificate to a Person that is not a Permitted
Transferee, or an agent (including a broker, nominee or other middleman) of a
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 the REMIC
created under this Agreement;
(h) pay, from the sources specified in the last paragraph of this
Section 8.11, the amount of any federal or state tax, including prohibited
transaction taxes as described below, imposed on the REMIC before its
termination when and as the same shall be due and payable (but such obligation
shall not prevent the Trustee or any other appropriate Person from contesting
any such tax in appropriate proceedings and shall not prevent the Trustee from
withholding payment of such tax, if permitted by law, pending the outcome of
such proceedings);
(i) ensure that federal, state or local income tax or information
returns shall be signed by the Trustee or such other person as may be required
to sign such returns by the Code or state or local laws, regulations or rules;
(j) maintain records relating to the 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 the REMIC
created under this Agreement in any administrative or judicial proceedings
relating to an examination or audit by any governmental
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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 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 REMIC, on the "net income from foreclosure
property" of the REMIC as defined in section 860G(c) of the Code, on any
contribution to the REMIC after the Startup Day pursuant to section 860G(d) of
the Code, or any other tax is imposed, including any minimum tax imposed on the
REMIC 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 Master Servicer or the Seller, in
the case of any such minimum tax, if such tax arises out of or results from a
breach by the Master Servicer or Seller of any of their obligations under this
Agreement, (iii) the Seller, if 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 Master Servicer, or
the Seller fails to honor its obligations under the preceding clauses (i),
(ii), or (iii), any such tax will be paid with amounts otherwise to be
distributed to the Certificateholders, as provided in Section 3.09(b).
Section 8.12 Periodic Filings.
Beginning with the first Distribution Date, the Trustee, pursuant to
written instructions of the Depositor (which instructions shall be deemed to be
this Section 8.12), shall prepare and file all periodic reports required under
the Exchange Act in conformity with the terms of the relief granted to issuers
similar to the Trust Fund. The Trustee shall execute the Form 8-Ks pursuant to
a limited power of attorney from the Depositor which shall terminate upon
written notice from the Depositor or the termination of this Agreement. In
connection with the preparation and filing of such periodic reports, the
Depositor and the Master Servicer shall timely provide to the Trustee all
material information available to them that is required to be included in such
reports and not known to them to be in the possession of the Trustee and such
other information as the Trustee reasonably may request from either of them
(including any certification required pursuant to Section 3.02(a) of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and any regulations promulgated thereunder (the
"Required Certifications")) and otherwise reasonably shall cooperate with the
Trustee. The Depositor shall execute the Form 10-Ks and the Required
Certifications. The Trustee shall have no responsibility for making any of the
Required Certifications; provided, however, that upon the request of the Master
Servicer or the Depositor in connection with the delivery of the Required
Certifications on behalf of the Trust Fund, the Trustee shall furnish to the
Master Servicer or the Depositor, as applicable, a certificate signed by an
officer of the Trustee (the "Trustee Certification"), which is attached as
Exhibit O to this Agreement. The Trustee shall indemnify and hold harmless the
Master Servicer and the Depositor, their respective officers and directors from
and against any and all
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losses, claims, expenses, damages or liabilities, as and when such
losses, claims, expenses, damages or liabilities are incurred, insofar as such
losses, claims, expenses, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement of any material
fact contained in the Trustee Certification. The Trustee shall prepare the Form
10-K and provide such to the Depositor by March 10th of each year, commencing
in 2003. The Depositor shall execute such Form 10-K upon its receipt and shall
provide the original of such executed Form 10-K to the Trustee no later than
five Business Days following its receipt from the Trustee.
Prior to January 30th of the first year in which the Trustee is able
to do so under applicable law, the Trustee shall file under the Exchange Act a
Form 15D Suspension Notification with respect to the Trust Fund. The Trustee
shall have no liability with respect to any failure to properly prepare or file
such periodic reports resulting from or relating to the Trustee's inability or
failure to obtain any information not resulting from its own negligence or
willful misconduct.
The Trustee and any director, officer, employee, or agent of the
Trustee shall be indemnified by the Master Servicer against any loss,
liability, or expense (including reasonable attorney's fees) incurred in
connection with any claim or legal action relating to the preparation of the
Required Certification, other than any loss, liability or expense incurred
because of willful misfeasance, bad faith or negligence in the performance of
any of the Trustee's duties under this Agreement or incurred by reason 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.
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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 Master Servicer, and the Trustee created hereby shall terminate
upon the earlier of
(a) the purchase by the Master Servicer of all Mortgage Loans (and
REO Properties) at the price equal to the sum of
(i) 100% of the Stated Principal Balance of each Mortgage
Loan (other than in respect of a Delinquent Mortgage Loan or REO
Property) plus one month's accrued interest thereon at the applicable
Adjusted Mortgage Rate and
(ii) the lesser of (x) the appraised value of any Delinquent
Mortgage Loan or REO Property as determined by the higher of two
appraisals completed by two independent appraisers selected by the
Master Servicer at the expense of the Master Servicer and (y) the
Stated Principal Balance of each 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
(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 hereof.
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 sum of (i) the aggregate Stated
Principal Balance of the Initial Mortgage Loans as of the Closing Date and (ii)
the aggregate Stated Principal Balance of any Subsequent Mortgage Loans as of
the related Subsequent Transfer Date.
Section 9.02 Final Distribution on the Certificates.
If on any Determination Date, the Master Servicer determines that
there are no Outstanding Mortgage Loans and no other funds or assets in the
Trust Fund other than the funds in the Certificate Account, the Master Servicer
shall direct the Trustee promptly to send a final distribution notice to each
Certificateholder. If the Master Servicer elects to terminate the Trust Fund
pursuant to clause (a) of Section 9.01, at least 20 days before the date notice
is to be mailed to the affected Certificateholders the Master Servicer shall
notify the Depositor and the Trustee of the date the Master Servicer intends to
terminate the Trust Fund and of the applicable repurchase price of the Mortgage
Loans and REO Properties.
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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 10th day of the month next preceding the month of
such final distribution. Any such notice shall specify (a) the Distribution
Date upon which final distribution on the Certificates will be made upon
presentation and surrender of Certificates at the office therein designated,
(b) the amount of such final distribution, (c) the location of the office or
agency at which such presentation and surrender must be made, and (d) that the
Record Date otherwise applicable to the Distribution Date is not applicable,
distributions being made only upon presentation and surrender of the
Certificates at the office therein specified. The Master Servicer will give
such notice to each Rating Agency at the time such notice is given to
Certificateholders.
If the notice is given, the Master Servicer shall cause all funds in
the Certificate Account to be remitted to the Trustee for deposit in the
Distribution Account on the Business Day before the applicable Distribution
Date in an amount equal to the final distribution in respect of the
Certificates. Upon such final deposit with respect to the Trust Fund and the
receipt by the Trustee of a Request for Release therefor, the Trustee shall
promptly release to the Master Servicer the Mortgage Files for the Mortgage
Loans.
Upon presentation and surrender of the Certificates, the Trustee shall
cause to be distributed to the Certificateholders of each Class, in each case
on the final Distribution Date and in the order set forth in Section 4.02, in
proportion to their respective Percentage Interests, with respect to
Certificateholders of the same Class, an amount equal to (i) as to each Class
of Regular Certificates, its Certificate Balance plus for each such Class
accrued interest thereon (or on their Notional Amount, if applicable) in the
case of an interest-bearing Certificate and (ii) as to the Residual
Certificates, any amount remaining on deposit in the Distribution Account
(other than the amounts retained to meet claims) after application pursuant to
clause (i) above.
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
shall not have been surrendered for cancellation, the Class A-R
Certificateholder shall be entitled to all unclaimed funds and other assets of
the Trust Fund which remain subject hereto.
Section 9.03 Additional Termination Requirements.
(a) If the Master Servicer exercises its purchase option with respect
to the Mortgage Loans as provided in Section 9.01, the Trust Fund shall be
terminated in accordance with the following additional requirements, unless the
Trustee has been supplied with an Opinion of Counsel, at the expense of the
Master Servicer, to the effect that the failure to comply with the requirements
of this Section 9.03 will not (i) result in the imposition of taxes on
"prohibited transactions" on the REMIC as defined in section 860F of the Code,
or (ii) cause the REMIC created under this Agreement to fail to qualify as a
REMIC at any time that any Certificates are outstanding:
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(b) The Trustee shall sell all of the assets of the Trust Fund to the
Master Servicer, and, within 90 days of such sale, shall distribute to the
Certificateholders the proceeds of such sale in complete liquidation of the
REMIC created under this Agreement.
(c) The Trustee shall attach a statement to the final federal income
tax return for the 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 Master 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
Master Servicer and the Trustee without the consent of any of the
Certificateholders (i) to cure any ambiguity or mistake, (ii) to correct any
defective provision in this Agreement or to supplement any provision in this
Agreement which may be inconsistent with any other provision in this Agreement,
(iii) to add to the duties of the Depositor, the Seller or the Master Servicer,
(iv) to add any other provisions with respect to matters or questions arising
under this Agreement, or (v) to modify, alter, amend, add to, or rescind any of
the terms or provisions contained in this Agreement.
No action pursuant to clauses (iv) or (v) above may, as evidenced by
an Opinion of Counsel (which Opinion of Counsel shall not be an expense of the
Trustee or the Trust Fund), adversely affect in any material respect the
interests of any Certificateholder. The amendment shall not be deemed to
adversely affect in any material respect the interests of the
Certificateholders if the Person requesting the amendment obtains a letter from
each Rating Agency stating that the amendment would not result in the
downgrading or withdrawal of the respective ratings then assigned to the
Certificates. Any such letter in and of itself will not represent a
determination as to the materiality of any amendment and will represent a
determination only as to the credit issues affecting any rating.
The Trustee, the Depositor, and the Master Servicer also may at any
time and from time to time amend this Agreement without the consent of the
Certificateholders to modify, eliminate or add to any of its provisions to the
extent necessary or helpful to (i) maintain the qualification of the REMIC as a
REMIC under the Code, (ii) avoid or minimize the risk of the imposition of any
tax on the 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 Master 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. No amendment shall
(i) reduce in any manner the amount of, or delay the timing of,
payments required to be distributed on any Certificate without the consent of
the Holder of such Certificate,
(ii) 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.
95
Notwithstanding any contrary provision of this Agreement, the Trustee
shall not consent to any amendment to this Agreement unless it shall have first
received an Opinion of Counsel, which opinion shall not be an expense of the
Trustee or the Trust Fund, to the effect that such amendment will not cause the
imposition of any tax on the REMIC created under this Agreement or the
Certificateholders or cause the REMIC created hereunder to fail to qualify as a
REMIC at any time that any Certificates are outstanding.
Promptly after the execution of any amendment to this Agreement
requiring the consent of Certificateholders, the Trustee shall furnish written
notification of the substance or a copy of such amendment to each
Certificateholder and each Rating Agency.
It shall not be necessary for the consent of Certificateholders under
this Section 10.01 to approve the particular form of any proposed amendment,
but it shall be sufficient if such consent shall approve the substance thereof.
The manner of obtaining such consents and of evidencing the authorization of
the execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
Nothing in this Agreement shall require the Trustee to enter into an
amendment without receiving an Opinion of Counsel (which Opinion shall not be
an expense of the Trustee or the Trust Fund), satisfactory to the Trustee that
(i) such amendment is permitted and is not prohibited by this Agreement and
that all requirements for amending this Agreement have been complied with; and
(ii) either (A) the amendment does not adversely affect in any material respect
the interests of any Certificateholder or (B) the conclusion set forth in the
preceding clause (A) is not required to be reached pursuant to this Section
10.01.
Section 10.02 Recordation of Agreement; Counterparts.
This Agreement is subject to recordation in all appropriate public
offices for real property records in all the counties or other comparable
jurisdictions in which any or all of the properties subject to the Mortgages
are situated, and in any other appropriate public recording office or
elsewhere, such recordation to be effected by the Master Servicer at its
expense, but only upon receipt of an Opinion of Counsel to the effect that such
recordation materially and beneficially affects the interests of the
Certificateholders.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 10.03 Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND
TO BE PERFORMED IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HERETO AND THE CERTIFICATEHOLDERS SHALL BE DETERMINED
IN ACCORDANCE WITH SUCH LAWS.
Section 10.04 Intention of Parties.
It is the express intent of the parties hereto that the conveyance (i)
of the Mortgage Loans by the Seller to the Depositor and (ii) of the Trust Fund
by the Depositor to the Trustee each be, and be
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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 or any Subsequent Transfer 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 or any Subsequent
Transfer 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 Master Servicer or the
Trustee and the appointment of any successor;
4. The repurchase or substitution of Mortgage Loans pursuant to
Section 2.03; and
5. The final payment to Certificateholders.
In addition, the Trustee shall promptly furnish to each Rating Agency
copies of the following:
1. Each report to Certificateholders described in Section 4.03;
2. Each annual statement as to compliance described in Section 3.17;
3. Each annual independent public accountants' servicing report
described in Section 3.18; and
4. Any notice of a purchase of a Mortgage Loan pursuant to Section
2.02, 2.03 or 3.11.
(b) All directions, demands and notices hereunder shall be in writing
and shall be deemed to have been duly given when delivered to (a) in the case
of the Depositor, IndyMac MBS, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: S. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇; (b) in the case of the Master
Servicer, IndyMac Bank, F.S.B., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ or such other address as may be hereafter
furnished to the Depositor and the Trustee by the Master Servicer in writing;
(c) in the case of the Trustee to the Corporate Trust Office, Deutsche Bank
National Trust Company, ▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention:
97
Mortgage Administration IN0215, Series 2002-A15, or such other
address as the Trustee may hereafter furnish to the Depositor or Master
Servicer; and (d) in the case of each of the Rating Agencies, the address
specified therefor in the definition corresponding to the name of such Rating
Agency. Notices to Certificateholders shall be deemed given when mailed, first
class postage prepaid, to their respective addresses appearing in the
Certificate Register.
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
Master Servicer without the prior written consent of the Trustee and Depositor.
Section 10.08 Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the trust created 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 in this Agreement 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.
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
98
of all Certificateholders. For the protection and enforcement of this
Section 10.08, each Certificateholder and the Trustee shall be entitled to any
relief that can be given either at law or in equity.
Section 10.09 Inspection and Audit Rights.
The Master Servicer agrees that, on reasonable prior notice, it will
permit any representative of the Depositor or the Trustee during the Master
Servicer's normal business hours, to examine all the books of account, records,
reports and other papers of the Master 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 Master Servicer hereby authorizes said accountants
to discuss with such representative such affairs, finances and accounts), all
at such reasonable times and as often as may be reasonably requested. Any
out-of-pocket expense incident to the exercise by the Depositor or the Trustee
of any right under this Section 10.09 shall be borne by the party requesting
such inspection; all other such expenses shall be borne by the Master Servicer
or the related Subservicer.
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.
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.
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* * * * * *
100
IN WITNESS WHEREOF, the Depositor, the Trustee, and the Seller and
Master Servicer have caused their names to be signed hereto by their respective
officers thereunto duly authorized as of the day and year first above written.
INDYMAC MBS, INC.
as Depositor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Associate
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Associate
INDYMAC BANK, F.S.B.
as Seller and Master Servicer
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
STATE OF CALIFORNIA )
: ss.:
COUNTY OF LOS ANGELES )
On this 25th day of November, 2002, 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]
STATE OF CALIFORNIA )
: ss.:
COUNTY OF ORANGE )
On this 25th day of November, 2002, before me, personally appeared
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, known to me to be an Associate 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]
STATE OF CALIFORNIA )
: ss.:
COUNTY OF ORANGE )
On this 25th day of November, 2002, before me, personally appeared
▇▇▇▇▇▇▇ ▇▇▇▇▇, known to me to be an Associate 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]
STATE OF CALIFORNIA )
: ss.:
COUNTY OF LOS ANGELES )
On this 25th day of November, 2002, 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]
Schedule I
MORTGAGE LOAN SCHEDULE [DELIVERED AT CLOSING TO TRUSTEE]
S-I-1
Schedule II
INDYMAC MBS, INC. MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2002-O
Representations and Warranties of the Seller/Master Servicer
Indy Mac Bank, F.S.B. ("IndyMac") hereby makes the representations and
warranties set forth in this Schedule II to the Depositor and the Trustee, as
of the Closing Date, or if so specified in this Schedule II, as of the Cut-off
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 master 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 Office of Thrift Supervision, the Federal
Deposit Insurance Corporation or any other governmental entity having
regulatory authority over IndyMac); and IndyMac is not in breach or
violation of any material indenture or other material agreement or
instrument, or in violation of any statute, order or regulation of any
court, regulatory body, administrative agency
S-II-1
or governmental body having jurisdiction over it (including the Office
of Thrift Supervision, the Federal Deposit Insurance Corporation or
any other governmental entity having regulatory authority over
IndyMac) which breach or violation may materially impair IndyMac's
ability to perform or meet any of its obligations under the Pooling
and Servicing Agreement.
(4) 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.
S-II-2
Schedule III
INDYMAC MBS, INC.
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2002-O
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 Initial
Cut-off Date with respect to each Initial Mortgage Loan and as of the related
Subsequent Transfer Date with respect to each Subsequent Mortgage Loan, or the
date of origination of the Mortgage Loan (as applicable). 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 master 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 Initial Mortgage Loan is
true and correct in all material respects as of the Closing Date and
with respect to each Subsequent Mortgage Loan is true and correct in
all material respects as of the related Subsequent Transfer Date.
(2) As of the Closing Date, all regularly scheduled monthly
payments due with respect to each Initial Mortgage Loan up to and
including the Due Date before the Initial 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 Initial Cut-off Date. As of each Subsequent Transfer
Date, all payments due with respect to each related Subsequent
Mortgage Loan prior to the related Subsequent Cut-off Date will have
been made; and as of each Subsequent Cut-off Date, no related
Subsequent Mortgage Loan will have been 30 or more days delinquent
during the twelve months prior to that Subsequent 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.
S-III-1
(5) As of the date of origination of each Mortgage Loan,
there was no delinquent tax or assessment lien against the related
Mortgaged Property.
(6) There is no valid offset, defense or counterclaim to any
Mortgage Note or Mortgage, including the obligation of the Mortgagor
to pay the unpaid principal of or interest on such Mortgage Note.
(7) There are no mechanics' liens or claims for work, labor
or material affecting any Mortgaged Property which are or may be a
lien 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) As of the Closing Date with respect to the Initial
Mortgage Loans and as of the related Subsequent Transfer Date with
respect to the Subsequent Mortgage Loans, to the best of the Seller's
knowledge, no Mortgaged Property has been materially damaged by water,
fire, earthquake, windstorm, flood, tornado or similar casualty
(excluding casualty from the presence of hazardous wastes or hazardous
substances, as to which the Seller makes no representation) so as to
affect adversely the value of the related Mortgaged Property as
security for the Mortgage Loan.
(9) Each Mortgage Loan at origination complied in all
material respects with applicable 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) As of the Closing Date with respect to the Initial
Mortgage Loans and as of the related Subsequent Transfer Date with
respect to the Subsequent Mortgage Loans, the Seller has not modified
the Mortgage in any material respect (except that a Mortgage Loan may
have been modified by a written instrument which has been recorded or
submitted for recordation, if necessary, to protect the interests of
the Certificateholders and which has been delivered to the Trustee);
satisfied, cancelled or subordinated such Mortgage in whole or in
part; released the related Mortgaged Property in whole or in part from
the lien of such Mortgage; or executed any instrument of release,
cancellation, modification or satisfaction with respect thereto.
(11) A lender's policy of title insurance together with a
condominium endorsement and extended coverage endorsement, if
applicable, in an amount at least equal to the Cut-off Date Principal
Balance of each such Mortgage Loan or a commitment (binder) to issue
the same was effective on the date of the origination of each Mortgage
Loan and each such policy is valid and remains in full force and
effect.
(12) Each Mortgage Loan was originated (within the meaning of
Section 3(a)(41) of the Securities Exchange Act of 1934, as amended)
by an entity that satisfied at the time of origination the
requirements of Section 3(a)(41) of the Securities Exchange Act of
1934, as amended.
(13) To the best of the Seller's knowledge, all of the
improvements which were included for the purpose of determining the
Appraised Value of the Mortgaged Property lie wholly within the
boundaries and building restriction lines of such property, and no
improvements on adjoining properties encroach upon the Mortgaged
Property, unless such failure to be wholly within such boundaries and
restriction lines or such encroachment, as the case may be, does not
have a material effect on the value of the Mortgaged Property.
S-III-2
(14) To the best of the Seller's knowledge, as of the date of
origination of each Mortgage Loan, no improvement located on or being
part of the Mortgaged Property is in violation of any applicable
zoning law or regulation unless such violation would not have a
material adverse effect on the value of the related Mortgaged
Property. To the best of the Seller's knowledge, all inspections,
licenses and certificates required to be made or issued with respect
to all occupied portions of the Mortgaged Property and, with respect
to the use and occupancy of the same, including certificates of
occupancy and fire underwriting certificates, have been made or
obtained from the appropriate authorities, unless the lack thereof
would not have a material adverse effect on the value of the Mortgaged
Property.
(15) The Mortgage Note and the related Mortgage are genuine,
and each is the legal, valid and binding obligation of the maker
thereof, enforceable in accordance with its terms and under applicable
law.
(16) The proceeds of the Mortgage Loan have been fully
disbursed and there is no requirement for future advances thereunder.
(17) The related Mortgage contains customary and enforceable
provisions which render the rights and remedies of the holder thereof
adequate for the realization against the Mortgaged Property of the
benefits of the security, including, (i) in the case of a Mortgage
designated as a deed of trust, by trustee's sale, and (ii) otherwise
by judicial foreclosure.
(18) With respect to each Mortgage constituting a deed of
trust, a trustee, duly qualified under applicable law to serve as
such, has been properly designated and currently so serves and is
named in such Mortgage, and no fees or expenses are or will become
payable by the Certificateholders to the trustee under the deed of
trust, except in connection with a trustee's sale after default by the
Mortgagor.
(19) At the applicable Cut-off Date, the improvements upon
each Mortgaged Property are covered by a valid and existing hazard
insurance policy with a generally acceptable carrier that provides for
fire and extended coverage and coverage for such other hazards as are
customarily required by institutional single family mortgage lenders
in the area where the Mortgaged Property is located, and the Seller
has received no notice that any premiums due and payable thereon have
not been paid; the Mortgage obligates the Mortgagor thereunder to
maintain all such insurance including flood insurance at the
Mortgagor's cost and expense. Anything to the contrary in this item
(19) notwithstanding, no breach of this item (19) shall be deemed to
give rise to any obligation of the Seller to repurchase or substitute
for such affected Mortgage Loan or Loans so long as the Master
Servicer maintains a blanket policy pursuant to the second paragraph
of Section 3.10(a) of the Pooling and Servicing Agreement.
(20) If at the time of origination of each Mortgage Loan, the
related Mortgaged Property was in an area then identified in the
Federal Register by the Federal Emergency Management Agency as having
special flood hazards, a flood insurance policy in a form meeting the
then-current requirements of the Flood Insurance Administration is in
effect with respect to the Mortgaged Property with a generally
acceptable carrier.
(21) To the best of the Seller's knowledge, there is no
proceeding pending or threatened for the total or partial condemnation
of any Mortgaged Property, nor is such a proceeding currently
occurring.
S-III-3
(22) To the best of the Seller's knowledge, there is no
material event which, with the passage of time or with notice and the
expiration of any grace or cure period, would constitute a material
non-monetary default, breach, violation or event of acceleration under
the Mortgage or the related Mortgage Note; and the Seller has not
waived any material non-monetary default, breach, violation or event
of acceleration.
(23) Each Mortgage File contains an appraisal of the related
Mortgaged Property in a form acceptable to FNMA or FHLMC.
(24) Any leasehold estate securing a Mortgage Loan has a
stated term at least as long as the term of the related Mortgage Loan.
(25) Each Mortgage Loan was selected from among the
outstanding fixed-rate one- to four-family mortgage loans in the
Seller's portfolio at the Closing Date as to which the representations
and warranties made with respect to the Mortgage Loans set forth in
this Schedule III can be made. No such selection was made in a manner
intended to adversely affect the interests of the Certificateholders.
(26) None of the Mortgage Loans are Cooperative Loans.
(27) The aggregate PO Percentage of the Stated Principal
Balances of the Discount Mortgage Loans does not exceed $306,155.83.
(28) None of the Mortgage Loans is a "high cost home loan" as
defined in the Georgia Fair Lending Act, as amended (the "Georgia
Act"), and all of the Mortgage Loans that are subject to the Georgia
Act comply with the requirements of such act.
S-III-4
Schedule IV
[Reserved]
S-IV-1
EXHIBIT A
[FORM OF SENIOR CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
[UNTIL THIS CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING
UNDERWRITING, NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE
TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A
REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AND IS NOT
INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF AN EMPLOYEE BENEFIT PLAN SUBJECT
TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"),
OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR AN OPINION OF COUNSEL IN
ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF
THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA
OR TO THE CODE WITHOUT THE 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 :
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
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 Master
Servicer or the Trustee referred to below or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or
insured by any governmental agency or instrumentality.
This certifies that is the registered owner of the Percentage Interest
evidenced by this Certificate (obtained by dividing the denomination of this
Certificate by the aggregate 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 master servicer (in
such capacity, the "Master 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.
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.
A-2
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.]
[NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED
UNLESS THE TRANSFEREE REPRESENTS TO THE TRUSTEE THAT SUCH TRANSFEREE IS NOT 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 PURCHASER IS AN INSURANCE COMPANY, 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. [SUCH REPRESENTATION SHALL BE DEEMED TO HAVE BEEN MADE TO
THE TRUSTEE BY THE TRANSFEREE'S ACCEPTANCE OF A CERTIFICATE OF THIS CLASS AND
BY A BENEFICIAL OWNER'S ACCEPTANCE OF ITS INTEREST IN A CERTIFICATE OF THIS
CLASS.] NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED
TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN
SUBJECT TO ERISA OR TO THE CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO
THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.]
B-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.
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
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 Master Servicer or the
Trustee referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that --------- is the registered owner of the Percentage Interest
evidenced by this Certificate (obtained by dividing the denomination of this
Certificate by the aggregate 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 master
servicer (in such capacity, the "Master 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-2
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
Master 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.]
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,
nor 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
Master Servicer, (ii) if the purchaser is an insurance company, a
representation that the purchaser is an insurance company which is purchasing
such Certificates with funds contained in an "insurance company general
account" (as such term is defined in Section V(e) of Prohibited Transaction
Class Exemption 95-60 ("PTCE 95-60")) and that the purchase and holding of such
Certificates are covered under 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 Master Servicer to the effect that
the purchase or holding of such Certificate will not result in a nonexempt
prohibited transaction under ERISA or the Code and will not subject the Trustee
to any obligation in addition to those undertaken in the Agreement, which
Opinion of Counsel shall not be an expense of the Trustee or the Master
Servicer. 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 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.
B-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
B-4
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.
[THIS CERTIFICATE REPRESENTS THE "TAX MATTERS PERSON RESIDUAL
INTEREST" ISSUED UNDER THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW
AND MAY NOT BE TRANSFERRED TO ANY PERSON EXCEPT IN CONNECTION WITH THE
ASSUMPTION BY THE TRANSFEREE OF THE DUTIES OF THE SERVICER UNDER SUCH
AGREEMENT.]
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 PURCHASER
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 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.
Residential Asset Securitization 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 Master Servicer or the
Trustee referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that -------- is the registered owner of the Percentage Interest
(obtained by dividing the denomination of this Certificate by the aggregate
Initial Certificate Balances of 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 master servicer (in such capacity, the "Master
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 or the office or agency maintained by the Trustee in
New York, New York.
C-2
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 satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA or Section 4975 of the Code, nor a person
acting on behalf of any such plan, which representation letter shall not be an
expense of the Trustee or the Master 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 and the Master Servicer to the effect that
the purchase or holding of such Class A-R Certificate will not result in a
nonexempt prohibited transaction provision of ERISA or the Code and will not
subject the Trustee to any obligation in addition to those undertaken in the
Agreement, which Opinion of Counsel shall not be an expense of the Trustee or
the Master Servicer. 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 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
EXHIBIT D
[FORM OF NOTIONAL AMOUNT CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
[UNTIL THIS CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING
UNDERWRITING, NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE
TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A
REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AND IS NOT
INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF AN EMPLOYEE BENEFIT PLAN SUBJECT
TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR A PLAN
SUBJECT TO SECTION 4975 OF THE CODE, OR A PERSON INVESTING ON BEHALF OF OR WITH
PLAN ASSETS OF SUCH A PLAN, OR AN OPINION OF COUNSEL IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING ELSE
TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON
BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO THE CODE WITHOUT THE
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") : Notional
Initial Notional Amount of all
Certificates of this Class : Notional
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 Master Servicer or
the Trustee referred to below or any of their respective affiliates. Neither
this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
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 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 master servicer
(in such capacity, the "Master 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 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
Master Servicer, (ii) if the purchaser is an insurance company, a
representation that the purchaser is an insurance company which is purchasing
such Certificates with funds contained in an "insurance company general
account" (as such term is defined in Section V(e) of Prohibited Transaction
Class Exemption 95-60 ("PTCE 95-60")) and that the purchase and holding of such
Certificates are covered under 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 Master 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 to any obligation in addition to those
undertaken in the Agreement, which Opinion of Counsel shall not be an expense
of the Trustee or the Master Servicer. 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 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.
Residential Asset Securitization 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 Master Servicer and the Trustee with the consent of
the Holders of Certificates affected by such amendment evidencing the requisite
Percentage Interest, as provided in the Agreement. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
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 or the office or agency
maintained by the Trustee in New York, New York, accompanied by a written
instrument of transfer in form satisfactory to the Trustee and the Certificate
Registrar duly executed by the holder hereof or such holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust Fund will be issued to the designated transferee or
transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Seller and the Trustee and any
agent of the Depositor or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and neither the
Depositor, the Trustee, nor any such agent shall be affected by any notice to
the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans in the mortgage pool is less than 10% of the
Cut-off Date Pool Principal Balance, the Master 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
[RESERVED]
F-1
EXHIBIT G
FORM OF INITIAL CERTIFICATION OF TRUSTEE
[date]
[Depositor]
[Master Servicer]
[Seller]
--------------------
--------------------
Re: Pooling and Servicing Agreement among IndyMac MBS, Inc., as
Depositor, IndyMac Bank, F.S.B., as Seller and Master Servicer,
and Deutsche Bank National Trust Company, as Trustee,
Mortgage Pass-Through Certificates, Series 200 -
---------------------------------------------------------------
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned,
as Trustee, hereby certifies that, as to each Mortgage Loan listed in the
Mortgage Loan Schedule (other than any Mortgage Loan listed in the attached
schedule), it has received:
(i) the original Mortgage Note, endorsed as provided in the following
form: "Pay to the order of ----------, without recourse"; and
(ii) a duly executed assignment of the Mortgage (which may be included
in a blanket assignment or assignments); provided, however, that it has
received no assignment with respect to any Mortgage for which the Mortgaged
Property is located in the Commonwealth of Puerto Rico.
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face and to such Mortgage
Loan.
The Trustee has made no independent examination of any
documents contained in each Mortgage File beyond the review specifically
required in the Pooling and Servicing Agreement. The Trustee makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File of any
of the Mortgage Loans identified on the Mortgage Loan Schedule, or (ii) the
collectability, insurability, effectiveness or suitability of any such Mortgage
Loan.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the Pooling and Servicing Agreement.
G-1
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By:
----------------------------------
Name:
Title:
G-2
EXHIBIT G-1
FORM OF DELAY DELIVERY CERTIFICATION (INITIAL MORTGAGE LOANS)
[date]
[Depositor]
[Master Servicer]
[Seller]
-------------------
-------------------
Re: Pooling and Servicing Agreement among IndyMac MBS, Inc., as
Depositor, IndyMac Bank, F.S.B., as Seller and Master Servicer,
and Deutsche Bank National Trust Company, as Trustee,
Mortgage Pass-Through Certificates, Series 200 -
---------------------------------------------------------------
Gentlemen:
Reference is made to the Initial Certification of Trustee relating to
the above-referenced series, with the schedule of exceptions attached thereto
(the "Schedule A"), delivered by the undersigned, as Trustee, on the Closing
Date in accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"). The undersigned
hereby certifies that, as to each Delay Delivery Mortgage Loan listed on
Schedule A attached hereto (other than any Mortgage Loan paid in full or listed
on Schedule B attached hereto) it has received:
(i) the original Mortgage Note, endorsed by the Seller or the
originator of such Mortgage Loan, without recourse in the
following form: "Pay to the order of -------------- without
recourse", with all intervening endorsements that show a
complete chain of endorsement from the originator to the
Seller, or, if the original Mortgage Note has been lost or
destroyed and not replaced, an original lost note affidavit
from the Seller, stating that the original Mortgage Note was
lost or destroyed, together with a copy of the Mortgage Note;
(ii) the original recorded Mortgage;
(iii) a duly executed assignment of the Mortgage to "Deutsche Bank
National Trust Company, as trustee under the Pooling and
Servicing Agreement dated as of November 1, 2002, 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-1-1
(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
(xi) 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 collectibility,
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-1-2
EXHIBIT H
FORM OF FINAL CERTIFICATION OF TRUSTEE
[date]
[Depositor]
[Master Servicer]
[Seller]
------------------
------------------
Re: Pooling and Servicing Agreement among IndyMac MBS, Inc., as
Depositor, IndyMac Bank, F.S.B., as Seller and Master Servicer,
and Deutsche Bank National Trust Company, as Trustee,
Mortgage Pass-Through Certificates, Series 200 -
---------------------------------------------------------------
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned,
as Trustee, hereby certifies that as to each Mortgage Loan listed in the
Mortgage Loan Schedule (other than any Mortgage Loan paid in full or listed on
the attached Document Exception Report) it has received:
(i) The original Mortgage Note, endorsed in the form provided in
Section 2.01(c) of the Pooling and Servicing Agreement, with all intervening
endorsements showing a complete chain of endorsement from the originator to the
Seller.
(ii) The original recorded Mortgage.
(iii) A duly executed assignment of the Mortgage in the form provided
in Section 2.01(c) of the Pooling and Servicing Agreement; provided, however,
that it has received no assignment with respect to any Mortgage for which the
Mortgaged Property is located in the Commonwealth of Puerto Rico, or, if the
Depositor has certified or the Trustee otherwise knows that the Mortgage has
not been returned from the applicable recording office, a copy of the
assignment of the Mortgage (excluding information to be provided by the
recording office).
(iv) The original or duplicate original recorded assignment or
assignments of the Mortgage showing a complete chain of assignment from the
originator to the Seller.
(v) The original or duplicate original lender's title policy and all
riders thereto or, any one of an original title binder, an original preliminary
title report or an original title commitment, or a copy thereof certified by
the title company.
Based on its review and examination and only as to the foregoing
documents, (a) such documents appear regular on their face and related to such
Mortgage Loan, and (b) the information set forth in items (i), (ii), (iii),
(iv), (vi) and (xi) 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.
H-1
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement. The Trustee makes no representations as to:
(i) the validity, legality, sufficiency, enforceability or genuineness of any
of the documents contained in each Mortgage File of any of the 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 master 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 the
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 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) which is
exempt from tax imposed by Chapter 1 of the Code (including the tax imposed by
Code Section 511 on unrelated business taxable income) on any excess inclusions
(as defined in Code Section 860E(c)(1)) with respect to any Class A-R
Certificate, (iv) rural electric and telephone cooperatives described in Code
Section 1381(a)(2)(c), (v) a Person that is not a citizen or resident of the
United States, a corporation, partnership, or other entity created or organized
in or under the laws of the United States or any political subdivision thereof,
or an estate or trust whose income from sources without the United States is
includible in gross income for federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States,
and (vi) any other Person so designated by the Depositor based upon an Opinion
of Counsel that the Transfer of an Ownership Interest in a Class A-R
Certificate to such Person may cause the Trust Fund to fail to qualify as a
REMIC at any time that certain Certificates are Outstanding. The terms "United
States," "State" and "International Organization" 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,
bank, joint stock company, trust (including any beneficiary thereof),
unincorporated organization or government or any agency or political
subdivision thereof.
"Transfer": Any direct or indirect transfer or sale of any Ownership
Interest in a Certificate, including the acquisition of a Certificate by the
Depositor.
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
I-5
EXHIBIT 2
to EXHIBIT I
Section 5.02(c) of the Agreement
(c) Each Person who has or who acquires any Ownership
Interest in a Residual Certificate shall be deemed by the acceptance or
acquisition of such Ownership Interest to have agreed to be bound by the
following provisions, and the rights of each Person acquiring any Ownership
Interest in a Residual Certificate are expressly subject to the following
provisions:
(i) Each Person holding or acquiring any Ownership
Interest in a Residual Certificate shall be a Permitted
Transferee and shall promptly notify the Trustee of any
change or impending change in its status as a Permitted
Transferee.
(ii) No Ownership Interest in a Residual Certificate
may be registered on the Closing Date or thereafter
transferred, and the Trustee shall not register the Transfer
of any Residual Certificate unless, in addition to the
certificates required to be delivered to the Trustee under
subparagraph (b) above, the Trustee shall have been furnished
with an affidavit (a "Transfer Affidavit") of the initial
owner or the proposed transferee in the form attached hereto
as Exhibit I.
(iii) Each Person holding or acquiring any Ownership
Interest in a Residual Certificate shall agree (A) to obtain
a Transfer Affidavit from any other Person to whom such
Person attempts to Transfer its Ownership Interest in a
Residual Certificate, (B) to obtain a Transfer Affidavit from
any Person for whom such Person is acting as nominee, trustee
or agent in connection with any Transfer of a Residual
Certificate and (C) not to Transfer its Ownership Interest in
a Residual Certificate or to cause the Transfer of an
Ownership Interest in a Residual Certificate to any other
Person if it has actual knowledge that such Person is not a
Permitted Transferee.
(iv) Any attempted or purported Transfer of any
Ownership Interest in a Residual Certificate in violation of
the provisions of this Section 5.02(c) shall be absolutely
null and void and shall vest no rights in the purported
Transferee. If any purported transferee shall become a Holder
of a Residual Certificate in violation of the provisions of
this Section 5.02(c), then the last preceding Permitted
Transferee shall be restored to all rights as Holder thereof
retroactive to the date of registration of Transfer of such
Residual Certificate. The Trustee shall be under no liability
to any Person for any registration of Transfer of a Residual
Certificate that is in fact not permitted by Section 5.02(b)
and this Section 5.02(c) or for making any payments due on
such Certificate to the Holder thereof or taking any other
action with respect to such Holder under the provisions of
this Agreement so long as the Transfer was registered after
receipt of the Transfer Affidavit, Transferor Certificate and
either the Rule 144A Letter or the Investment Letter. The
Trustee shall be entitled but not obligated to recover from
any Holder of a Residual Certificate that was in fact not a
Permitted Transferee at the time it became a Holder or, at
such subsequent time as it became other than a Permitted
Transferee, all payments made on such Residual Certificate at
and after either such time. Any such payments so recovered by
the Trustee shall be paid and delivered by the Trustee to the
last preceding Permitted Transferee of such Certificate.
I-6
(v) The Depositor shall use its best efforts to make
available, upon receipt of written request from the Trustee,
all information necessary to compute any tax imposed under
Section 860E(e) of the Code as a result of a Transfer of an
Ownership Interest in a Residual Certificate to any Holder
who is not a Permitted Transferee.
I-7
EXHIBIT J
FORM OF TRANSFEROR CERTIFICATE
-----------, 200-
IndyMac MBS, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: S. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Deutsche Bank National Trust Company
▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Trust Administration, Series 200 -
Re: IndyMac MBS, Inc.
Mortgage Pass-Through Certificates, Series 200 -, Class
-------------------------------------------------------
Ladies and Gentlemen:
In connection with our disposition of the above Certificates
we certify that (a) we understand that the Certificates have not been
registered under the Securities Act of 1933, as amended (the "Act"), and are
being disposed by us in a transaction that is exempt from the registration
requirements of the Act, (b) we have not offered or sold any Certificates to,
or solicited offers to buy any Certificates from, any person, or otherwise
approached or negotiated with any person with respect thereto, in a manner that
would be deemed, or taken any other action which would result in, a violation
of Section 5 of the Act and (c) to the extent we are disposing of a Class A-R
Certificate, we have no knowledge the Transferee is not a Permitted Transferee.
Very truly yours,
------------------------------
Print Name of Transferor
By:
--------------------------
Authorized Officer
J-1
EXHIBIT K
FORM OF INVESTMENT LETTER (NON-RULE 144A)
---------, 200-
IndyMac MBS, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: S. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Deutsche Bank National Trust Company
▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Trust Administration, Series 200 -
Re: IndyMac MBS, Inc.
Mortgage Pass-Through Certificates, Series 200 -, Class
--------------------------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates
we certify that (a) we understand that the Certificates are not being
registered under the Securities Act of 1933, as amended (the "Act"), or any
state securities laws and are being transferred to us in a transaction that is
exempt from the registration requirements of the Act and any such laws, (b) we
are an "accredited investor," as defined in Regulation D under the Act, and
have such knowledge and experience in financial and business matters that we
are capable of evaluating the merits and risks of investments in the
Certificates, (c) we have had the opportunity to ask questions of and receive
answers from the Depositor concerning the purchase of the Certificates and all
matters relating thereto or any additional information deemed necessary to our
decision to purchase the Certificates, (d) either (i) we are not an employee
benefit plan that is subject to the Employee Retirement Income Security Act of
1974, as amended, or a plan or arrangement that is subject to Section 4975 of
the Internal Revenue Code of 1986, as amended, nor are we acting on behalf of
any such plan or arrangement nor are we using the assets of any such plan or
arrangement to effect such acquisition or (ii) 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 that 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, and (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 with any conditions for transfer set forth in the Pooling
and Servicing Agreement.
K-1
Very truly yours,
------------------------------
Print Name of Transferee
By:
---------------------------
Authorized Officer
K-2
EXHIBIT L
FORM OF RULE 144A LETTER
-------------, 200-
IndyMac MBS, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: S. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Deutsche Bank National Trust Company
▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Trust Administration, Series 200 -
Re: IndyMac MBS, Inc.
Mortgage Pass-Through Certificates, Series 200 -, Class
-------------------------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates
we certify that (a) we understand that the Certificates are not being
registered under the Securities Act of 1933, as amended (the "Act"), or any
state securities laws and are being transferred to us in a transaction that is
exempt from the registration requirements of the Act and any such laws, (b) we
have such knowledge and experience in financial and business matters that we
are capable of evaluating the merits and risks of investments in the
Certificates, (c) we have had the opportunity to ask questions of and receive
answers from the Depositor concerning the purchase of the Certificates and all
matters relating thereto or any additional information deemed necessary to our
decision to purchase the Certificates, (d) either (i) we are not an employee
benefit plan that is subject to the Employee Retirement Income Security Act of
1974, as amended, or a plan or arrangement that is subject to Section 4975 of
the Internal Revenue Code of 1986, as amended, nor are we acting on behalf of
any such plan or arrangement or using the assets of any such plan or
arrangement to effect such acquisition, or (ii) 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, and (h) we are acquiring the
Certificates for our own account or for resale pursuant to Rule 144A and
further, understand that such
L-1
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.
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 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 Master 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 Master 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 Master Servicer hereby acknowledges and agrees as
follows:
(1) The Master Servicer shall hold and retain
possession of the Documents in trust for the benefit of the
Trustee, solely for the purposes provided in the Agreement.
(2) The Master Servicer shall not cause or knowingly
permit the Documents to become subject to, or encumbered by,
any claim, liens, security interest, charges, writs of
attachment or other impositions nor shall the Servicer assert
or seek to assert any claims or rights of setoff to or
against the Documents or any proceeds thereof.
(3) The Master Servicer shall return each and every
Document previously requested from the Mortgage File to the
Trustee when the need therefor no longer exists, unless the
Mortgage Loan relating to the Documents has been liquidated
and the proceeds thereof have been remitted to the
Certificate Account and except as expressly provided in the
Agreement.
(4) The Documents and any proceeds thereof,
including any proceeds of proceeds, coming into the
possession or control of the Master Servicer shall at all
times be earmarked for the account of the Trustee, and the
Master Servicer shall keep the Documents and any proceeds
separate and distinct from all other property in the Master
Servicer's possession, custody or control.
INDYMAC BANK, F.S.B.
By:
----------------------------
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 & Servicing Agreement dated November 1, 2002 among IndyMac
Bank, F.S.B. as Master 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: -----------------------
EXHIBIT O
FORM OF TRUSTEE CERTIFICATION
To: IndyMac MBS, Inc.
IndyMacBank, F.S.B.
Re: The Pooling & Servicing Agreement dated November 1, 2002 among IndyMac
Bank, F.S.B. as Master Servicer, Inc, IndyMac MBS, Inc. and Deutsche
Bank National Trust Company, as Trustee
----------------------------------------------------------------------
Ladies and Gentlemen:
In connection with the delivery of the Required Certifications on
behalf of the Trust Fund, we certify, based on the information provided by the
Master Servicer to the Trustee, the information contained in the Monthly
Statement, taken as a whole, does not contain an 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 they were made, not misleading as of
the last day of the period covered by any Required Certification.
DEUTSCHE BANK NATIONAL TRUST COMPANY
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Date:
---------------------------------------
O-1